As filed with the Securities and Exchange Commission on August 23, 2005
Registration No.
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
SPIRENT PLC
(Exact name of registrant as specified in its charter)
England and Wales None
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Spirent House
Crawley Business Quarter
Fleming Way, Crawley
West Sussex RH10 9QL
United Kingdom
(Address of Principal Executive Offices including Zip Code)
Spirent Stock Incentive Plan
(f/k/a Spirent Stock Option Plan)
(Full title of the Plan)
Frank Pizzi
Spirent Inc
1300 Veterans Memorial Highway
Hauppauge, New York 11788
(631) 851 3660
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
Proposed
Title of maximum
securities offering Proposed maximum Amount of
to be Amount to be price per aggregate registration
registered registered unit offering price fee
__________ _____________ ___________ ________________ ____________
Ordinary 20,000,000(2) $0.97555(3) $19,511,000(3) $2,296.45
Shares(1)
________________________________________________________________________________
(1) The ordinary shares (31/3 pence nominal value per share) ("Ordinary
Shares") of Spirent plc (the "Company") being registered hereunder will
be offered pursuant to the Spirent Stock Incentive Plan (f/k/a the
"Spirent Stock Option Plan") (the "Plan"). Awards of Ordinary Shares
under the Plans may be delivered in the form of American Depositary
Shares of the Company ("ADSs"), which will be represented by American
Depositary Receipts ("ADRs").
(2) Such indeterminate number of additional Ordinary Shares as may be
distributed by the operation of the recapitalization provisions of the
Plan is hereby also registered.
(3) Computed pursuant to Rule 457(h) solely for the purpose of determining
the registration fee, based upon (i) the average of the high and low
market price per Ordinary Share on the London Stock Exchange on August
18, 2005 of GBP0.545 U.K. Pounds Sterling ("Pounds") per Ordinary Share
and (ii) the conversion ratio of Pounds to U.S. Dollars of GBP1.00 =
$1.79, which was the conversion ratio on August 18, 2005, as reported
in the Financial Times.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act, as amended (the "Securities Act"), and the "Note" to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are
the following documents heretofore filed with or furnished to the Securities and
Exchange Commission (the "Commission") by Spirent plc (the "Registrant" or the
"Company") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"):
(a) The Company's annual report on Form 20-F filed with
the Commission on May 18, 2005 under the Exchange Act
containing audited financial statements for the
Company's latest fiscal year;
(b) The Company's report on Form 6-K furnished to the
Commission on August 11, 2005 under the Exchange Act
containing interim financial statements for the first
half of 2005;
(c) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the annual report
referred to in (a) above; and
(d) The description of the Company's Ordinary Shares set
forth in the Company's registration statement on Form
20-F filed with the Commission on June 27, 2001, and
the description of American Depositary Receipts
("ADRs") relating to the Ordinary Shares set forth
therein, including any amendment or report filed for
the purpose of updating such descriptions.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Article 144 of the Company's Articles of Association provides:
(1) Subject to the provisions of and so far as may be
consistent with the Statutes, every Director, Secretary or other officer
of the Company shall be entitled to be indemnified by the Company against
all costs, charges, losses, expenses and liabilities incurred by him in
the execution and/or discharge of his duties and/or the exercise of his
powers and/or otherwise in relation to or in connection with his duties,
powers or office including (without prejudice to the generality of the
foregoing) any liability incurred by him in defending any proceedings,
civil or criminal, which relate to anything done or omitted or alleged to
have been done or omitted by him as an officer or employee of the Company
and in which judgment is given in his favour (or the proceedings are
otherwise disposed of without any finding or admission of any material
breach of duty on his part) or in which he is acquitted or in connection
with any application under any statute for relief from liability in
respect of any such act or omission in which relief is granted to him by
the Court.
(2) Without prejudice to paragraph (A) of this Article
the Directors shall have the power to purchase and maintain insurance for
or for the benefit of any persons who are or were at any time Directors,
officers or employees of any Relevant Company (as defined in paragraph
(C) of this Article) or who are or were at any time trustees of any
pension fund or employee share scheme in which employees of any Relevant
Company are interested, including (without prejudice to the generality of
the foregoing) insurance against any liability incurred by such persons
in respect of any act or omission in the actual or purported execution
and/or discharge of their duties and/or in the exercise or purported
exercise of their powers and/or otherwise in relation to their duties,
powers or offices in relation to any Relevant Company, or any such
pension fund or employee share scheme.
(3) For the purpose of paragraph (B) of this Article
"Relevant Company" shall mean the Company, any holding company of the
Company or any other body, whether or not incorporated, in which the
Company or such holding company or any of the predecessors of the Company
or of such holding company has or had any interest whether direct or
indirect or which is in any way allied to or associated with the Company,
or any subsidiary undertaking of the Company or of such other body.
The relevant provision of the Companies Act 1985 is Section
310, which provides:
(1) This section applies to any provision, whether
contained in a company's articles or in any contract with the company or
otherwise, for exempting any person (whether an officer or not) employed
by the company as auditor from, or indemnifying him against, any
liability which by virtue of any rule of law would otherwise attach to
him in respect of any negligence, default, breach of duty or breach of
trust of which he may be guilty in relation to the company.
(2) Except as provided by the following subsection, any
such provision is void.
(3) This section does not prevent a company-
(a) from purchasing and maintaining for any such
auditor insurance against any such liability, or
(b) from indemnifying any such auditor against
any liability incurred by him-
(i) in defending any proceedings
(whether civil or criminal) in which judgment is
given in his favour or he is acquitted, or
(ii) in connection with any application
under section 727 (general power to grant relief in
case of honest and reasonable conduct) in which
relief is granted to him by the court.
Section 727 of the Companies Act 1985 provides:
(1) If in any proceedings for negligence, default, breach
of duty or breach of trust against an officer of a company or a person
employed by a company as auditor (whether he is or is not an officer of
the company) it appears to the court hearing the case that that officer
or person is or may be liable in respect of the negligence, default,
breach of duty or breach of trust, but that he has acted honestly and
reasonably, and that having regard to all the circumstances of the case
(including those connected with his appointment) he ought fairly to be
excused for the negligence, default, breach of duty or breach of trust,
that court may relieve him, either wholly or partly, from his liability
on such terms as it thinks fit.
