EXHIBIT 4.20
--------------------------------------------------------------------------------
UNION-TRANSPORT INC.
SHARE INCENTIVE PLAN
--------------------------------------------------------------------------------
amended and restated as of 30 April 2002
Maitland & Co, ▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇
Eires
Tel: [+353] (▇▇) ▇▇▇ ▇▇▇▇
Fax: [(+353] (▇▇) ▇▇▇ ▇▇▇▇
(UTSIP300402amended&restated)
INDEX
CLAUSE PAGE
----
1. Interpretation 1
2. Establishment of Plan 2
3. Administration 2
4. Appointment and Removal of Trustees 2
5. Accounts 3
6. Expenses 3
7. Proceedings of Trustees 4
8. Protection of Trustees 4
9. Admission of Group Companies 5
10. Liquidation of the Company 6
11. Covenants 7
12. Notices 7
13. Governing Law, Forum, and Place of Administration and Power to 7
Change Same
i
THE SCHEDULE
THE RULES OF THE PLAN
PAGE
----
1. Definitions 9
2. Purpose 12
3. Eligibility 12
4. Conditions - General 12
5. Conditions Applicable to Offers 13
6. Disputes 21
7. Amendment of the plan 21
8. Administration 21
9. Profit and Losses 22
10. Duration of Plan 22
11. Listing of Shares 22
12. Summary in Annual Report 22
13. Notices 22
ii
THIS TRUST is made the 3rd day of December 1997 BETWEEN:
(1) UTi WORLDWIDE INC., ("UTiW") formerly UNION-TRANSPORT INC) whose
registered office is situate at 9 Columbus Centre, Pelican Drive, Road
Town, Tortola, British Virgin Islands ("the Company") and
(2) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (who has since resigned in favour of ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ as trustee), Mr Rory ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ("the Original Trustees") (referred to hereinafter as "the
Trustees")
and will be known as the Union-Transport Share Incentive Plan ("the Plan").
WHEREAS:
(A) The Company wishes to establish a share incentive plan for the benefit of
the employees of the Union-Transport Group ("the Plan") for the purpose
set out in Rule 2 of the rules of the Plan ("the Rules") which are
contained in the schedule hereto and are intended to form part of the
Plan.
(B) The Company has appointed the Original Trustees to be the first Trustees
of the Plan and the Original Trustees have agreed to so act.
(C) In 2000, UTiW transferred its stock exchange listing from the Luxembourg
Stock Exchange to the Nasdaq stock market and adopted a new share
incentive plan, the UTi Worldwide Inc. 2000 Stock Option Plan. It is
therefore considered it appropriate for the Plan to be amended and
restated so as bring its provisions into greater harmony with those of the
2000 Stock Option Plan, thus enhancing a better understanding among
participants and achieving a more effective application of the Plan for
their benefit. Accordingly, the Trustees, upon the recommendation of the
Company and with the Necessary Consent (as defined in 2.1), and having
taken due account of the above considerations hereby amend and restate the
provisions of the Plan as set out hereafter PROVIDED THAT to the extent
that any amended and restated provision of the Plan shall alter, impair or
otherwise adversely affect the rights of any Participant in respect of any
Grants made and accepted or Options exercised prior to the date of such
amendment and restatement, such provision shall, without the consent of
the Participant concerned, have no effect as against such Participant in
respect of such prior Grants or Options.
NOW THIS DEED WITNESSES and it is hereby declared as follows:
1. Interpretation
The provisions of Rule 1 ("Definitions") of the Rules shall apply to this
Deed and expressions defined in Rule 1 of the Rules shall have the same
meanings where used in this Deed.
-1-
2. Establishment of Plan
2.1 The Company hereby establishes the Plan (to which the Rules,
approved by the Company as of 27 August 1997 in substantially the
same form, under irrevocable trusts (subject to alteration as
hereinafter provided) as on and from the date hereof.
2.2 The Plan (and Rules) shall be known as THE UTSIP ("the Plan").
2.3 The shares to be offered in terms of the Plan shall be vested in and
held by or under the control of the Trustees and upon irrevocable
trusts and with and subject to the powers and provisions of the
Trust Deed.
3. Administration
3.1 The administration and management of the Plan shall be vested in the
Trustees.
3.2 The Trustees shall have power to employ such agents as they may, in
their sole discretion, see fit in the transaction of any business of
the Plan, including the payment of benefits, and any valid receipt
therefor given to such agents shall be a good and sufficient
discharge to the Trustees.
3.3 The Trustees may from time to time in writing authorise any two or
more persons as they shall determine jointly to draw cheques on any
banking accounts or to endorse any cheque or to give receipts and
discharges and every such receipt and discharge shall be as valid
and effectual as if it were given by the Trustees.
4. Appointment and Removal of Trustees
4.1.1 There shall be at least one Trustee if a body corporate or at least
two Trustees if individuals and the remainder of this Clause is
subject to this proviso.
4.1.2 The Company may by Deed appoint new or additional trustees of the
Plan up to any number subject to such limit (if any) as may for the
time being be imposed by law but so that any person whether an
individual or a body corporate may be appointed and if appointed may
act as a new or additional Trustee hereof notwithstanding that he
she or it is resident outside the island of Guernsey.
