2015 Executive Rights Plan - Sirtex

Rights Plan Rules_October Update.docx

Sirtex Medical Limited (ACN 078 166 122)

Sirtex Executive Rights Plan Plan Rules (Consolidated as of 30 September 2017)


Table of Contents 1. Introduction ................................................................................................................................. 1

2. Definitions and Interpretation ...................................................................................................... 1

3. Rights that may be offered under the Plan ................................................................................. 6

4. Offers of Rights ........................................................................................................................... 7

5. Vesting and Exercise of Rights ................................................................................................... 8

6. Allotment of Shares on exercise or vesting of Rights ................................................................. 9

7. Rights attaching to Shares ........................................................................................................ 10

8. Restricted Rights ....................................................................................................................... 10

9. Retirement benefit limit ............................................................................................................. 12

10. Corporate Control Event ........................................................................................................... 12

11. Cessation of Employment ......................................................................................................... 14

12. Fraud, gross misconduct etc ..................................................................................................... 15

13. Hedging unvested Rights .......................................................................................................... 15

14. Adjustments .............................................................................................................................. 15

15. Power of attorney ...................................................................................................................... 16

16. Tax or social security contributions ........................................................................................... 16

17. Powers of the Board .................................................................................................................. 17

18. Commencement, suspension, termination and amendment of Plan ........................................ 17

19. Connection with other schemes ................................................................................................ 18

20. Compliance ............................................................................................................................... 18

21. General provisions .................................................................................................................... 18


Sirtex Executive Rights Plan

1. Introduction

1.1. Purpose

The Company has established this Plan to encourage Employees to share in the ownership of the Company and to promote the long-term success of the Company as a goal shared by all Employees.

1.2. Advice

(a) There are legal and tax consequences associated with participation in the Plan. Employees should ensure that they understand these consequences before accepting an invitation to participate in the Plan.

(b) Any advice given by or on behalf of the Company is general advice only, and Employees should consider obtaining their own financial product advice from an independent person who is appropriately qualified and/or licensed in their country to give such advice.

2. Definitions and Interpretation

2.1. Definitions

In these Rules unless the contrary intention appears, terms defined in the Corporations Act or Listing Rules have the same meaning in these Rules, and:

Applicable Law means any one or more or all, as the context requires of:

(a) the Corporations Act;

(b) the Listing Rules;

(c) the Constitution of the Company;

(d) the ITAA 1997;

(e) any practice note, policy statement, regulatory guide, class order, declaration, guideline, policy, procedure, ruling, judicial interpretation or other guidance note made to clarify, expand or amend (a), (b), (c) and (d) above; and

(f) any other legal requirement that applies to the Plan.

Application means a written acceptance of an Offer for, or an application for, Rights in a form approved by or acceptable to the Board (which may, without limitation, be an electronic form that is accessible and submitted via a website managed by the Company, its share registry or any other third party service provider).

ASIC means the Australian Securities and Investments Commission.

Associated Body Corporate means:

(a) a body corporate that is a related body corporate of the Company;

(b) a body corporate that has Voting Power in the Company of not less than 20% and that has been approved for participation in the Plan by the Company; or

(c) a body corporate in which the Company has Voting Power of not less than 20% and that has been approved for participation in the Plan by the Company,

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and Associated Bodies Corporate means all such bodies corporate.

ASX means ASX Limited or the securities exchange which it operates, as the context requires.

Board means:

(a) all or some of the Directors, acting as a board; or

(b) any committee, person or persons to whom power or authority to exercise or perform the relevant power, function or discretion, or to administer the Plan generally, has been delegated under the Rules (including any sub-delegate).

Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays or Sundays.

CCE Lapsed Performance Rights has the meaning given in Rule 10.3.

CCE Retained Performance Rights has the meaning given in Rule 10.2.

Company means Sirtex Medical Limited (ACN 078 166 122).

Constitution means the constitution of the Company (as amended from time to time).

Control has the meaning given to that term in section 50AA of the Corporations Act.

Corporate Control Event means any one or more of the following events or circumstances:

(a) an offer is made for Shares (or shares in a subsidiary) pursuant to a takeover bid under Chapter 6 of the Corporations Act;

(b) the Court orders a meeting of members (or a class of members) or creditors (or a class of creditors) under Part 5.1 of the Corporations Act for the purpose of considering a proposed compromise or arrangement relating to the Company (or a subsidiary) or a compromise or arrangement proposed for the purposes of, or in connection with, a scheme for the reconstruction of the Company (or a subsidiary) or its amalgamation with any other body corporate or bodies corporate;

(c) approval is given by a resolution duly passed at a general meeting, or by circular resolution, of members of the Company (or a subsidiary) for an acquisition that would result in a person having Voting Power in the Company (or a subsidiary) of more than 50%;

(d) a person acquires Voting Power of more than 50% in the Company:

(i) as a result of a takeover bid for all of the issued shares in the Company; or

(ii) through a scheme of arrangement relating to the acquisition of all of the issued shares of the Company;