(2) If any such officer or person as above-mentioned has
reason to apprehend that any claim will or might be made against him in
respect of any negligence, default, breach of duty or breach of trust, he
may apply to the court for relief, and the court on the application has
the same power to relieve him as under this section it would have had if
it had been a court before which proceedings against that person for
negligence, default, breach of duty or breach of trust had been brought.
(3) Where a case to which subsection (l) applies is being
tried by a judge with a jury, the judge, after hearing the evidence, may,
if he is satisfied that the defendant or defender ought in pursuance of
that subsection to be relieved either in whole or in part from the
liability sought to be enforced against him, withdraw the case in whole
or in part from the jury and forthwith direct judgment to be entered for
the defendant or defender on such terms as to costs or otherwise as the
judge may think proper.
In addition, the Company has obtained directors' and officers'
liability insurance coverage, which includes coverage to reimburse the Company
for certain amounts which it may be required or permitted by law or its Articles
of Association to pay directors or officers in respect of claims made against
those directors or officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
An Exhibit Index, containing a list of all exhibits filed with
this Registration Statement, is included on page 9.
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which it offers or
sells securities, a post-effective amendment to this Registration
Statement to:
(i) include any Prospectus required by Section
10(a)(3) of the Securities Act, unless the information is
contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
(ii) reflect in the Prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement, unless the information is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the change in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement; and
(iii) include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities being registered which remain unsold
at the termination of the offering.
(b) Subsequent Exchange Act Documents. The undersigned
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Indemnification. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Crawley, England on the
23rd day of August, 2005.
SPIRENT PLC
By: /s/Anders Gustafsson
Name: Anders Gustafsson
Title: Chief Executive Officer
Each person whose signature appears below does hereby make,
constitute and appoint Anders Gustafsson, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Spirent plc (the "Company"),
the Registration Statement of the Company on Form S-8 (the "Registration
Statement") for the registration of 20,000,000 Ordinary Shares of the Company
(to be converted upon exercise of options into American Depositary Shares of the
Company), in connection with the Spirent Stock Incentive Plan (f/k/a the
"Spirent Stock Option Plan") (the "Plan") and any and all amendments (including
post-effective amendments) to the Registration Statement, and file the same
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities Act of
1933 (the "Act"), and any and all other instruments which either of said
attorneys-in-fact and agents deems necessary or advisable to enable the Company
to comply with the Act, the rules, regulations and requirements of the SEC in
respect thereof, and the securities or Blue Sky laws of any State or other
governmental subdivision, giving and granting to each of said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing whatsoever necessary or appropriate to be done in and about the premises
as fully to all intents as he or she might or could do if personally present at
the doing thereof, with full power of substitution and resubstitution, hereby
ratifying and confirming all that his or her said attorneys-in-fact and agents
or substitutes may or shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
/s/ Anders Gustafsson Chief Executive and Director 23 August 2005
Anders Gustafsson (Principal Executive Officer)
/s/ E Hutchinson Finance Director 23 August 2005
Eric G. Hutchinson (Principal Financial and
Accounting Officer and Director)
/s/ John Weston Director (Chairman) 23 August 2005
John P. Weston
/s/ J A Wyness Director 23 August 2005
James A.D. Wyness
Marcus Beresford Director
/s/ A F Given Director 23 August 2005
Andrew F. Given
/s/ Kurt Hellstrom Director 23 August 2005
Kurt R. Hellstrom
/s/ P Goran Ennerfelt Director 23 August 2005
P. Goran Ennerfelt
/s/ F D'Alessio Director 23 August 2005
Frederick D'Alessio
/s/ Frank Pizzi Authorized U.S. Representative 23 August 2005
Frank Pizzi
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
4.1 Memorandum and Articles of Association of the Registrant, as
amended on May 4, 2005 (incorporated by reference from
Exhibit 1.1 to the Registrant's annual report on Form 20-F
filed on May 18, 2005).
4.2 Description of the Company's Ordinary Shares (incorporated
by reference from the Registrant's registration statement on
Form 20-F filed on June 27, 2001) and amendments thereto
(incorporated by reference from any amendment or report
filed for purpose of updating such descriptions).
4.3 Form of the Registrant's ADRs for Ordinary Shares of 31/3p
each (incorporated by reference from Exhibit A to Form F-6
filed on June 27, 2001).
4.4 Form of Deposit Agreement as amended and restated as of May
5, 2000, as further amended and restated as of March 23,
2001, as further amended and restated as of July 10, 2001,
among Spirent plc, The Bank of New York as Depositary, and
all Owners and holders from time to time of ADRs issued
thereunder (incorporated by reference from Exhibit A to Form
F-6 filed on June 27, 2001).
5 Opinion of Linklaters, English solicitors to the Registrant.
23.1 Consent of Linklaters to the filing of the opinion contained
in Exhibit 5 to this Form S-8.
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (filed herewith - see pages 7-8 of the
Registration Statement).
99.1 Spirent Stock Incentive Plan, as amended (f/k/a the "Spirent
Stock Option Plan") (filed herewith).
Exhibit 5 and 23.1
One Silk Street
London EC2Y 8HQ
Telephone (44-20) 7456 2000
Facsimile (44-20) 7456 2222
DX Box Number 10 CDE
Direct Line (44-20) 7456 5466
Direct Fax (44-20) 7456 2222
dan.schuster-woldan@linklaters.com
The Board of Directors
Spirent plc
Spirent House
Crawley Business Quarter
Fleming Way
Crawley
West Sussex
RH10 2QL
23 August 2005
Our Ref DSCW
Dear Sirs
Spirent plc (the "Company")
1 This opinion is delivered in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement") to
be filed under the United States Securities Act of 1933 with
respect to 20,000,000 ordinary shares of nominal value 3 1/3 pence
each of the Company ("Ordinary Shares"), which Ordinary Shares
will be offered pursuant to the Spirent plc Stock Incentive Plan,
as amended (the "Plan").