4.2 The Company may remove any Trustee from his trusteeship by serving
upon such Trustee notice in writing such removal to take effect
immediately upon service thereof. The Trustee on removal shall be
deemed to have retired from the trust and shall forthwith execute
such
-2-
documents and carry out such things, if any, as may be necessary to
give proper effect thereto.
4.3 The Trustees or any of them may resign by serving upon the Company
not less than one (1) month's notice in writing such resignation to
take effect at the expiration of such notice. The Trustees or
Trustee so resigning shall be deemed to have retired from the trust
and shall forthwith execute such documents and do such things, if
any, as may be necessary to give proper effect thereto.
4.4 Any Trustee or any director or officer of any body corporate being a
Trustee shall be entitled to retain any benefit to which he is
beneficially entitled under the Plan.
4.5 No decision of the Trustees shall be invalidated by any personal
interest of any Trustee (or any director or officer of any body
corporate being a Trustee) therein but nothing in this sub-Clause
shall affect any duty owed by anyone who has a direct or indirect
interest in such decision to disclose that interest to the other
Trustees and to the Company.
5. Accounts
5.1 The Trustees shall cause proper accounts and records to be kept for
the purposes of the Plan.
5.2 The accounts of the Plan shall be prepared regularly and may be
audited by an auditor qualified to act as such who if appointed
shall report in writing to the Trustees the result of the audit.
5.3 The Trustees shall appoint and remove such auditor with the consent
of the Company and the Trustees, the Company and the auditor shall,
and where appropriate, the Company shall procure that the relevant
Group company shall comply with the requirements of the Occupational
Pension Schemes (Auditors) Regulations 1987 of the United Kingdom as
to changes of auditor, the disclosure of information to the auditor
and other matters.
6. Expenses
6.1 Any Trustee or any director or officer of a body corporate being a
Trustee who is engaged in any profession or business shall be
entitled directly or indirectly to be paid all usual professional or
other charges and to retain all usual commissions for work or
business done or transacted by or through him or his firm in
connection with the trusts of the Plan whether in the ordinary
course of his profession or business or not and whether or not of
-3-
a nature requiring the employment of such professional or business
person.
6.2 Any body corporate which is a trustee of the Plan shall be entitled
to charge and be paid such remuneration for its services as shall
from time to time be agreed between such body corporate and the
Company.
7. Proceedings of Trustees
Unless and until a body corporate is appointed as a sole Trustee of the
Plan:
7.1 all decisions of the Trustees must be unanimous;
7.2 a resolution in writing signed by all the Trustees shall be as valid
and effective as if it had been passed at a meeting of the Trustees
duly convened and held and any such resolution may be signed in one
or more counterparts and by Trustees on separate counterparts, each
of which when so executed and delivered, shall be an original but
all the counterparts shall together constitute one and the same
instrument;
7.3 any documents (other than Deeds) requiring to be signed by the
Trustees may be signed by any two of them with the authority of and
on behalf of them all.
8. Protection of Trustees
8.1 The Trustees may act on the advice or opinion of any actuary,
accountant, lawyer, surveyor, stockbroker or other professional
person or expert employed or instructed by them or by any of the
Employers and on the advice of any medical man employed or consulted
by the Trustees or by any Group company or by any person applying
for or in receipt of any pension or benefit; and shall not be liable
for any loss thereby occasioned.
8.2 No Trustee and no director or officer of any body corporate being a
Trustee shall be liable for loss occasioned by any act or omission
on the part of himself or any of his co-Trustees or any agent or
servant employed by him or by any of his co-Trustees (whether or not
such employment was strictly necessary or expedient) unless such
loss was attributable to his personal dishonesty or to the wilful
commission by him personally of a positive act consciously known by
him to constitute a breach of trust.
8.3 Should any provision contained in Clause 8 be held to be invalid
under any applicable Statute or rule of law and if any Trustee
hereof (or any director or officer of any body corporate being a
trustee hereof), thereby becomes liable to any loss or damage which
would otherwise have been excluded, then in addition to all
indemnities conferred upon trustees
-4-
generally by law, the Group companies hereby jointly and severally
covenant to indemnify and keep indemnified each such Trustee or
other person against all actions claims demands costs and expenses
arising in respect thereof or in connection therewith.
8.4 If a Trustee ceases to be a Trustee hereof or becomes for any reason
incapable of acting as a Trustee hereof such Trustee shall be
released from all claims demands actions proceedings and accounts of
any kind on the part of any person (whether in existence or not)
actually or prospectively interested under this Plan other than and
except only for actions:
8.4.1 resulting from or arising out of or in connection with any fraud or
breach of trust to which such Trustee or (in the case of a corporate
Trustee any of its officers or employees) was a party or privy;
8.4.2 to recover from such Trustee property held under the terms of the
Plan or the proceeds of such property in the possession of such
Trustee or previously received by such Trustee (or in the case of a
corporate Trustee by any of its officers or employees) and converted
to his own use.
8.5 The Trustees shall be under no liability or duty to see that any
contributions or other moneys payable under the Plan to them or as
they shall direct are in fact paid.