(e) the Board determines that a change of control of the Company has occurred within the meaning of section 50AA of the Corporations Act;

(f) any other event or transaction (including any other merger, consolidation or amalgamation involving the Company (or a subsidiary)) occurs or is proposed where either or both of the following applies:

(i) in the case of a merger, consolidation or arrangement, the transaction results in the holders of Shares (or shares in a subsidiary) immediately prior to the merger, consolidation or amalgamation having relevant interests, in aggregate, in 50% or less

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of the voting shares in the body corporate resulting from the merger consolidation or amalgamation; or

(ii) the Board determines, in its discretion, that the relevant transaction constitutes a Corporate Control Event for the purposes of the Rules;

(g) the Company (or a Subsidiary) enters into an agreement or agreements to sell, in aggregate, a majority in value of the business or assets of all Group Companies (whether or not in the form of shares in a Group Company) to a person or persons that are not Group Companies; or

(h) an administrator, liquidator, provisional liquidator, receiver or receiver and manager is appointed in respect of the Company or substantially all of the assets of the Company.

Corporations Act means the Corporations Act 2001 (Cth) (as amended from time to time).

Date of Grant means the date on which the Company issues a Right to an Eligible Employee.

Deal or Dealing means sale, transfer, assignment, mortgage, pledge, grant of a lien or other alienation or encumbrance over or attempted sale, transfer, assignment, mortgage, pledge, grant of a lien or other alienation or encumbrance over, or creation in favour of any third party of any interest whatsoever.

Deferred Right means a right to the value of a Share issued under Rule 3.2, which at the sole discretion of the Board, may be paid by the Company in Shares, cash or a combination of both Shares and cash.

Director means a director of the Company (including a non-executive director).

Eligible Employee means:

(a) an Employee to whom, or who falls within a class of Employees to whom, the Board determines that an Offer is to be made under the Plan; or

(b) an Employee who satisfies the eligibility criteria (if any) determined by the Board for a proposed Offer.

Employee means:

(a) a full-time or part-time employee of a Group Company (including any employee on parental leave, long service leave or other special leave as approved by the relevant Group Company); or

(b) a director of a Group Company who holds a salaried employment or other salaried office in a Group Company (excluding, for the avoidance of doubt, a non-executive director).

Employment Cessation Date means the date on which an Employee ceases to be employed by a Group Company.

Executive Share Plan Trust means the trust established pursuant to a trust deed executed between the Company and Watman Nominees Pty Limited dated 30 September 2010 (as amended).

exercise means exercise of a Right in accordance with its terms, and includes automatic exercise in accordance with these Rules.

Exercise Price means the price payable (if any) per Share to exercise a Right.

Expiry Date means the date on which a Right lapses, being:

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(a) the date specified in an Offer as the Expiry Date, or fixed by a method of calculation set out in an Offer; or

(b) if no date is specified or fixed in an Offer under paragraph (a) above, the date that is 5 years after the Date of Grant.

Financial Year means the annual accounting period of the Group (being currently the 12 month period ending on 30 June in each year).

Group means the Company and its Associated Bodies Corporate.

Group Company means any body corporate within the Group.

issue of a Share includes the transfer of an existing Share in accordance with Rule 6.3.

Issue Price means the price (if any) to be paid for the issue of a Share as stated in the Offer.

ITAA 1997 means the Income Tax Assessment Act 1997 (Cth) (as amended from time to time).

KMPs means “key management personnel” as defined in the Corporations Act.

Legal Personal Representative means the executor of the will or an administrator of the estate of a deceased person, the trustee of the estate of a person under a legal disability or a person who holds an enduring power of attorney granted by another person.

Listed means the Company being and remaining admitted to the official list of the ASX (or the applicable securities exchange).

Listing Rules means the listing rules of ASX Limited and any other rules of the ASX (or the applicable securities exchange) that are applicable to the Company or the Shares while the Company is Listed on that exchange, each as amended or replaced from time to time, and except to the extent of any express written waiver by the ASX.

Offer means an offer or issue of Rights made to an Employee under Rule 4. Where Rights are issued without the need for acceptance, an Offer includes the document setting out the terms of the Right.

Offer Share Price means, unless the Board determines otherwise, the volume weighted average price at which the Shares were traded on the ASX over the 10 trading days prior to and including the 30 June preceding the date of an Offer.

Participant means an Employee to whom Rights are issued.

Performance Right means a right to the value of a Share issued under Rule 3.2, which at the sole discretion of the Board, may be paid by the Company in Shares, cash or a combination of both Shares and cash.

Plan means the Sirtex Executive Performance Rights Plan.

Plan Shares means the Shares allotted and issued, or transferred, by the Company to a Participant in respect of a Right.

Plan Trustee means the trustee for the time being of the Executive Share Plan Trust.

Restriction Period means the period during which Rights, or Shares issued on exercise of Rights, must not be sold or disposed of, being the period specified in these Rules and the Offer.

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Right means:

(a) a Performance Right;

(a) a Service Right; and

(b) a Deferred Right,

as applicable.