2 This opinion is limited to English law as applied by the English
courts and is given on the basis that it will be governed by and be
construed in accordance with English law.
3 For the purposes of this opinion we have examined and relied on
copies of such corporate records and other documents, including
the Registration Statement, and reviewed such matters of law, as we
have deemed necessary or appropriate for the purpose of this opinion.
4 Upon the basis of and subject to the foregoing, but subject to any
matters not disclosed to us, it is our opinion: (i) that (if being
issued pursuant to the Plan) upon such Ordinary Shares being issued
and allotted and the subscription or exercise price therefore having
been paid pursuant to the Plan (and, in the case of any non-cash
payment of the subscription or exercise price, such payment having
been valued in accordance with section 108 of the Companies Act 1985
(as amended) if required), such Ordinary Shares will have been duly
authorised and validly issued and will be fully paid and that
no further contributions in respect thereof will be required to be
made to the Company by the holders thereof, by reason solely of
their being such holders; or (ii) that (if such Ordinary Shares are
transferred to holders of options or awards pursuant to the Plan)
such Ordinary Shares will have been duly authorised and validly
issued and fully paid and that no further contributions in respect
thereof will be required to be made to the Company by the holders
thereof, solely by reason of their being such holders.
5 This opinion is given to you solely for use in connection with the
filing of the Registration Statement. This opinion is strictly
limited to matters dealt with herein and does not extend to and is
not to be read as extending by implication to any other matter.
6 We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit
that we are within the category of persons whose consent is
required within Section 7 of the Securities Act of 1933, or the
rules and regulations of the Securities and Exchange Commission
thereunder.
Yours faithfully
/s/ Linklaters
Linklaters
A list of the names of the partners and their professional qualifications is
open to inspection at the above office. The partners are solicitors, registered
foreign lawyers or European lawyers. The firm is regulated by the Law Society.
Please refer to www.linklaters.com/regulation for important information on the
regulatory position of the firm.
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Spirent Stock Incentive Plan of Spirent plc of the
reference to our firm in "Item 3 - Key Information" and of our report dated May
18, 2005, with respect to the consolidated financial statements and schedule of
Spirent plc included in its Annual Report (Form 20-F) for the year ended
December 31, 2004 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
London, England
August 22, 2005
Exhibit 99.1
SPIRENT PLC
SPIRENT STOCK INCENTIVE PLAN
Linklaters
One Silk Street
London EC2Y 8HQ
Telephone (44-20) 7456 2000
Facsimile (44-20) 7456 2222
Ref 01/145/N Keuning-Price
SPIRENT PLC
SPIRENT STOCK INCENTIVE PLAN
AS AMENDED AND RESTATED EFFECTIVE JUNE 23, 2004
1 Purposes and Scope of Plan
This Spirent Stock Incentive Plan (the "Plan") of Spirent plc (the
"Company") (registered in England and Wales under number 470893) was
formerly designated as the Spirent Stock Option Plan. Under the
Plan, Awards (as defined below in Section 20.1) shall be
granted to employees of the Company and its subsidiaries enabling
such employees to acquire Shares (as defined below in Section 20.14),
ADRs and/or cash.
The Plan is designed to enable the Company to attract and
retain the best available personnel, to provide additional
incentive to employees and to promote the success of the Company.
These objectives will be promoted through the granting to
employees of Awards including (i) incentive stock options
("Incentive Options") which are intended to qualify under Section 422
of the Code, (ii) Options which are nonqualified stock options
("NQSOs"), and (iii) stock appreciation rights ("SARs"). Vesting of
the Awards granted under the Plan shall be in accordance with the
criteria established by the Remuneration Committee (the
"Committee") in consultation with the Company's Chief Executive
Officer. All Options granted hereunder shall be NQSOs unless
specifically designed as Incentive Options.
The Awards offered pursuant to this Plan are a matter of separate
inducement and are not in lieu of any salary or other compensation for
services.
Capitalized terms used herein without definition shall have the
meanings set for in Section 20 hereunder.
2 Amount of Stock Subject to the Plan
The total number of Shares of the Company reserved and available for
distribution pursuant to Awards granted hereunder shall not exceed, in
the aggregate, one hundred and seventy-five million (175,000,000)
shares of the ordinary shares, three and one-third pence par value,
per share of the Company or the equivalent in ADRs, subject to
adjustment described below, but in no case shall the number of Shares
so reserved, when aggregated with all other Shares reserved for
issuance under any one or more other plans involving issuance of
Shares, exceed 30 percent of the outstanding ordinary shares of the
Company.
Shares which may be acquired under the Plan may be either authorised
but unissued Shares or Shares of issued stock, or both, at the
discretion of the Company. Whenever any outstanding Award or portion
thereof expires, is cancelled, is forfeited or is otherwise
terminated for any reason without having been exercised or payment
having been made in respect of the entire Award, the Shares
subject to the expired, cancelled, forfeited or otherwise
terminated portion of the Award may again be the subject of Awards
granted hereunder. In the event of any stock dividend, stock split,
consolidation, combination or exchange of Shares, recapitalisation,
reduction of the Company's share capital, redemption or repurchase
of Shares or other change in the capital structure of the Company,
corporate separation or division (including, but not limited to,
split-up, spin-off or distribution to Company shareholders other
than a normal cash dividend), rights offering, merger,
reorganisation, partial or complete liquidation, or any other
corporate transaction or event having an effect similar to any of
the foregoing, (i) the aggregate number of Shares reserved for
issuance under the Plan, (ii) the number of Shares subject to
outstanding Awards, (iii) the grant or exercise price or Base Price
(as defined below in Section 7.4) with respect to any Award and any
other characteristics or terms of the Awards as the Committee
shall deem necessary or appropriate to reflect equitably the
effects of such changes to the Holders of Awards, shall be
appropriately substituted for new shares or adjusted, as determined
by the Committee in its discretion. Notwithstanding the foregoing,
(i) each such adjustment with respect to an Incentive Option shall
comply with the rules of Section 424(a) of the Code, and (ii) in no
event shall any adjustment be made which would render any Incentive
Option granted hereunder other than an incentive stock option for
the purposes of Section 422 of the Code without the consent of the
grantee.