8.6 The Trustees shall not be obliged to institute, maintain or defend
any legal proceedings in relation to the Plan but may do so if they
in their absolute discretion think fit.
9. Admission of Group Companies
9.1 The Company may invite any corporate body being a subsidiary of or
associated in business with the Company to participate in the Plan
as a Group Company. Upon such corporate body covenanting with the
Trustees to be bound by the Trust Deed and to pay to the Plan all
contributions as may from time to time be agreed between such
corporate body and the Trustees, those of its employees and former
employees as the corporate body shall invite, with the consent of
the Company, to become members of the Plan shall become eligible as
Members on the same terms as employees of the Company.
9.2 Upon ceasing to be a subsidiary of or associated in business with
the Company or upon being directed so to do by the Company a Group
Company shall cease to contribute to the Plan.
-5-
10. Liquidation of the Company
10.1 In the event that:
10.1.1 the Company shall enter into liquidation and another body corporate
shall (whether in contemplation of or after such liquidation) enter
into an agreement with the Trustees and with the Company or its
liquidator to perform the obligations of the Company under the
Trust Deed; or
10.1.2 if the undertaking of the Company is acquired by or vested in any
other body corporate and such other body corporate shall either
enter into an agreement with the Trustees and with the Company or
its liquidator or shall be bound by virtue of or pursuant to any
statutory provision or any order of the Court made thereunder or
otherwise to perform the said obligations; or
10.1.3 if the Company shall be dissolved by virtue of or pursuant to any
statutory provision or any order of the Court made thereunder or
otherwise and another body corporate shall be bound by virtue of or
pursuant to any statutory provision or any order of the Court made
thereunder or otherwise to perform the said obligations
then and in any such event the Company shall thereby be released from all
the said obligations and such other body corporate as aforesaid shall be
deemed to be substituted for the Company as the person liable to perform
the said obligations and the Trust Deed shall thenceforth have effect as
if such other body corporate had been a party to and had executed the
Trust Deed in place of the Company.
10.2 In the event that:
10.2.1 the Company shall enter into liquidation and if at the time of such
liquidation or at any time thereafter there shall not be any such
agreement as is referred to in Clause 10.1.1 and the Trustees shall
be of the opinion that there is no reasonable expectation of such
an agreement being concluded; or
10.2.2 the undertaking of the Company is acquired by or vested in any body
corporate and if at the time of such acquisition or at any time
thereafter no such agreement as is referred to in Clause 10.1.2 and
such other body corporate shall not be bound as mentioned in the
said Clause 10.1.2 and the Trustees shall be of the opinion that
there is no reasonable expectation of such an agreement being
concluded or of any other body corporate becoming so bound; or
10.2.3 the Company shall be dissolved in the manner referred to in Clause
10.1.3 and if at the time of such dissolution or at any time
thereafter no other
-6-
body corporate shall be bound as mentioned in the said Clause
10.1.3 and the Trustees shall be of the opinion that there is no
reasonable expectation of any other body corporate becoming so
bound;
then and in any such event the Trustees may wind up the Plan or may
themselves alone (without the participation of the Company) by Deed
exercise the power to alter or modify any of the trusts powers and
provisions of the Trust Deed conferred upon the Company by Clause 7 and
may make such arrangements or enter into such agreements as they shall in
their uncontrolled discretion think fit for the continuance of the Plan
subject to the application (if any) of the rule against perpetuities.
11. Covenants
The Company and if appropriate and in respect of its period of
participation in the Plan any Group Company each for its own part hereby
covenants with the Trustees that it will from time to time and at all
times until the determination of the trusts of the Plan and the
dissolution of the Fund duly perform and observe all and singular the
conditions stipulations and provisions which under the Plan ought from
time to time to be performed and observed by it and shall duly and
punctually pay or procure to be duly and punctually paid to the Trustees
or as the Trustees shall direct all moneys which under the Plan ought so
to be paid by it.
12. Notices
Any notice to be served hereunder on a Trustee or any other individual
shall be sent by post or fax to his last known address and any notice to
be served hereunder on the Company, a Group Company or any other body
corporate shall be sent by post or fax to the registered office or
principal place of business for the time being thereof and any notice
shall be deemed to be served 7 working days after the same shall have been
posted or 12 working hours after the same shall have been transmitted by
fax and in proving service it shall only be necessary to prove that the
notice was properly posted or faxed in accordance with the requirements of
this Clause.
13. Governing Law, Forum and Place of Administration and Power to Change Same
13.1 The Trust Deed and the Rules shall in all respects be governed by
and interpreted according to the laws of The Bailiwick of Guernsey.
13.2 The courts of Guernsey shall be the forum for the administration of
these trusts.