Rules means these rules (as amended from time to time).

Security Interest means an interest in an asset which provides security for, or protects against default by, a person for the payment or satisfaction of a debt, obligation or liability including a mortgage, charge, bill of sale, pledge, deposit, lien, encumbrance, hypothecation, first right of refusal, voting right or arrangement for the retention of title or any agreement, option or other arrangement to grant such an interest or right.

Service Right means a right to the value of a Share issued under Rule 3.3, which at the sole discretion of the Board, may be paid by the Company in Shares, cash or a combination of both Shares and cash.

Share means a fully paid ordinary share of the Company.

Share Price means, at any particular date, the closing price of a Share on the ASX.

Special Circumstances means death, total and permanent disablement as determined by the Board, retirement with the prior consent of the Board, redundancy, retrenchment, other company initiated terminations for other than cause and other circumstances approved by the Board from time to time.

Vested Value means the product of the number of vested Rights and the Share Price on the date of exercise of the Rights in respect of a particular Participant.

Vesting Conditions means any conditions described in the Offer that must be satisfied before a Right can be exercised or before a Right (or Share issued under a Right) is no longer subject to forfeiture.

Vesting Date means the date on which a Right is exercisable or is no longer subject to forfeiture following satisfaction of any Vesting Conditions.

2.2. Interpretation

In these Rules, unless expressed to the contrary:

(a) terms defined in the Corporations Act have the same meaning in these Rules;

(b) words importing:

(i) the singular include the plural and vice versa; and

(ii) any gender includes the other genders;

(c) if a word or phrase is defined cognate words and phrases have corresponding definitions; and

(d) a reference to:

(i) a person includes a firm, unincorporated association, corporation and a government or statutory body or authority;

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(ii) a person includes its Legal Personal Representatives, successors and assigns;

(iii) a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(iv) a right includes a benefit, remedy, discretion, authority or power;

(v) "$" or "dollars" is a reference to the lawful currency of Australia;

(vi) this or any other document includes the document as varied or replaced and notwithstanding any change in the identity of the parties; and

(vii) any thing (including, without limitation, any amount) is a reference to the whole or any part of it and a reference to a group of things or persons is a reference to any one or more of them.

2.3. Headings

Headings are for convenience only and do not affect the interpretation of these Rules.

3. Rights that may be offered under the Plan

3.1. Rights

The Company may, at the discretion of the Board, offer and issue Rights to Employees of the kind set out in this Rule 3.

3.2. Performance Rights

The Company may offer or issue Performance Rights, which are rights to acquire a Share for nil Exercise Price upon the satisfaction of Vesting Conditions specified in the Offer. These terms apply unless the Offer specifies otherwise:

(a) Performance Rights are subject to the restrictions set out in Rule 8.1(a) until they are exercised or expire.

(b) An Offer may specify a Restriction Period for Shares acquired on the exercise of Performance Rights and those Shares will be subject to the restrictions set out in Rule 8.1(a).

(c) Performance Rights are subject to adjustment under Rule 14.

3.3. Service Rights

The Company may offer or issue Service Rights, which are rights to acquire a Share for nil Exercise Price upon the satisfaction of Vesting Conditions specified in the Offer, which Vesting Conditions relate only to the continued employment of the Employee. These terms apply unless the Offer specifies otherwise:

(a) Service Rights are subject to the restrictions set out in Rule 8.1(a) until they are exercised or expire.

(b) An Offer may specify a Restriction Period for Shares acquired on the exercise of Service Rights and those Shares will be subject to the restrictions set out in Rule 8.1(a).

(c) Service Rights are subject to adjustment under Rule 14.

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3.4. Deferred Rights

The Company may offer or issue Deferred Rights, which are rights to acquire a Share that are not subject to Vesting Conditions and vest immediately after the Deferred Rights are issued. These terms apply unless the Offer specifies otherwise:

(a) Deferred Rights may only be exercised after the date that is 3 months after the Date of Grant.

(b) An Offer will specify a Restriction Period for Shares acquired on the exercise of Deferred Rights and those Shares will be subject to the restrictions set out in Rule 8.1(a).

4. Offers of Rights

4.1. Offers

The Company may make an Offer to any Employee.

4.2. Form of Offer

Each Offer must be in writing (which includes email), include an Application if acceptance is required, and specify the following to the extent applicable:

(a) the name and address of the Employee to whom the Offer is made;

(b) the date of the Offer;

(c) the type of Rights being offered;

(d) the number of Rights being offered;

(e) any Vesting Conditions for the Rights;

(f) the Issue Price and/or Exercise Price for the Rights, or the manner in which the Issue Price and/or Exercise Price is to be determined;

(g) the Expiry Date (if any);

(h) any Restriction Period (including, without limitation, by reference to Rules 8.3 and 8.4);

(i) the target minimum Share holding, and the target time-frame for attaining that holding, under Rule 8.3;

(j) any other terms or conditions that the Board decides to include; and

(k) any other matters required to be specified in the Offer by either the Corporations Act or the Listing Rules.