All Shares shall be subject to the Company's Memorandum and Articles of
Association.
3 Administration
The Committee will have sole and exclusive authority to administer
the Plan. The Committee shall consist of no fewer than two (2) members
of the Board of Directors, each of whom shall be a "Non-Employee
Director" within the meaning of Rule 16b-3 or any successor rule
or regulation ("Rule 16b-3") promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Committee
shall administer the Plan so as to comply at all times with Rule
16b-3. The Committee shall, at its discretion, be entitled to delegate
approval of grants to a sub-committee.
Subject to the express provisions of the Plan, the Committee shall
have authority, in its discretion and in consultation with the
Company's Chief Executive Officer, to (i) select employees of the
Company and its subsidiaries as recipients of Awards; (ii)
determine the number and type of Options to be granted; (iii)
determine the number of SARs to be granted; (iv) determine the terms
and conditions, not inconsistent with the terms hereof, of any
Awards granted; (v) determine the performance conditions, if any,
applicable to any Awards granted; (vi) waive, at any time, any
performance condition applicable to an Award; (vii) adopt, alter and
repeal such administrative rules, guidelines and practices
governing the Plan as it shall, from time to time, deem advisable;
(vi) interpret the terms and provisions of the Plan and any Award
granted and any agreements relating thereto; and (vii) otherwise
supervise the administration of the Plan.
The determination of the Committee on matters referred to in
this Section 3 shall be conclusive.
4 Eligibility
Awards may be granted only to employees of the Company and its
subsidiaries, who are not members of the Committee; provided, that
no person shall be eligible for any Award if the granting of such
Award to such person would prevent the satisfaction by the Plan of
the general exemptive conditions of Rule 16b-3. The Plan shall not
confer upon any employee any right with respect to continuation of
employment by the Company or any subsidiary, nor shall it interfere in
any way with his or her right or the Company's or any subsidiary's
right to terminate his or her employment or at any time, with or
without Cause (as defined below in Section 20.5).
5 Grant of Awards
Awards may be granted under the Plan within 42 days starting on any of
the following:
(i) that day of announcement of the Company's results through a
Regulatory Information Service for any period;
(ii) in the case of new employees or employees who have been
promoted, the following quarter days of the year: 1
January, 1 April, 1 July and 1 October;
(iii) any day on which the Committee resolves that exceptional
circumstances exist which justify the granting of Awards; or
(iv) any day on which changes to the legislation or regulations
affecting Awards are announced, effected or made.
In addition Awards may be granted under the Plan to employees
who have been recently appointed or promoted on such dates, at
monthly intervals, as the Committee may determine. In exceptional
circumstances, Awards may be granted to employees who have been
recently appointed or promoted on a date falling between such monthly
grant dates.
It may happen that the Committee cannot grant Awards due to
restrictions imposed by statute, order, regulation or government
directive or by any code adopted by the Company based on the Model
Code. If this occurs, the Committee may grant Awards within 42 days
after the lifting of such restrictions.
6 Stock Options
6.1 General
Any Options granted under the Plan shall be in such form as the
Committee may from time to time approve and the provisions of the
Option grants need not be the same with respect to each Holder.
Options granted under the Plan may be either Incentive Options or
NQSOs. The Committee may grant to any Holder, Incentive Options, NQSOs
or both types of Options.
Options granted under the Plan shall be subject to the following terms
and conditions, and shall contain such additional terms and
conditions not inconsistent with the terms of the Plan, as the
Committee deems appropriate. Each Option grant shall be evidenced
by an agreement executed on behalf of the Company by an officer or
officers designated by the Committee and accepted by the Holder.
Such agreement shall describe the Options, state that such Options are
subject to all the terms and provisions of the Plan and shall contain
such other terms and provisions, consistent with the Plan, as the
Committee may approve.
6.2 Exercise Price and Payment
The price per Share under any Option granted hereunder shall be such
amount as the Committee shall determine, provided, however, that such
price shall not be less than: (i) 100 per cent of the fair market value
of the Shares subject to such Option, as determined below, at the
date the Option is granted (110 percent in the case of an Incentive
Option granted to any person who, at the time the Option is granted,
owns stock of the Company or any subsidiary or parent of the Company
possessing more than ten percent of the total combined voting power
of all classes of stock of the Company or of any subsidiary or parent
of the Company (a "10 percent Shareholder")) and (ii) if Shares are
to be subscribed, the nominal value of the Shares, if higher.
If the Shares are admitted to the Official List of the UK Listing
Authority and traded on the London Stock Exchange, the fair market
value of the Shares shall be the middle market quotation as derived
from the Daily Official List of the London Stock Exchange.
If Shares are listed on a national securities exchange in the United
States on the date any Option is granted, the fair market value per
Share shall be deemed to be the average of the high and low sale price
on such national securities exchange in the United States on the
date upon which the Option is granted, but if the Shares are not
traded on such date, or such national securities exchange is not
open for business on such date, the fair market value per Share
shall be the average of the high and low sale price determined as
of the closest preceding date on which such exchange shall have
been open for business and the Shares were traded.
If the Shares are listed on more than one national securities
exchange in the United States on the date any such Option is
granted, the Committee shall determine which national securities
exchange shall be used for the purpose of determining the fair market
value per Share. If the Shares are not listed on a national
securities exchange but are reported on the National Association of
Securities Dealers, Inc. Automated Quotation System ("Nasdaq"), the
fair market value per Share shall be deemed to be the average of
the high bid and low sale prices on the date upon which the Option is
granted as reported by Nasdaq or, if the Shares are not traded on
such date or Nasdaq is not open for business on such date, the fair
market value per Share shall be the average of the high and low sale
price determined as of the closest preceding date on which Nasdaq
shall have reported the Shares.
For purposes of this Plan, the determination by the Committee of the
fair market value of a Share shall be conclusive.