13.3 Notwithstanding the provisions of subclauses 13.1 and 13.2 the
Trustees shall have power (subject to the application (if any) of
the rule against perpetuities) to:
-7-
13.3.1 carry on the general administration of these trusts in any
jurisdiction in the world whether or not such jurisdiction is for
the time being the proper law of these trusts or the courts of such
jurisdiction are for the time being the forum for the
administration of these trusts and whether or not the Trustees or
any of them are for the time being resident or domiciled in or
otherwise connected with such jurisdiction; and
13.3.2 declare by Deed that the interpretation of the Trust Deed and the
Rules shall from the date of such Deed be subject to the law of
some other state or territory in any part of the world (not being
any place where any of the trust powers and provisions declared and
contained in this Deed would not be enforceable or effective under
its law or the trusts hereof would not be irrevocable) PROVIDED
that each time such a Deed takes effect the Trustees shall be at
liberty to make such alterations or additions to the terms powers
and provisions of the Plan as the Trustees may consider necessary
or desirable to ensure that the terms powers and provisions of the
Plan shall (with those alterations and additions) be as valid and
effective as if they were made before the Deed took effect.
IN WITNESS whereof this document is executed as amended and restated as of
30 April 2002.
THE COMPANY ) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Chief Executive Officer/
Director
RORY ▇▇▇▇▇▇▇ ▇▇▇▇
who hereunto )
affixed his personal seal ) /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
) ▇.▇.▇▇▇▇/Authorised
Signatory
HIS SEAL
-8-
THE SCHEDULE
The Rules of the Plan
Adopted by resolution of shareholders of the company passed on 27 August 1997.
1. Definitions
In this deed, unless inconsistent with the context -
1.1 the following words and expressions shall have the following
meanings -
"auditors" the auditors for the time being of the
company;
"capitalization issue" the issue of shares on a capitalisation of
the company's profits and/or reserves
(including the share premium account and/or
the capital redemption reserve fund);
"capitalization share" a fully paid share allotted in a
capitalisation issue by the company;
"the company" UTi Worldwide Inc., (formerly
Union-Transport Inc.);
"the directors" the Board of Directors of UTi Worldwide Inc.;
"employee" anyone (including a salaried director)
employed in a full time capacity by a Group
company and who has not given or been given
notice to leave the Group;
"Group" the company, its direct and indirect
subsidiaries and such other company which is
not a subsidiary but which the company
directly or indirectly controls and the term
"Group company" means the company and any
such company;
"offer" an offer made to an offeree to purchase
shares in terms of the plan;
"offeree" an employee, or any personal entity
nominated by an employee pursuant to 5.10
hereof, nominated in terms of the provisions
of the plan to receive an offer;
"the offer date" the date on which an offer is made to an
offeree in terms of the plan;
-9-
"offer price" an amount fixed by the directors, which
shall be not less than the lower of USD 9.69
per share (this being the number resulting
from the 1 for 7.63 combination of shares
which occurred on October 18, 2000 in
connection with the Company's listing on the
Nasdaq Stock Market, Inc. ("Nasdaq") (which
number was originally USD 1.27 per
Union-Transport Inc share prior to the
combination of shares and listing on the
Nasdaq)) and the last sale price on the date
of offer, or if no sale occurred on that
date, the last sale price on the business
day immediately prior to the date of offer,
or, if no sale occurred on such date, then
the mean between the highest bid and lowest
asked prices as of the close of business on
the business day immediately prior to the
date of offer, as reported on the Nasdaq,
for so long as the Plan Shares are traded on
the National Market System (the "NMS") of
The Nasdaq; provided that the amount shall
in no event be lower than the amount that
the share is entitled to as a preference, if
any, in the assets of the Company upon
liquidation of the Company) and, in the case
of a share acquired by a participant in
terms of a rights offer, the subscription
price of such share; and provided further
that
if the Shares are listed although not traded
on the NMS but are otherwise traded
over-the-counter in the United States, the
mean between the highest bid and lowest
asked prices quoted on Nasdaq as of the
close of business on the date of valuation,
or, if on such day such Shares are not
quoted in Nasdaq, the mean between the
representative bid and asked prices on such
date in the United States over-the-counter
market as reported by the OTC Bulletin Board
or the National Quotation Bureau, Inc., or
any similar successor organization;
If neither of the above clauses applies but
the listing of the Plan Shares on the Nasdaq
is not suspended, the Offer Price shall be
determined by the Trustees in good faith
after consultation with the Liaison
Committee. Such determination shall be
conclusive and binding on all persons.
-10-
"participant" an offeree who has accepted and has notified
the secretary that he accepts an offer with
effect from the offer date and, where
required by the context his heirs,
executors, administrators or trustees in
bankruptcy or personal entity.
"personal entity" a family trust, discretionary or otherwise
established by or at the instance of the
employee for the benefit of himself and his
immediate family;
"the plan" the plan, to be known as "the
Union-Transport Share Incentive Plan" or as
the UTi - UTISIP", set out in this deed, as
may be amended from time to time in terms of
clause 7;
"the purchase date" the date on which an offer is accepted by an
offeree pursuant to the plan;
"the record date" the close of business on the day the
register of the company will be closed to
determine entitlement to participate in a
rights offer or capitalisation issue, as the
case may be;
"rights offer" the offer of any securities of the company
or of any other body corporate to all
holders of equity shares pro rata to their
holdings at the record date;
"the secretary" the secretary of the company for the time
being;
"share" an ordinary share in the capital of the
company and any shares offered by way of a
capitalisation issue or a rights offer;
"trustees" the trustees for the time being of the
Union-Transport Share Incentive Trust,
established by the company by instrument
dated 3 December 1997;
1.2 Words importing -
1.2.1 the singular shall include the plural and vice versa;
1.2.2 any gender shall include any other gender;
1.2.3 natural persons shall include bodies corporate and personal
entities nominated pursuant to 5.10 hereof and vice versa.