4.3. Applicable law

If required by Applicable Laws or the conditions to applicable ASIC relief, the Offer must include an undertaking by the Company to provide to a Participant, if a request is made before the Right is Exercised and within a reasonable period of being so requested, the current market price of the Shares.

4.4. Compliance with laws

No Offer will be made to the extent that any such Offer would contravene the Constitution, the Listing Rules, the Corporations Act or any other Applicable Law.

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4.5. Acceptance

If acceptance of an Offer is required, it may be accepted:

(a) by an Employee completing and returning the Application, as required by the Offer, by not later than the date specified in the Offer; and

(b) if required, by the Employee making or directing payment of the total amount payable for the Rights (if any) accepted under the Offer, in the manner specified in the Offer.

4.6. Board may withdraw

The Board may in its absolute discretion withdraw an Offer which requires acceptance at any time prior to acceptance by the Employee under Rule 4.5. For the avoidance of doubt, the Board may withdraw an Offer under this Rule 4.6 if the Board becomes aware that the Employee’s employment with a Group Company will cease in the near future.

4.7. Lapse of Offer

An Offer which requires acceptance lapses if it is not accepted by the Employee to whom the Offer is made as required under Rule 4.5.

4.8. Acceptance by Employee

For the avoidance of any doubt, an Offer may only be accepted by (and the relevant Right and any subsequent Share issues may only be granted or issued to) the Employee to whom the Offer is made and may not be partially accepted.

4.9. Future Rights

For the avoidance of doubt, the receipt of an Offer under the Plan does not guarantee or confer any entitlement on an Employee to receive any other Offer under the Plan.

5. Vesting and Exercise of Rights

5.1. Vesting Conditions

(a) The Rights held by a Participant will vest in and become exercisable by that Participant upon the satisfaction of any Vesting Conditions specified in the Offer and in accordance with these Rules.

(b) Vesting Conditions may be waived at the absolute discretion of the Board (unless such waiver is excluded by the terms of the Right).

5.2. Variation of vesting amount or percentage

Notwithstanding any other provision contained in these Rules, the Board has absolute and unfettered discretion, at any time, to increase or decrease (including to nil) the amount or percentage of vesting applicable to a tranche of Rights which have been granted under these Rules if, in good faith, the Board forms the view that it is appropriate to do so. In exercising this discretion, the Board may take into account, among the factors which it considers relevant, the following factors:

(a) the Company’s actual performance;

(b) the Company’s relative performance compared to other companies;

(c) the overall remuneration entitlements of Participants;

(d) the total return to shareholders over a measurement period relevant to the Rights; and/or

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(e) the earnings per share growth or contraction over a measurement period relevant to the Rights.

The Board may take advice from an appropriate adviser when exercising this discretion. As soon as reasonably practicable after deciding to increase or decrease the amount or percentage of vesting applicable to any tranche of Rights under this Rule, the Board, by written notice, will inform each Participant affected.

5.3. Automatic Exercise

The vesting of a Right on the satisfaction of any Vesting Conditions will not automatically trigger the exercise of the Right unless specified in the Offer.

5.4. Exercise of Rights

(a) A Participant is, subject to this Rule 5, entitled to exercise a Right on or after the Vesting Date. Any exercise must be for all, and not some, of the vested Rights.

(b) Rights may be exercised by the Participant delivering to the Company a notice in a form approved by the Company together with the Exercise Price (if any) for the vested Rights.

(c) On receiving a valid notice of exercise under Rule 5.4(b), the Board will determine in its absolute discretion whether to deliver the Vested Value to the Participant in Shares, a cash payment or a combination of Shares and a cash payment. The Board will advise the Participant in writing of its determination under this Rule.

(d) To the extent that the Vested Value is to be satisfied in Shares, the Board will pay to the Plan Trustee contributions equal to the amount required to fund the Plan Trustee’s subscription or acquisition of Shares on behalf of the Participants in respect of that part of the Vested Value to be satisfied in Shares. Any Exercise Price payable by a Participant to exercise the vested Rights will be paid to the Plan Trustee.

(e) To the extent that the Vested Value is to be paid in cash, it will be paid less any applicable tax instalment deductions.

5.5. No exercise on bankruptcy

It is a condition precedent to the exercise of a Right:

(a) if the Participant is a natural person, that the Participant is not bankrupt and has not committed an act of bankruptcy; or

(b) if the Participant is not a natural person, that the Participant is not insolvent or subject to a resolution or order for winding up,

unless the Board determines to permit a Participant to exercise the Right in these circumstances.

6. Allotment of Shares on exercise or vesting of Rights

6.1. Rights attaching to Shares

The Shares issued under this Plan will upon allotment:

(a) be credited as fully paid;

(b) rank equally for dividends and other entitlements where the record date is on or after the date of allotment, but will carry no right to receive any dividend or entitlement where the record date is before the date of allotment; and

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(c) be subject to any restrictions imposed under these Rules,

and otherwise rank equally with the existing issued Shares at the time of allotment.