6.3 Term of Options and Limitations on the Right of Exercise
The term of each Option will be for such period as the Committee shall
determine, provided that in no event may any Option granted hereunder
be exercisable more than seven years from the date of grant of such
Option (five years in the case of an Incentive Option granted to a
10 per cent Shareholder). Each Option shall become exercisable in
such instalments and at such times as may be designated by the
Committee and set forth in the agreement related to the grant of
Options. To the extent not exercised, instalments shall accumulate
and be exercisable, in whole or in part, at any time after becoming
exercisable, but not later than the date the Option expires.
The Committee shall have the right to limit, restrict or
prohibit through the use of performance conditions or otherwise, in
whole or in part, from time to time, conditionally or
unconditionally, rights to exercise any Option granted hereunder. To
the extent that an Option remains unexercisable as a result of any such
limitation, restriction or prohibition, such Option shall, unless
otherwise determined by the Committee, lapse in accordance with
the agreement related to the grant of such Option.
To the extent that an Option is not exercised within the period of
exercisability specified therein, it shall expire as to the then
unexercised part.
6.4 Exercise of Options
Options granted under the Plan shall be exercised by the Holder as
to all or part of the Shares covered thereby by the giving of
written notice of the exercise thereof to the Company at the
registered office of the Company or such other address as specified
from time to time by the Company, specifying the number of Shares to
be purchased, accompanied by payment therefore made to the Company
for the full purchase price of such Shares. The date of actual
receipt by the Company of such notice shall be deemed the date of
exercise of the Option with respect to the Shares being purchased,
subject to any delay or postponement which the Committee considers is
necessary or desirable in order to comply with, conform to or take
account of the requirements of any applicable laws or regulations
(including the Model Code or any code adopted by the Company based on
it).
Upon the exercise of an Option granted hereunder, the Company
shall cause the purchased Shares to be issued or transferred
(including a transfer out of treasury) only when it shall have
received the full purchase price for the Shares in cash; provided,
however, that in lieu of cash, the Holder of an Option may, to the
extent permitted by the Company and by applicable law, exercise an
Option in whole or in part, by delivering to the Company
unrestricted Shares (in proper form for transfer and accompanied by
all requisite stock transfer tax stamps or cash in lieu thereof)
owned by such Holder having a fair market value equal to the cash
exercise price applicable to that portion of the Option being
exercised. The fair market value of the Shares so delivered shall be
determined as of the Business Day immediately preceding the date on
which the Option is exercised, or as may be required in order to
comply with or to conform to the requirements of any
applicable laws or regulations. For purposes of this paragraph,
the provisions of Section 6.2 relating to the fair market value of
Shares shall apply in all respects.
Notwithstanding the foregoing, the Company, in its sole discretion,
may establish cashless exercise procedures whereby an Option Holder,
subject to the requirements of Rule 16b-3, Regulation T, federal
income tax laws, and other federal, state and local tax and securities
laws, can exercise an Option or a portion thereof without making a
direct payment of the Option price to the Company, including a
programme whereby Option Shares would be sold on behalf of and at
the request of an Holder by a designated broker and the exercise
price would be satisfied out of the sale proceeds and delivered to the
Company. If the Company so elects to establish a cashless exercise
programme, the Company shall determine, in its sole discretion, and
from time to time, such administrative procedures and policies as it
deems appropriate and such procedures and policies shall be binding
on any Option Holder wishing to utilise the cashless exercise
programme.
Notwithstanding the foregoing, from and after the date that Options
become subject to fair value accounting, the Committee may, at any
time and in its sole discretion, permit an Option to be settled
upon exercise in the same manner as a SAR that can be settled only in
Shares. The number of Shares to be issued or transferred
(including a transfer out of treasury) pursuant to the exercise of
an Option that is so settled shall be determined by dividing (i) the
aggregate fair market value of the Shares (on the Business Day
immediately preceding the date of exercise) underlying the portion
of the Option exercised minus the aggregate exercise price of the
portion of the Option exercised by (ii) the fair market value of a
Share on the Business Day immediately preceding the date of
exercise. Any fraction of a Share arising from this calculation
shall be ignored and the Holder will not be entitled to any settlement
in respect of such fraction, unless the Committee decides
otherwise.
6.5 Maximum Allotment of Incentive Options
If the aggregate fair market value of Shares with respect to which
Incentive Options are exercisable for the first time by an employee
during any calendar year (under all stock option plans of the
Company and any parent or any subsidiary of the Company) exceeds
$100,000, any Options which otherwise qualify as Incentive Options,
to the extent of the excess, will be treated as NQSOs.
7 Stock Appreciation Rights (SARs)
7.1 General
Any SARs granted under the Plan shall be in such form as the Committee
may from time to time approve and the provisions of the SAR grants
need not be the same with respect to each Holder.
A SAR is a right to receive an amount (the "SAR Amount") calculated
in accordance with Section 7.4. The Committee shall, in its sole
discretion, determine whether the SAR is to be satisfied in Shares,
cash or a combination thereof.
SARs granted under the Plan shall be subject to the following terms
and conditions, and shall contain such additional terms and
conditions not inconsistent with the terms of the Plan, as the
Committee deems appropriate. Each SAR grant shall be evidenced by an
agreement executed on behalf of the Company by an officer or officers
designated by the Committee and accepted by the Holder. Such
agreement shall describe the SARs, state that such SARs are subject
to all the terms and provisions of the Plan and shall contain such
other terms and provisions, consistent with the Plan, as the Committee
may approve.
7.2 Term of SARs and Limitations on the Right of Exercise
The grant date of a SAR will be the date on which the SAR is awarded
by the Committee or such other future date as the Committee shall
determine in its sole discretion. The term of each SAR will be for
such period as the Committee shall determine, provided that in no
event may any SAR granted hereunder be exercisable more than seven
years from the date of grant of such SAR. Each SAR shall become
exercisable in such instalments and at such times as may be designated
by the Committee and set forth in the agreement related to the grant
of SARs. To the extent not exercised, instalments shall accumulate
and be exercisable, in whole or in part, at any time after becoming
exercisable, but not later than the date the SAR expires.