-11-
1.3 The plan shall be governed by the laws of the Bailiwick of Guernsey,
Channel Islands.
2. Purpose
The plan is intended as an incentive to employees, including salaried
directors, of the Group to identify themselves more closely with the
activities of the Group and to promote its continued growth by giving them
the opportunity of acquiring shares in the company.
3. Eligibility
3.1 Employees shall be eligible to and shall participate in the plan
only if and to the extent that offers are made to and are accepted
by them in terms of this instrument.
3.2 The directors in their sole discretion may from time to time direct
the trustees to offer shares to specified employees. The shares to
be offered will be shares to be subscribed for or purchased by the
trustees.
4. Conditions - General
4.1 No offer shall be made to an offeree under the plan in respect of a
number of shares which, together with any plan shares then held by
the participant at that date, would exceed 131,061 ordinary shares
which number represents the original 1,000,000 share limit as
adjusted for the 1 for 7.63 combination of shares which occurred
on October 18, 2000.
4.2 The maximum number of shares which may be issued or transferred in
terms of the plan shall be limited to 131,061 ordinary shares of the
company (which number represents the 1,000,000 ordinary shares
originally reserved for issuance under the plan as adjusted for the
1 for 7.63 combination of shares which occurred on October 18,
2000), but shares repurchased by the trustees pursuant to the plan,
cancelled or the rights to which have lapsed and shares released to
participants, shall not be included in determining that maximum.
4.3 The limit set out in 4.1 shall be adjusted in such manner as the
auditors shall certify to be appropriate as a result of -
4.3.1 the sub-division or consolidation of shares; or
4.3.2 the issue of additional shares whether by way of a
capitalisation issue or a rights offer.
-12-
5. Conditions applicable to offers
5.1 General provisions
An offer --
5.1.1 shall be subject to and governed by the provisions of this
deed;
5.1.2 shall be personal to the offeree to whom it is addressed, and
may only be accepted by and, subject to 5.10 hereof, may not
be ceded or assigned by him;
5.1.3 shall be an offer to sell to the offeree, for issue or
transfer to and for registration in his name, the number of
shares specified by the directors at the offer price, payable
in terms of the plan, against a pledge of the shares by the
offeree in favour of the trustees, as security for his
indebtedness. Each offer shall be accompanied by a form of
acceptance, a pledge and a cession or assignment and mandate
(in such form as may be prescribed by the directors);
5.1.4 shall be accepted by notice in writing delivered to the
secretary, together with the forms of acceptance, pledge and
cession and mandate duly completed by the offeree within 21
days of the offer date, provided that failure to accept the
offer by that date shall cause the offer to lapse without
compensation;
5.1.5 may be accepted in part (but only for 10 shares or multiples
of 10 shares) or in full.
5.2 Whole contract
An offer and acceptance pursuant to the plan shall constitute the
whole contract between the trustees and a participant, provided
that, if a participant shall leave the employ of the Group, all
terms of the participant's employment contract or contracts which
survive the termination of the participant's employ, shall remain in
force and effect and such participant's rights under the plan shall
be read subject thereto.
5.3 Trustees to subscribe for or purchase shares
The trustees shall in respect of shares for which there has been a
valid acceptance of an offer:
5.3.1 where necessary subscribe for or purchase and pay for those
shares; and
5.3.2 procure the issue or the transfer of those shares to the
participant;
-13-
and the offer price of the shares so accepted shall be deemed to be
a loan by the trustees to the participant and subject to repayment
in terms of the plan.
5.4 Interest
The directors shall in the case of an offer which has been accepted,
if and whenever they may in their discretion deem it necessary or
advisable, be entitled to require that the participant pays interest
on his indebtedness to the trustees at such rate during such period
or periods and payable at such time or times as the trustees may
decide. In exercising this discretion, the trustees shall give the
participant twenty one (21) days' notice in writing of both the
requirement to pay interest and the percentage of interest that is
to be charged.
5.5 Dividends
A participant in the case of an offer which has been accepted shall
be deemed to have authorised payment to the trustees of any
dividends payable in respect of his shares. In the event of the
directors exercising their discretion in terms of 5.4 hereof, such
dividends will be applied by the trustees to the interest due on the
moneys borrowed by the participant in respect of the acquisition of
the shares acquired and held by the participant pursuant to the
plan.
5.6 Payment for shares by participant
Subject to the provisions of 5.4 and 5.7 payments to the trustees in
respect of the indebtedness of a participant shall be appropriated
firstly towards reduction or settlement of such indebtedness arising
out of the first offer and acceptance of shares, and thereafter in
reduction or settlement of any such indebtedness arising out of
subsequent offers and acceptances of shares, in chronological order.
Payment of the offer price shall be made in full to the trustees,
subject to the provisions of 5.13 hereof, failing which such offer
shall lapse without compensation.
5.7 Release of shares to participant
5.7.1 Shares offered and accepted pursuant to the plan shall be
registered in the name of the participant but shall be held in
pledge by the trustees until they qualify for release.