6.2. Quotation

If the Company is Listed, then as soon as practicable after the date of the allotment of Shares, the Company will, unless the Board otherwise resolves, apply for official quotation of such Shares on the ASX.

6.3. New or existing Shares

(a) The Company may, in its discretion, either issue new Shares or cause existing Shares to be acquired for transfer to the Participant, or a combination of both alternatives, to satisfy the Company's obligations under these Rules.

(b) If the Company determines to cause the transfer of Shares to a Participant, the Shares may be acquired in such manner as the Company considers appropriate, including from a trustee appointed under Rule 6.4.

6.4. Trustee

The Company may appoint a trustee on terms and conditions which it considers appropriate to acquire and hold Shares, options, or other securities of the Company either on behalf of Participants or for the purposes of this Plan.

7. Rights attaching to Shares

7.1. Shares to rank equally

Any Plan Shares allotted and issued by the Company, or transferred by the Company or the Plan Trustee, to a Participant will rank equally with all existing Shares on and from the date of issue or transfer.

7.2. Dividends

A Participant will have a vested and indefeasible entitlement to any dividends declared and distributed by the Company on Plan Shares which, at the books closing date for determining entitlement to those dividends, are standing to the account of the Participant.

7.3. Dividend reinvestment

The Participant may participate in any dividend reinvestment plan operated by the Company in respect of Plan Shares held by the Participant and such participation must be in respect of all Plan Shares held by the Participant. Shares issued under any dividend reinvestment plan operated by the Company will not be subject to any restrictions on dealing.

7.4. Voting rights

A Participant may exercise any voting rights attaching to Plan Shares registered in the Participant's name.

8. Restricted Rights

8.1. Restrictions

(a) A Participant must not sell, transfer, mortgage, pledge, charge, grant security over or otherwise dispose of:

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(i) any Rights; or

(ii) any Shares issued on the exercise of a Right in respect of which a restriction on sale or disposal is specified in an Offer or otherwise applies pursuant to Rule 8.3 or 8.4,

or agree to do any of those things, during the Restriction Period, and any Rights that are unvested will lapse immediately upon any such purported sale, transfer, mortgage, pledge, charge, grant of security or other disposal unless the transfer is effected by operation of law on death or legal incapacity to the Participant’s Legal Personal Representative.

(b) The Company may implement any procedures it considers appropriate to ensure that Rights and Shares (where applicable) are not sold or disposed of during the Restriction Period, including applying a holding lock in respect of Shares.

8.2. Pro rata bonus issues

If the Company makes a pro rata bonus issue to holders of Shares issued on the exercise of a Right that are subject to the restrictions set out in Rule 8.1(a), the Shares issued to Participants under the pro rata bonus issue will be subject to the balance of the Restriction Period that applied to those Shares.

8.3. Minimum holding of Shares required

(a) Effective with respect to Shares arising from the exercise of Rights issued on or after 1 July 2017, Participants will be required to establish and maintain a minimum level of Share ownership in the Company.

(b) The Board may from time to time (in its absolute discretion) determine the target minimum level of Share ownership, and the time-frame over which the target minimum level of Share ownership is to be attained. A target, and/or a time-frame, so determined may apply to individual Participants (and may be the same or different for different individuals), or to groups of Participants (eg. KMPs) (and may be the same or different for different groups of Participants), or to all Participants. By way of guidance only, and without limitation on the exercise of the Board’s discretion under this Rule from time to time, it is envisaged that the target minimum level of Share ownership for these purposes (including all Shares owned, however acquired, by that Participant and his/her “associated entities” and “close associates” as defined in the Corporations Act) should, over time, reach the equivalent of 1 year’s base salary (as adjusted from time to time) for each Participant.

(c) All calculations for these purposes will be carried out as of 1 July each year, with the Share price used for those calculations being the weighted average price of Shares sold on the ASX in the immediately preceding 10 Business Days.

(d) Participants will be informed of the minimum level of Share ownership, and the time-frame over which the target minimum level of Share ownership is to be attained, that applies to them, as determined by the Board, from time to time. Any determination made by the Board for these purposes at the time of issue of any Rights will be communicated to Participants in the applicable Offer. However, any such determination may later be varied by the Board from time to time (in its absolute discretion) having regard to prevailing circumstances (including, without limitation, immediately before a Vesting Date). As soon as reasonably practicable after deciding to vary the minimum level of Share ownership applicable to a Participant under this Rule, the Board, by written notice, will inform each Participant affected.

8.4. Additional requirement for approval to disposal or encumbering of Shares

Effective with respect to Shares arising from the exercise of Rights issued on or after 1 July 2017, and notwithstanding any other provision contained in these Rules (except as necessary or desirable to give effect to Rule 16), a Participant who receives Shares as a result of the exercise of any Rights must not sell, transfer, mortgage, pledge, charge, grant security over or otherwise dispose of those Shares, or agree to do any of those things, without the prior written approval of the Chief Executive

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Officer or the Chair of the Company, given within 3 business days (or such other time as set out in the approval notice) of the relevant disposal or encumbrance. The Chief Executive Officer or the Chair of the Company (as the case may be) shall have regard to the requirements of Rule 8.3, and to such other matters as are considered relevant, in deciding whether or not to grant that approval (in whole or in part). An approval given under this Rule 8.4 is deemed to be an approval also for the purposes of Rule 12 of the Securities Trading Policy.