The Committee shall have the right to limit, restrict or
prohibit through the use of performance conditions or otherwise,
in whole or in part, from time to time, conditionally or
unconditionally, rights to exercise any SAR granted hereunder. To the
extent that a SAR remains unexercisable as a result of any such
limitation, restriction or prohibition, such SAR shall, unless
otherwise determined by the Committee, lapse in accordance with
the agreement related to the grant of such SAR.
To the extent that a SAR is not exercised within the period of
exercisability specified therein, it shall expire as to the then
unexercised part.
7.3 Exercise of SARs
SARs granted under the Plan shall be exercised by the Holder as to all
or part of the Shares covered thereby by the giving of written notice
of the exercise thereof to the Company at the registered office of
the Company or such other address as specified from time to time by
the Company, specifying the number of Shares with respect to
which the SAR will be exercised. The date of actual receipt by the
Company of such notice shall be deemed the date of exercise of the SAR,
subject to any delay or postponement which the Committee considers
is necessary or desirable in order to comply with, conform to or
take account of the requirements of any applicable laws or
regulations (including the Model Code or any code adopted by the
Company based on it).
7.4 Calculation of the SAR Amount
The SAR Amount shall be determined by multiplying:
(i) the excess of the fair market value of a Share on the
Business Day immediately preceding the date of exercise
of the SAR over the per Share price ("Base Price") fixed by
the Committee on the date of grant of the SAR (which may
not be less than the fair market value of a Share on the date
of grant), by
(ii) the number of Shares with respect to which the SAR is
exercised,
provided however, that, on the date of grant, the Committee may
establish, in its sole discretion, a maximum amount per Share that
will be payable upon exercise of a SAR.
7.5 Settlement of SARs in Shares
The number of Shares to be issued or transferred to the Holder in
settlement of the exercise of a SAR which the Committee has
determined is to be satisfied in Shares shall be determined by
dividing (i) the SAR Amount by (ii) the fair market value of a Share
on the Business Day immediately preceding the date of exercise
determined in accordance with Section 6.2, ignoring any fractions
of a Share. Any residual SAR Amounts (representing any fractions of a
Share) shall be ignored and the Holder will not be entitled to any
settlement in respect of such SAR Amounts, unless the Committee
decides otherwise.
Upon exercise of a SAR to be settled in Shares, the Company shall
either issue the requisite number of Shares, or procure the transfer
of such number of Shares (including a transfer out of treasury), to
the Holder.
7.6 Settlement of SARs in cash
Upon the exercise of a SAR to be settled in cash, the Company
shall pay or procure to be paid to the Holder a cash sum equivalent to
the SAR Amount.
7.7 Meaning of fair market value
For purposes of this Section 7, the fair market value of a Share
shall be determined in accordance with Section 6.2.
8 Termination of Employment
Upon termination of employment of any Holder, any Award previously
granted to such Holder, unless otherwise specified by the
Committee, shall, to the extent not theretofore exercisable,
terminate and become null and void. If the Holder shall die or become
disabled (as described in Section 22(e)3 of the Code) while in the
employ of the Company or any subsidiary of the Company, and at a
time when such employee was entitled to exercise an Award as herein
provided, his estate or the legatees or distributees of his estate or
of the Award, as the case may be, may, within one year following the
date of death or disability, but not beyond that time and in no
event later than the expiration date of the Award, exercise such
Award, to the extent exercisable on the date of death or disability.
In no event shall any person be entitled to exercise any Award after
the expiration of the period of exercisability of such Award as
specified therein.
Other than as set forth above, if a Holder voluntarily terminates
his or her employment or is discharged for reasons other than Cause,
any Award which is capable of being exercised as at the time of
termination shall be exercisable for sixty days from the date
of termination. After such time any Award granted hereunder shall be
cancelled and the Holder shall have no further rights to exercise
any such Award and all of the Holder's rights thereunder shall
terminate as of 60 days after the date of termination of employment.
Except as otherwise determined by the Committee, if Holder's
employment is terminated for Cause, any Award granted hereunder
(whether or not exercisable) shall be cancelled and the Holder shall
have no further rights to exercise any such Award and all of the
Holder's rights thereunder shall terminate as of the effective date
of such termination of employment. The determination of the
Committee, in its sole and absolute discretion, on the matter of
whether a Holder's employment is terminated for Cause shall be
conclusive.
If an Award granted hereunder shall be exercised by the legal
representative of a deceased Holder or former Holder or by reason of
the death of any Holder or former Holder, written notice of such
exercise shall be accompanied by a certified copy of letters
testamentary or equivalent proof of the right of such legal
representative or other person to exercise such Award.
For the purposes of the Plan, an employment relationship shall be
deemed to exist between an individual and a corporation if, at the
time of the determination, the individual was an "employee" of such
corporation for purposes of Section 422(a) of the Code.
A termination of employment shall not be deemed to occur by reason of
(i) the transfer of an employee from employment by the Company to
employment by a subsidiary of the Company or (ii) the transfer of an
employee from employment by a subsidiary of the Company to employment
by the Company or by another subsidiary of the Company.
9 Non-transferability of Awards
An Award granted hereunder shall not be transferable, whether by
operation of law or otherwise, other than by will or the laws of
descent and distribution, and any Award granted hereunder shall be
exercisable, during the lifetime of the Holder, only by such Holder.
An Award and the Holder's rights thereunder shall terminate
immediately if the Holder: (a) attempts to or does sell, assign,
transfer, pledge, hypothecate or otherwise dispose of the Award or
any rights thereunder to any other person; or (b) becomes insolvent
or bankrupt or becomes involved in any manner so that the Award or any
rights thereunder becomes subject to being taken from him to satisfy
his debts or liabilities.