5.7.2 As and when the capital indebtedness of a participant is paid
to the trustees in full, the trustees shall release the
shares, or the corresponding number of shares to him.
-14-
5.7.3 Except where the directors of the company in their absolute
discretion otherwise decide, a participant shall not be
entitled to have his shares released except on a cumulative
basis to an extent not exceeding one quarter of his shares on
31 December following the third anniversary of the purchase
date, and thereafter one quarter on each following 31
December.
5.7.4 Notwithstanding the provisions of this clause the directors of
the company may in writing direct the trustees to release at
any time, to such participants as are specified by them, up to
such number of shares as may be specified by them, against
payment by the participant of his full indebtedness in respect
of the shares to be released.
5.8 Rights offer
In the event of a rights offer by the company to its shareholders of
any shares for subscription ("rights offer shares"), then -
5.8.1 letters of allotment issued by the trustees to the participant
in respect of rights offer shares shall be delivered, within a
period of fourteen (14) days after the issue to the
participant of those letters of allotment, by the participant
to the trustees, and shall be accompanied by a notice in
writing, from the participant, indicating either his intention
to take up his rights offer shares, pursuant to the provisions
of 5.8.2 or 5.8.3, or renouncing his entitlement to those
rights offer shares in favour of the trustees pursuant to
5.8.4. Subject to the directors' discretion to extend this
notice period, failure by the participant to give such notice
within fourteen (14) days shall cause the rights offer shares
to lapse without compensation.
5.8.2 if a participant wishes to accept the rights offer on the
basis that the rights offer shares taken up by him are
regarded as having been released from the provisions of the
plan, he may do so if he pays the subscription price in full
out of his own funds;
5.8.3 if a participant wishes to accept the rights offer on the
basis that the rights offer shares taken up by him are
regarded as shares purchased by him pursuant to the plan and,
provided the directors agree to fund through the trustees the
subscription of rights offer shares of all participants to the
extent to which they wish to participate in that rights offer
pursuant to this 5.8.3, the following provisions will apply:
-15-
5.8.3.1 the participant shall, for no consideration, cede or
assign and transfer to the trustees his right to
subscribe for the rights offer shares, insofar as
those rights relate to shares purchased by him
pursuant to the plan, and the trustees shall subscribe
for the appropriate number of rights offer shares, at
the subscription price, for allotment and issue to and
registration in the name of the participant, who they
shall be obliged to purchase them from the trustees,
at the subscription price;
5.8.3.2 the rights offer shares shall be deemed to be shares
sold to a participant pursuant to the plan and the
purchase price of those shares shall be included in
the indebtedness of the participant to the trustees;
5.8.3.3 the rights offer shares shall be dealt with as if they
had been part of the offer and acceptance of the
original shares purchased under the plan to which they
relate, and they shall also be pledged to the trustees
as security for the indebtedness of the participant;
5.8.3.4 the participant shall execute all documents which may
be necessary for the purpose of implementing the
provisions of this clause 5.8;
5.8.4 to the extent to which the participant does not wish to accept
the rights offer he shall renounce his right to subscribe for
any rights offer shares free of charge in favour of the
trustees, who shall endeavour to dispose of the rights offer
shares at the subscription price for such shares, and shall
set off the proceeds of that disposal against the
participant's indebtedness to the trustees.
5.9 Capitalisation issue
In the event of the allotment and issue of any shares by the company
to its shareholders by way of capitalisation issue, where
capitalisation shares accrue in respect of shares acquired by
acceptance of offers by a participant as have not been released to
him, such capitalisation shares shall be registered in the name of
the participant and although credited as fully paid, shall be held
in pledge by the trustees as shares acquired and not released
pursuant to the plan. Only when, and in proportion to, those shares
in respect of which the capitalisation shares were issued have been
paid in full, will the capitalisation shares be released. If the
trustees re- purchase any shares in terms of 5.11, 5.12 or 5.13, any
capitalisation shares issued in respect of those shares shall
simultaneously be acquired by the trustees without payment of any
additional consideration.
-16-
5.10 Restriction on pledging plan shares
A participant shall not be entitled to pledge (except to the
trustees, as provided in this deed), cede, assign or transfer or
otherwise encumber any of his plan shares, or any rights in respect
of his plan shares, until those shares shall have been released by
the trustees as provided in 5.7; but these restrictions will not
prohibit a participant from ceding, assigning or transferring any
rights which he may have in respect of plan shares to a personal
entity, provided he remains personally liable for his obligations in
respect of those shares.
5.11 Death or retirement of participant
If a participant:
5.11.1 dies, prior to the release of all his shares under the plan,
then his estate shall, during a period of one year from the
date of death, have the right to the release of all such
shares or such lesser number as his executors may nominate,
provided the indebtedness outstanding in respect of the
shares which are so nominated to be released has been
discharged.
5.11.2 retires on or after the earliest date of retirement permitted
in terms of the rules of the Company's pension fund, then he
shall have the right during a period of one year from the
date of his retirement to the release of all his shares under
the plan or such lesser number as he may nominate, provided
he has discharged the indebtedness outstanding in respect of
the shares to be released.