8.5. Waiver and reinstatement of Rules 8.3 and/or 8.4

The Board may waive the application of Rules 8.3 and/or 8.4 to a particular Participant from time to time, if the Board considers (in its absolute discretion) that Special Circumstances apply to that Participant at that time, and the Board may thereafter reinstate the application of Rules 8.3 and/or 8.4 to a particular Participant from time to time if the Board then considers (in its absolute discretion) that Special Circumstances no longer apply to that Participant at that time. Any such waiver or reinstatement will be communicated by the Board to the relevant Participant in writing.

9. Retirement benefit limit

9.1. Termination payments

This Rule 9 applies to all termination payments to which Part 2D.2 Division 2 of the Corporations Act applies.

9.2. Benefit limit

The Company is not required to provide, or procure the provision of, any benefit under Rule 5.4 which is not permitted by Part 2D.2 Division 2 of the Corporations Act in the absence of shareholder approval.

9.3. Overpayments

Any benefits required to be provided to a Participant in accordance with Rule 5.4 must be reduced to ensure compliance with Rule 9.2. In the event of overpayment to a Participant, the Participant must, on receiving written notice from the Board, immediately repay any monies or benefits specified in such notice to ensure compliance with Rule 9.2.

9.4. Shareholder approval

(a) The Company may, if the Board so decides, seek shareholder approval at a general meeting where Rule 9.2 applies.

(b) If shareholder approval is sought by the Company under Rule 9.4(a) and the resolution is not passed by shareholders, then Rule 9.2 applies to the payment of the benefit.

10. Corporate Control Event

10.1. Corporate Control Event

(a) On the occurrence of a Corporate Control Event, a Participant may, within 1 month of the date of the Corporate Control Event, exercise the Participant’s Performance Rights and Service Rights that have vested prior to the date of exercise.

(b) Unless otherwise determined by the Board, on the occurrence of a Corporate Control Event, the Vesting Conditions for unvested Performance Rights and Service Rights will cease to apply and the Performance Rights and Service Rights will be dealt with in accordance with the terms of this Rule 10.

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10.2. Retained Performance Rights granted in Financial Year of Corporate Control Event

The number of Performance Rights that are retained by a Participant on the occurrence of a Corporate Control Event will be calculated in accordance with the following formula:

Where:

CCE Retained Performance Rights means the number of Performance Rights that are retained by a Participant on the occurrence of a Corporate Control Event, rounded to the nearest whole number;

CCE Performance Rights means the number of Performance Rights granted to a Participant in the Financial Year that the Corporate Control Event occurs; and

N means the number of days from 1 July to the date of the Corporate Control Event in the Financial Year that the Corporate Control Event occurs.

10.3. Lapsed Performance Rights

The number of Performance Rights that will lapse on the occurrence of a Corporate Control Event will be calculated in accordance with the following formula:

CCE Lapsed Performance Rights = CCE Performance Rights - CCE Retained Performance Rights

Where:

CCE Lapsed Performance Rights means the number of Performance Rights that will lapse on the occurrence of a Corporate Control Event;

CCE Performance Rights means the number of Performance Rights granted to a Participant in the Financial Year that the Corporate Control Event occurs; and

CCE Retained Performance Rights means the CCE Retained Performance Rights calculated in accordance with Rule 10.2 above.

10.4. Performance Rights

(a) Subject to Rule 10.4(b), if the Share Price at the date of a Corporate Control Event is greater than the Offer Share Price then Performance Rights that have not vested as at the date of the Corporate Control Event (excluding the CCE Lapsed Performance Rights) will vest in accordance with the following formula:

VPR = UPR x CCESP - OSP

OSP

Where:

VPR means the number of Performance Rights that will vest on the occurrence of a Corporate Control Event and may be exercised by a Participant, rounded to the nearest whole number;

CCE Retained Performance Rights = CCE Performance Rights x N

365

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UPR means the number of unvested Performance Rights (excluding the CCE Lapsed Performance Rights) as at the date of the Corporate Control Event;

CCESP means the Share Price at the date of the Corporate Control Event; and

OSP means the Offer Share Price.

(b) For the avoidance of doubt, the Board may, in its absolute discretion, determine that a greater number of Performance Rights will vest than as determined by the formula set out in Rule 10.4(a) above.

(c) The Performance Rights that vest in accordance with Rules 10.4(a) and 10.4(b) above may be exercised by a Participant within 1 month of the date of the Corporate Control Event or such other period as determined by the Board. Any Performance Rights which are not exercised shall lapse immediately on expiry of that 1 month period.

(d) Unless otherwise determined by the Board, all CCE Lapsed Performance Rights will lapse upon the occurrence of a Corporate Control Event.