10 Purchase for Investment
Except as hereafter provided, the Company may require the recipient of
Shares pursuant to an Award granted hereunder, upon receipt
thereof, to execute and deliver to the Company a written statement,
in form satisfactory to the Company, in which such Holder represents
and warrants that such Holder is acquiring the Shares acquired
thereunder for such Holder's own account, for investment only and not
with a view to the resale or distribution thereof, and agrees that
any subsequent offer for sale or sale or distribution of any of
such Shares shall be made only pursuant to either (a) a Registration
Statement on an appropriate form under the Securities Act of 1933, as
amended (the "Act"), which Registration Statement has become
effective and is current with regard to the Shares being offered or
sold, or (b) a specific exemption from the registration
requirements of the Act, but in claiming such exemption the Holder
shall, prior to any offer for sale or sale of such Shares, obtain a
prior favourable written opinion, in form and substance satisfactory
to the Company, from counsel for or approved by the Company, as to
the applicability of such exemption thereto. The foregoing
restriction shall not apply to (i) issuances by the Company so long
as the Shares being issued are registered under the Act and a
prospectus in respect thereof is current or (ii) reofferings of
Shares by affiliates of the Company (as defined in Rule 405 or any
successor rule or regulation promulgated under the Act) if the Shares
being reoffered are registered under the Act and a prospectus in
respect thereof is current.
11 Issuance of Certificates; Legends; Payment of Expenses
The Company may endorse such legend or legends upon the
certificates for Shares issued pursuant to a grant thereunder and
may issue such "stop transfer" instructions to its transfer agent
in respect of such Shares as, in its discretion, it determines
to be necessary or appropriate to (i) prevent a violation of, or to
perfect an exemption from, the registration requirements of the Act,
(ii) implement the provisions of the Plan and any agreement between
the Company and the Holder with respect to such Shares, or (iii)
permit the Company to determine the occurrence of a disqualifying
disposition, as described in Section 421(b) of the Code, of Shares
transferred upon exercise of an Incentive Option granted under the
Plan.
The Company shall pay all issue or transfer taxes with respect to
the issuance or transfer of Shares upon exercise of an Award, as well
as all fees and expenses necessarily incurred by the Company in
connection with such issuance or transfer, except fees and expenses
which may be necessitated by the filing or amending of a
Registration Statement under the Act, which fees and expenses
shall be borne by the recipient of the Shares unless such
Registration Statement has been filed by the Company for its own
corporate purposes (and the Company so states) in which event the
recipient of the Shares shall bear only such fees and expenses as are
attributable solely to the inclusion of the Shares he or she receives
in the Registration Statement, provided that the Company shall have
no obligation to include any Shares in any Registration Statement.
All Shares issued as provided thereunder shall be fully paid and
non-assessable to the extent permitted by law.
12 Withholding Taxes
The Company or any subsidiary may require an employee
exercising an NQSO or SAR, or disposing of Shares acquired
pursuant to the exercise of an Incentive Option in a
disqualifying disposition (within the meaning of Section 421(b) of
the Code), to reimburse the Company or any subsidiary for any taxes
required by any government to be withheld or otherwise deducted and
paid by the Company in respect of the issuance or disposition of
Shares. In lieu thereof, the Company or any subsidiary shall have the
right to withhold the amount of such taxes from any other sums due
or to become due from the Company or any subsidiary to the employee
upon such terms and conditions as the Committee shall prescribe.
Notwithstanding the foregoing, the Committee may, by the adoption
of rules or otherwise, modify the provisions of this Section 12 or
impose such other restrictions or limitations as may be necessary to
ensure that the withholding transactions described above will be
exempt transactions under Section 16(b) of the Exchange Act.
If a Holder makes a disposition, within the meaning of Section
424(c) of the Code and regulations promulgated thereunder, of any
Share or Shares issued to such Holder pursuant to the exercise of an
Incentive Option within the two-year period commencing on the day
after the date of the grant or within the one-year period commencing
on the day after the date of transfer of such Share or Shares to the
Holder pursuant to such exercise, the Holder shall, within 10 days of
such disposition, notify the Company thereof, by delivery of
written notice to the Company at its registered office.
13 Listing of Shares and Related Matters
If at any time the Committee shall determine in its
discretion that the listing, registration or qualification of the
Shares covered by the Plan upon the Official List of the UK Listing
Authority or any national securities exchange or under any state or
federal law or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in
connection with, the sale or purchase of Shares under the Plan, no
Shares shall be issued unless and until such listing, registration,
qualification, consent or approval shall have been effected or
obtained, or otherwise provided for, free of any conditions not
acceptable to the Committee.
Shares issued on the exercise of an Award shall rank equally in all
respects with the Shares in issue on the date of allotment. They shall
not rank for any rights attaching to Shares by reference to a record
date preceding the date of allotment.
Where Shares are to be transferred, including a transfer out of
treasury, on the exercise of an Award, award Holders shall be entitled
to all rights attaching to the Shares by reference to a record date on
or after the transfer date. They shall not be entitled to rights
before such date.
If and so long as the Shares are listed on the Official List of the
UK Listing Authority, the Company shall apply for listing of any
Shares issued pursuant to the Plan as soon as practicable after the
allotment thereof.
14 Amendment of the Plan
Except as following, the shareholders of the Company in general
meeting must approve any change to the advantage of present or
future Holders of Awards which relate to the following: (i) the
persons to or for whom Shares may be provided under the Plan; (ii)
the limitations on the number of Shares which may be issued under
the Plan; (iii) the Option exercise price or SAR Base Price; (iv)
rights affecting the Awards; (v) the rights of Holders of the
Awards in the event of a capitalisation issue, rights issue,
subdivision or consolidation of shares or reduction or any other
variation of capital of the Company; or (vi) the terms of this Section
14.
The Committee may change the Plan and need not obtain the approval of
the shareholders of the Company in general meeting for any minor
changes: (i) to benefit the administration of the Plan; (ii) to
take account of a change in legislation; or (iii) to obtain or
maintain favourable tax, exchange control or regulatory treatment of
the Company, any subsidiary or any holder of an Award.
No amendment will take effect to the extent that the Plan would
cease to be an "employee share scheme" as defined in section 743 of
the Companies Act 1985.