Provided that, at the end of the period of one (1) year from
the date of death or from the date of his retirement or
sooner if so requested by the participant or the
participant's deceased estate or his personal entity, as the
case may be, the trustees shall be entitled, obliged and
authorised to re-purchase from the participant or the
participant's deceased estate or his personal entity, who
shall be obliged to sell, at the offer price, those shares of
a participant acquired pursuant to the plan which have not
been released, and to offset the participant's indebtedness
against the purchase price payable by the trustees.
5.12 Disability of Employee
If an Employee's employment or service with the Company ceases by
reason of the Employee's Disability, the participant concerned shall
have the right, at any time within twelve (12) months after such
cessation by reason of Disability, but only to the extent that, at
the date of such
-17-
cessation, the participant's rights had vested, to pay the trustees
such amount as may be owing in respect of the Plan Shares and
thereby effect their release from pledge
5.13 Leaving the employ of the Company
If an Employee or participant is dismissed or leaves the service of
the Group, for any reason, with or without cause, other than because
of retirement on or after the earliest date of retirement permitted
in terms of the rules of the applicable Group company's pension
fund, or if the estate of a participant is sequestrated, whether
provisionally or finally, the directors shall instruct the trustees
to re-purchase from the participant (or from his personal entity or
insolvent estate, as the case may be) who shall be obliged to
re-sell to the trustees, any unreleased shares at the offer price,
which will be set off against the participant's indebtedness to the
trust, immediately on the participant receiving or giving notice
that his employment with the Group is being terminated.
The directors may, at their sole discretion, waive the instruction
to the trustees and allow the participant to have his unreleased
shares under the plan released on the terms and conditions agreed
upon in any settlement agreement between the participant and the
Group.
5.14 If participant does not pay indebtedness
If, on the expiry of seven (7) years from the purchase date, a
participant has not paid his indebtedness to the trustees in full,
then the trustees shall be entitled, obliged and authorised to call
upon him in writing to do so within 30 days after the date of that
request, and if the participant fails to comply with the request, or
pays only a portion of the amount owing then that participant's
rights to the relevant shares acquired by him pursuant to the plan
will lapse without compensation. The trustees shall not be entitled
to take proceedings against the participant for recovery of the
indebtedness, but shall be entitled, obliged and authorised to
re-purchase from him or from his personal entity or deceased estate,
as the case may be, and he or they will be obliged to sell to the
trustees at the offer price, the shares acquired by him pursuant to
the plan in respect of which the indebtedness is outstanding, within
the period of thirty (30) days referred to and to off set his
indebtedness against the purchase price of those shares.
5.15 Repurchased shares
In any of the events referred to in 5.12, 5.13 and 5.14, shares
repurchased by the trustees will be transferred in terms of the plan
directly to other participants, or will be held by the trustees for
subsequent sale to future
-18-
participants or otherwise dealt with, subject to the requirements of
the Nasdaq Stock Market, as the directors in their discretion may
direct, but if repurchased shares are again offered to the same
participant at a more favourable price, then the number of the
shares so offered shall be included in determining the maximum
number of shares which may be issued or transferred pursuant to the
plan and pursuant to 4.2 hereof.
5.16 Authority of trustees to sign documents
The trustees will be deemed to have been irrevocably authorised to
sign on behalf of a participant (or the personal entity or the
deceased or insolvent estate of a participant, as the case may be)
obliged to sell any shares to the trustees in terms of the plan, the
appropriate agreement of sale and purchase (in a form prescribed by
the directors) and the necessary transfer of those shares.
5.17 Securities Law Requirements
5.17.1 Legality of Issuance
No Shares shall be issued upon the acceptance of any offer
unless and until the Company has determined that:
A. it and the participant have taken all actions required
to register the offer and sale of the Plan Shares under all
applicable securities laws, including the Securities Act, or
to perfect an exemption from the registration requirements
thereof;
B. any applicable listing requirement of any stock
exchange on which the Shares are listed has been satisfied;
and
C. any other applicable provision of law has been
satisfied.
5.17.2 Restrictions on Transfer
Regardless of whether the offering and sale of Shares under
the Plan has been registered under the Securities Act or has
been registered or qualified under the securities laws of any
country, the Company may impose restrictions upon the offer
of Shares of Options and the sale, pledge or other transfer
of Shares (including the placement of appropriate legends on
stock certificates) if, in the judgment of the Company and
its counsel, such restrictions are necessary or desirable in
order to achieve compliance with the provisions of the
Securities Act, the securities laws of any country or any
other law. In the event that the sale of Shares under the
Plan is not registered under the Securities Act or the
securities law of
-19-
any other country, but exemptions are available which require
that the participant make various representations and
warranties, the Company may require such representations and
warranties from the participant as are deemed necessary or
appropriate by the Company and its counsel as a condition
precedent to offering or issuing any Shares. To the extent
that restrictive legends or other notations are required with
regard to any Shares, the Company shall be entitled to put
such legends or notations as appropriate in its register of
members and, to the extent that the certificates are issued
representing such Shares, the Company shall be entitled to
place such restrictive legends and notations as are deemed
necessary or appropriate by the Company and its counsel in
order to comply with any applicable law. In the event the
sale of the Shares is not registered under the Securities
Act, to the extent the Company and its counsel deem it
advisable, the Shares shall bear the following restrictive
legend:
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). ANY TRANSFER OR PLEDGE OF SUCH SECURITIES WILL BE
INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN
EFFECT AS TO SUCH TRANSFER OR IN THE OPINION OF COUNSEL FOR
THE ISSUER SUCH REGISTRATION IS UNNECESSARY IN ORDER FOR SUCH
TRANSFER OR PLEDGE TO COMPLY WITH THE ACT."