10.5. Service Rights

Upon the occurrence of a Corporate Control Event, all unvested Service Rights will vest and be exercisable by a Participant within 1 month of the date of the Corporate Control Event or such other period as determined by the Board. Any Service Rights which are not exercised shall lapse immediately on expiry of that 1 month period.

11. Cessation of Employment

11.1. Cessation of Employment

If a Participant:

(a) ceases to be an Employee and is not immediately re-employed by another Group Company; and

(b) the cessation is due to circumstances other than Special Circumstances,

then, unless otherwise determined by the Board, all unvested Rights held by that Participant will be forfeited and lapse as at the Employment Cessation Date.

11.2. Special Circumstances

(a) If a Participant:

(i) ceases to be an Employee and is not immediately re-employed by another Group Company; and

(ii) the cessation is due to Special Circumstances,

then, unless otherwise determined by the Board, the number of unvested Performance Rights and Service Rights that will be retained by the Employee after the Employment Cessation Date will be calculated in accordance with the following formula:

SC Retained Rights =

SC Rights x N

+ Other SC Rights 365

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Where:

SC Retained Rights means the number of Performance Rights or Service Rights (as relevant) that are retained by a Participant following the Employment Cessation Date, rounded to the nearest whole number;

SC Rights means the number of Performance Rights or Service Rights (as relevant) granted to a Participant in the Financial Year that the Participant ceases to be an Employee;

N means the number of days from 1 July to the Employment Cessation Date in the Financial Year that the cessation of employment occurs; and

Other SC Rights means the total number of unvested Performance Rights or Service Rights (as relevant) granted to a Participant less the SC Rights.

(b) Unless otherwise determined by the Board, any unvested Performance Rights or Service Rights that are not retained in accordance with the formula set out in Rule 11.2(a) above will be forfeited and lapse on the Employment Cessation Date.

11.3. Exercise of vested Rights after the Employment Cessation Date

If vested Performance Rights and Service Rights may be, and are, exercised by a Participant after the Employment Cessation Date and the Share Price on the date of exercise is less than the Share Price at the Employment Cessation Date, then unless otherwise determined by the Board, the Vested Value will be paid to the Participant in cash.

11.4. Board discretion

Subject to Rule 9, the Board retains the discretion to trigger or accelerate payment or vesting of Performance Rights and/or Service Rights following cessation of the employment of a Participant.

12. Fraud, gross misconduct etc

12.1. Fraud, gross misconduct etc

In the event that the Board forms the reasonable opinion that a Participant has committed an act of fraud, defalcation or gross misconduct in relation to any Group Company, then all of the Participant’s unvested Rights will be forfeited. The relevant Group Company may also recover damages from vested Rights and Shares issued on the exercise of a Right that are subject to the restrictions set out in Rule 8.1(a) held by or for the benefit of the Participant.

13. Hedging unvested Rights

13.1. Hedging Rights and Shares

Participants must not enter into transactions or arrangements, including by way of derivatives or similar financial products, which limit the economic risk of holding unvested Rights, vested Rights or Shares issued on the exercise of a Right that are subject to the restrictions set out in Rule 8.1(a).

14. Adjustments

14.1. Adjustments

This Rule 14 applies to Performance Rights, Service Rights and other Rights where the Participant may be entitled to acquire Shares in the future on exercise of the Right.

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14.2. New issue of Shares

A Participant is not entitled to participate in a new issue of Shares or other securities made by the Company to holders of its Shares without exercising the Rights before the record date for the relevant issue.

14.3. Bonus issues

If, prior to the exercise of a Right, the Company makes a pro-rata bonus issue to the holders of its Shares, and the Right is not exercised prior to the record date in respect of that bonus issue, the Right will, when exercised, entitle the holder to one Share plus the number of bonus shares which would have been issued to the holder if the Right had been exercised prior to the record date.

14.4. Other reorganisations of capital

If, prior to the exercise of a Right, the Company undergoes a reorganisation of capital (other than by way of a bonus issue or issue for cash) the terms of the Rights of the Participant will be changed to the extent necessary to comply with the Listing Rules as they apply at the relevant time.

14.5. General

(a) Unless otherwise permitted by the Listing Rules, the number of Shares which the Participant is entitled to receive on exercise of a Right will only be adjusted in accordance with this Rule 14.

(b) The Company must give notice to Participants of any adjustment to the number of Shares which the Participant is entitled to receive on exercise of a Right in accordance with the Listing Rules.

15. Power of attorney

15.1. Participant appoints

(a) In consideration of the issue of the Rights, each Participant irrevocably appoints each director and the secretary for the time being of the Company severally as his or her attorney, to do all acts and things and to complete and execute any documents, including share transfers, in his or her name and on his or her behalf that may be convenient or necessary for the purpose of giving effect to the provisions of these Rules or the terms of a Right.

(b) The Participant (or after his or her death, his or her Legal Personal Representative) will be deemed to ratify and confirm any act or thing done under this power and must indemnify the attorney in respect of doing so.