The Committee shall be authorised to amend the Plan and the
terms of Awards granted hereunder to permit the Incentive Options
granted hereunder to qualify as incentive stock options within the
meaning of Section 422 of the Code. The rights and obligations under
any Award granted before amendment of the Plan or any unexercised
portion of such Award shall not be adversely affected by amendment of
the Plan or the Award without the consent of the Holder of the Award.
15 Termination or Suspension of the Plan
Unless terminated earlier by the Company directors or shareholders
the Plan shall terminate at the conclusion of the Company's 2007
annual general meeting, unless extended by the approval of
shareholders of the Company in general meeting. An Award may not be
granted while the Plan is suspended or after it is terminated.
Rights and obligations under any Award granted while the Plan is in
effect shall not be altered or impaired by suspension or termination
of the Plan, except upon the consent of the person to whom the
Award was granted. The power of the Committee to construe and
administer any Award granted prior to the termination or suspension
of the Plan under Section 3 nevertheless shall continue after such
termination or during such suspension.
16 Governing Law
The Plan, such Awards as may be granted thereunder and all related
matters shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware.
17 Partial Invalidity
The invalidity or illegality of any provision herein shall not
be deemed to affect the validity of any other provision. In no case
shall the Company or any subsidiary be required to take or omit any
action under this Plan which would cause it to breach any law, rule
or ordinance.
18 Effective Date
The Plan shall become effective upon the adoption by the Board of
Directors, subject only to the approval by the affirmative vote of
the holders of a majority of the securities of the Company present,
or represented, and entitled to vote at a meeting of stockholders
duly held. Grants made prior to such stockholder approval shall be
contingent on such approval.
19 Exclusion from Retirement and Fringe Benefit Computation
No portion of the grant of Awards under this Plan shall be taken into
account as "wages", "salary" or "compensation" for any purpose,
whether in determining eligibility, benefits or otherwise, under
(i) any pension, retirement, profit sharing or other qualified
or non-qualified plan of deferred compensation, (ii) any employee
welfare or fringe benefit plan including, but not limited to,
group insurance, hospitalisation, medical and disability, or
(iii) any form of extraordinary pay including but not limited to
bonuses, sick pay and vacation pay.
20 Definitions
20.1 Award
An "Award" means any Option or SAR granted pursuant to the Plan.
20.2 ADR
An "ADR" is an American Depositary Receipt issued in respect of one
or more ordinary shares in the capital of the Company.
20.3 Award Agreement
"Award Agreement" means the agreement between the Company and the
Holder referred to in Sections 6.1 and 7.1 above, evidencing the grant
of an Option or a SAR under the Plan.
20.4 Business Day
"Business Day" means a day on which the London Stock Exchange (or,
if relevant and if the Committee determines, any stock exchange
nominated by the Committee on which the Shares are traded) is open for
the transaction of business.
20.5 Cause
"Cause" means, except as otherwise defined in an Award Agreement, with
respect to any Holder (as determined by the Committee in its sole
discretion) (i) the continued and wilful failure of the Holder
substantially to perform the duties of his or her employment for the
Company or any of its subsidiaries (other than any such failure due
to the Holder's disability); (ii) the Holder's engaging in
wilful or serious misconduct that has caused or could reasonably
be expected to result in material injury to the Company or
any of its subsidiaries or affiliates, including, but not limited to
by way of damage to the Company's or a subsidiary's reputation or
public standing; (iii) the Holder's conviction of, or entering a
plea of guilty or nolo contendere to, a crime constituting a felony;
or (iv) the Holder's material violation or breach of the Company's or
any subsidiary's code of conduct or ethics or other Company policy or
rule or the material breach by the Holder of any of his or her
obligations under any written covenant or agreement with the Company
or any of its subsidiaries or affiliates; provided that, with
respect to any Holder who is a party to an employment agreement with
the Company or any subsidiary, "Cause" shall, in addition, have
the meaning specified in such Holder's employment agreement and any
conflict or ambiguity shall be resolved by the Committee in its
absolute discretion.
20.6 Code
The "Code" is the United States Internal Revenue Code of 1986, as
amended.
20.7 Holder
"Holder" means a person holding an Award or his legal representatives.
20.8 Model Code
"Model Code" means the UK Listing Authority Model Code for
transactions in securities by directors, certain employees and
persons connected with them.
20.9 Option
An "Option" is the right granted to a Holder pursuant to the Plan
to purchase a stated number of Shares at a stated price for a
specified period of time. An Option may be an Incentive Option or an
NQSO.
20.10 Rule 16b-3
"Rule 16b-3" is Rule 16b-3 issued by the United States Securities
and Exchange Commission pursuant to the Securities Exchange Act of
1934 and generally providing certain exemptions for the option plans.
20.11 Regulation T
"Regulation T" is Regulation T issued by the United States
Federal Reserve Board and generally providing rules and exemptions
pertaining to extensions of credit based on values of securities.
20.12 Regulatory Information Service
"Regulatory Information Service" means a service listed in
Schedule 12 to the UK Listing Authority Listing Rules.
20.13 SAR
A "SAR" is a right to receive the "SAR Amount" calculated in
accordance with Section 7.4, the exercise of which will be settled
in Shares, cash or a combination thereof at the discretion of the
Committee.
20.14 Shares
"Shares" means fully paid ordinary shares in the capital of the
Company or, as the context may require, ADRs.
21 Non-Guarantee of Employment
Nothing in the Plan or in any Award granted pursuant to the Plan
shall be construed as a contract of employment between the
Company or a Subsidiary and its employees, or as a contractual
right to continue in the employ of the Company or a Subsidiary,
or as a limitation of the right of the Company or a Subsidiary to
discharge its employees at any time.
22 Notices
All notices and other communications made or given pursuant to this
Plan shall be in writing and shall be sufficiently made or given if
delivered or mailed, addressed to the employee at the address
contained in the records of the Company or to the Company at
Spirent House, Crawley Business Quarter, Fleming Way, Crawley, West
Sussex RH10 9QL, United Kingdom.
23 Reports
If a Holder is not already a shareholder, the Company shall deliver
a copy of such annual financial reports as may be issued to holders of
Shares.