Any determination by the Company and its counsel in
connection with any of the matters set forth in this clause
5.17.2 shall be conclusive and binding on all persons.
The Company may, but shall not be obligated to, register or
qualify the sale of Shares under the Securities Act, the
securities laws of any country or any other applicable law.
The Company shall not be obligated to take any affirmative
action in order to cause the sale of Shares under the Plan to
comply with any law.
If, in the opinion of the Company and its counsel, any legend
placed on a stock certificate representing Shares sold under
the Plan is no longer required, the holder of such
certificate shall be entitled to exchange such certificate
for a certificate representing the same number of Shares but
without such legend.
-20-
5.18 Shares ceasing to be shares pursuant to the plan
For the purpose of the plan, shares shall cease to be shares
pursuant to the plan:
5.18.1 when they are released in terms of 5.7 hereof; or
5.18.2 when they are rights offer shares taken up in terms of 5.8.2
hereof; or
5.18.3 when they are released in the event of participants retiring,
dying or leaving the employ of the company in terms of 5.11
and 5.12 hereof; or
5.18.4 when they are re-purchased by the trustees pursuant to the
plan.
6. Disputes
Any dispute arising under the plan shall be referred for decision to the
auditors, who shall act as experts, and not as arbitrators, and whose
decision shall be final and binding.
7. Amendment of the plan
The directors may, from time to time, subject to the approval of any stock
exchange on which the shares are listed, by resolution, amend all or any
of the provisions of the plan (whether retrospectively or otherwise), but
no amendment shall adversely affect the rights of any participant or his
personal entity or deceased estate, as the case may by, in respect of
released shares pursuant to the plan, and no amendment affecting the total
number of shares subject to the plan or the maximum number of shares which
may be allocated to any one participant shall be made unless approved by
the members of the company in general meeting.
8. Administration
The Group companies will bear all costs of and incidental to the
implementation and administration of the plan, including any stamp duty
payable in respect of the issue or transfer of any shares, in proportion
to the number of shares pursuant to the plan held by their respective
employees or their personal entities or deceased estates, as the case may
be, from time to time and will, from time to time, as and when necessary,
provide the trustees with all requisite funds and facilities. The company
will provide all secretarial, accounting administrative, legal and
financial advice and services, office accommodation, stationery and so
forth, to enable the trustees to properly and efficiently perform their
duties and functions in terms of the plan.
-21-
9. Profit and Losses
The Group companies will bear any losses sustained, and be entitled to any
profits made by the trustees relating to shares pursuant to the plan
issued to their respective employees or assigned and transferred to their
personal entities or acquired by their deceased estate as the case may be.
10. Duration of the plan
The plan shall continue for such period as it may be lawful for the Plan
to continue or otherwise until the expiration of a period of one hundred
years from the date of establishment of the Plan unless earlier terminated
by a resolution of the directors or by a resolution of the company in
general meeting, but that termination shall not affect or modify any
existing rights or obligations of participants, their personal entities or
deceased estate, as the case may be, and the trustees shall continue to
administer the plan for so long as may be necessary to give effect to
those rights and obligations.
11. Listing of shares
The directors shall, on registration of any shares in the name of the
trustees, a participant or his personal entity or deceased estate, as the
case may be, make application for a listing, quotation and permission to
deal in such shares, on any stock exchange or stock market on which the
shares are listed.
12. Summary in annual report
A summary of the number of shares issued as at the beginning of the
financial year, the number of shares issued during the financial year and
the balance of shares available for issue pursuant to the plan as at the
financial year end, shall be included in each annual report to members of
the company.
13. Notices
Any notification or other notice in writing which the trustees are
required to give or may wish to give to any participant or employee in
relation to the plan, shall be sufficiently given if delivered to the
participant or employee by hand or sent by mail by prepaid cover addressed
to the participant or employee at the last address known to the trustees
as being the address of the participant or employee. Any certificate,
notification or other notice in writing required to be given to the
trustees shall be properly given if sent by telefax (and confirmed by
mail) to or delivered to the trustees at: --
-22-
▇.▇. ▇▇▇▇▇▇▇
c/o Praxis Trustees Limited
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇ & 15
Sarnia House, Le Truchot
▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ OR AT:
MAITLAND MANAGEMENT SERVICES SA
▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇.▇.▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(Attention : ▇.▇.▇▇▇▇▇▇/▇.▇'▇▇▇▇▇▇)
Tel: ▇▇▇▇ ▇▇ ▇▇ ▇▇ -- 1
Fax: ▇▇▇▇ ▇▇ ▇▇ ▇▇ -- 66
-23-