16. Tax or social security contributions

16.1. Tax and social security contributions

Where the Company, or a subsidiary (within the meaning of the Corporations Act) of the Company, must account for any tax or social security contributions (in any jurisdiction) for which a Participant is liable because of the issue or transfer of Shares, payment of cash to the Participant or the vesting or exercise of a Right (the Amount), either the Company or subsidiary of the Company may withhold the Amount in its discretion from the Vested Value or the Plan Trustee may withhold the Amount in its discretion from the funds paid to the Plan Trustee under Rule 5.4(d).

16.2. Overseas transfers

If a Participant is transferred to work in a country other than Australia and, as a result of such transfer, the Participant would:

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(a) suffer a tax disadvantage in relation to their Rights (this being demonstrated by the Participant to the satisfaction of the Board); or

(b) become subject to restrictions on their ability to deal with the Rights, or to hold or deal in the Shares or the proceeds of the Shares acquired on exercise,

then, if the Participant continues to be employed by a Group Company, the Board may decide, in its sole discretion, that the Rights will vest on a date it chooses before or after the transfer takes effect. The Rights will vest to the extent permitted by the Board.

16.3. Non-Australian residents

When a Right is granted under the Plan to a Participant who is not a resident of Australia, the provisions of this Plan apply subject to such alterations or additions as the Board determines having regard to any applicable or relevant laws, matters of convenience and desirability and similar factors which may have application to the Participant or the Group Company in relation to the Rights. Such alterations or additions will be specified in the Offer.

17. Powers of the Board

17.1. Administration by Board

The Plan will be administered by the Board, or a committee of the Board, which will have an absolute discretion to:

(a) determine appropriate procedures for administration of the Plan consistent with these Rules;

(b) exercise, or refrain from exercising, any of its powers or discretions and in making determinations under these Rules, and in acting under these Rules or in connection with the Plan;

(c) resolve conclusively all questions of fact or interpretation arising in connection with the Plan or these Rules;

(d) delegate to any one or more persons, for such period and on such conditions as they may determine, the exercise of any of their powers or discretions under the Plan or these Rules;

(e) formulate special terms and conditions (subject to the Listing Rules), in addition to those set out in these Rules to apply to Participants employed and/or resident in and/or who are citizens of countries other than Australia. Each of these special terms and conditions will be restricted in their application to those Participants employed and/or resident in and/or who are citizens of other jurisdictions; and

(f) amend these Rules, provided that such amendments do not materially prejudice the rights of existing Participants in respect of existing Rights or Shares.

17.2. Subject to Listing Rules

While the Company is Listed, the Board may only exercise its powers in accordance with the Listing Rules.

18. Commencement, suspension, termination and amendment of Plan

18.1. Commencement

Subject to the passing of any necessary resolution approving the establishment of the Plan and the issue of the Rights, the Plan will take effect when the Board decides.

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18.2. Suspension, termination or amendment

The Plan may be suspended, terminated or amended at any time by the Board, subject to any resolution of the Company required by the Listing Rules.

19. Connection with other schemes

19.1. Connection with other schemes

(a) The Company and any related body corporate of the Company are not restricted to using the Plan as the only method of providing incentive rewards to Employees.

(b) The Company and any related body corporate of the Company may approve other incentive schemes.

(c) Participation in the Plan does not affect, and is not affected by, participation in any other incentive scheme of the Company or any related body corporate of the Company unless the terms of that incentive scheme provide otherwise.

20. Compliance

20.1. ASIC class order compliance

This Plan is intended to comply with the provisions of ASIC Class Order 14/1000 including the limit on offers of Performance Rights that may be made relying on the relief provided in that class order. The Board will take such action or refrain from taking actions so as to remain able to rely on the relief provisions of ASIC Class Order 14/1000.

20.2. Employee share scheme taxing provisions to apply

Subdivision 83A-C of the ITAA 1997 applies to this Plan including to all Rights granted under this Plan and all Shares that arise from the exercise of Rights.

21. General provisions

21.1. Participants bound

Participants issued Rights under this Plan are bound by these Rules and by the Constitution of the Company.

21.2. Notices

(a) Any notice required to be given by the Company to a Participant or any correspondence to be made between the Company and a Participant may be given or made by the Board or its delegate on behalf of the Company.

(b) Any notice to be given by the Company may be given by email, and any reference to the Company giving or providing information or documents in writing includes doing so by email.

21.3. Effect on employee entitlements

(a) Participation in the Plan does not affect an Employee's terms of employment or appointment with the Company. In particular, participation in the Plan does not detract from any right the Company may have to terminate the employment or appointment of an Employee.

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(b) Participation in the Plan, or the issuing of any Rights, does not form part of the Employee's remuneration for the purposes of determining payments in lieu of notice of termination of employment, severance payments, leave entitlements, or any other compensation payable to an Employee upon the termination of employment.

21.4. Governing law

These Rules are governed by and are to be construed in accordance with the laws of New South Wales.

Documents

2015 Executive Rights Plan - Sirtex