Exhibit 10.5
AGGREKO INC.
2026 EMPLOYEE STOCK PURCHASE PLAN
The name of the Plan is the Aggreko Inc. 2026 Employee Stock Purchase Plan (the “Plan”). The purpose of the Plan is to provide eligible employees of the Company and each Designated Company with opportunities to purchase Ordinary Shares.
The Plan includes two components: a Code Section 423 Component (the “423 Component”) and a non-Code Section 423 Component (the “Non-423 Component”). It is the intention of the Company to have the 423 Component to constitute an “employee stock purchase plan” within the meaning of Section 423(b) of the Code, and the 423 Component shall be interpreted in accordance with that intent. Under the Non-423 Component, which does not qualify as an “employee stock purchase plan” within the meaning of Section 423(b) of the Code, Options shall be granted pursuant to rules, procedures or sub-plans adopted by the Administrator designed to achieve tax, securities laws or other objectives for Eligible Employees. Except as otherwise provided herein, the Non-423 Component shall operate and be administered in the same manner as the 423 Component.
A number of Ordinary Shares equal to one half of one percent (0.05%) of the Fully Diluted Shares as of the Effective Date ( shares), have been approved and reserved for this purpose. Commencing on January 1, 2027 and on each subsequent anniversary thereof (but not following the ten year anniversary of the Effective Date), the number of Ordinary Shares reserved and available for issuance under the Plan and the Aggreko Inc. Save As You Earn Option Plan, as may be amended from time to time, shall be increased on each such date by a number of Ordinary Shares equal to the lesser of (x) a number equal to one half of one percent (0.5%) of the Fully-Diluted Shares on the final day of the immediately preceding fiscal year and (y) such smaller number of Ordinary Shares as is determined by the Board. Notwithstanding the foregoing, in no event shall the maximum aggregate number of Ordinary Shares available for issuance under the Plan (all of which may be issued pursuant to rights granted under the 423 Component) and the Aggreko Inc. Save As You Earn Option Plan exceed 28,000,000 shares.
For purposes of the Plan, the following terms shall be defined as set forth below:
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Each Eligible Employee may, by submitting an Enrollment Form as described in Section 6(b), authorize payroll deductions, in whole percentages, at a minimum of the lesser of 1% and
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$100 up to a maximum of 15% of such employee’s Compensation, to be deducted on a pro rata basis for each pay period during an Offering. Payroll deductions shall commence on the first payroll date following the Offering Date and end on the last payroll date on or before the last day of the Offering. Payroll deductions shall be made in accordance with the Eligible Employee’s election; however, due to rounding or other administrative reasons, the actual percentage contributed may be less than the elected percentage. The Company shall maintain notional book accounts showing the amount of payroll deductions made by each Participant for each Purchase Period, but the Company will not hold payroll deductions in a trust or in any segregated account, unless otherwise determined by the Administrator or required by applicable law. No interest shall accrue or be paid on payroll deductions, except as may be required by applicable law. If payroll deductions for purposes of the Plan are prohibited or otherwise problematic under applicable law (as determined by the Administrator in its discretion), the Administrator may require Participants to contribute to the Plan by such other means as determined by the Administrator. Any reference to “payroll deductions” in this Section 7 (or in any other section of the Plan) shall similarly cover contributions by other means made pursuant to this Section 7.
Except as may be determined by the Administrator in advance of an Offering, a Participant may not increase or decrease his or her payroll deduction during any Offering, but may increase or decrease his or her payroll deduction with respect to the next Offering (subject to the limitations of Section 7) by filing a new Enrollment Form at least 15 business days before the next Offering Date (or by such other deadline as shall be established by the Administrator for the Offering). The Administrator may, in advance of any Offering, establish rules permitting a Participant to increase, decrease or terminate his or her payroll deduction during an Offering.
A Participant may withdraw from participation in the Plan by submitting to the Company a revised Enrollment Form indicating his or her election to withdraw (in accordance with such procedures as may be established by the Administrator). The Participant’s withdrawal shall be effective as of the next business day. Following a Participant’s withdrawal, the Company shall promptly refund such individual’s entire account balance under the Plan to him or her (after payment for any Ordinary Shares purchased before the effective date of withdrawal). Partial withdrawals are not permitted. Such an employee may not begin participation again during the remainder of the Offering, but may enroll in a subsequent Offering in accordance with Section 6.
On each Offering Date, the Company shall grant to each Participant in the Plan an option (“Option”) to purchase, on the Exercise Date and at the Option Price hereinafter provided for, the lesser of (a) a number of Ordinary Shares determined by dividing such Participant’s accumulated payroll deductions on such Exercise Date by the Option Price (as defined herein), (b) a number of Ordinary Shares equal to $25,000 divided by the Fair Market Value of an Ordinary Share on the Offering Date or (c) such other lesser maximum number of shares as shall have been established by the Administrator in advance of the Offering (in each case subject to adjustment pursuant to Section 18 or Section 19); provided, however, that such Option shall be subject to the limitations
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set forth below. Each Participant’s Option shall be exercisable only to the extent of such Participant’s accumulated payroll deductions on the Exercise Date. The purchase price for each share purchased under each Option (the “Option Price”) shall, unless otherwise determined by the Administrator in advance of an Offering, be 85% of the Fair Market Value of Ordinary Shares on the Offering Date or the Exercise Date, whichever is less.
Notwithstanding the foregoing, no Participant may be granted an Option hereunder if such Participant, immediately after the Option was granted, would be treated as owning shares possessing 5% or more of the total combined voting power or value of all classes of shares of the Company or any Parent or Subsidiary. For purposes of the preceding sentence, the attribution rules of Section 424(d) of the Code shall apply in determining the share ownership of a Participant, and all shares which the Participant has a contractual right to purchase shall be treated as shares owned by the Participant. In addition, no Participant may be granted an Option which permits the Participant’s rights to purchase shares under the Plan, and any other employee stock purchase plan (described in Section 423 of the Code) of the Company and its Parents and Subsidiaries, to accrue at a rate which exceeds $25,000 of the fair market value of such shares (determined on the option grant date or dates) for each calendar year in which the Option is outstanding at any time. The purpose of the limitation in the preceding sentence is to comply with Section 423(b)(8) of the Code and shall be applied taking Options into account in the order in which they were granted.
Each employee who continues to be a Participant in the Plan on the Exercise Date shall be deemed to have exercised his or her Option on such date and shall acquire from the Company such number of whole Ordinary Shares reserved for the purpose of the Plan as the Participant’s accumulated payroll deductions on such date shall purchase at the Option Price, subject to any other limitations contained in the Plan. Unless otherwise determined by the Administrator in advance of an Offering, any amount remaining in a Participant’s account after the purchase of shares on an Exercise Date of an Offering solely by reason of the inability to purchase a fractional share shall be carried forward to the next Offering; any other balance remaining in a Participant’s account at the end of an Offering shall be refunded to the Participant promptly.
Certificates representing Ordinary Shares purchased under the Plan may be issued only in the name of the employee, in the name of the employee and another person of legal age as joint tenants with rights of survivorship, or in the name of a broker authorized by the employee to be his, her or their, nominee for such purpose. Participants will not have any voting, dividend, or other rights of a shareholder with respect to the Ordinary Shares until such shares have been delivered pursuant to this Section 12. All transactions under this Plan are subject to the Company’s insider trading policy as may be in effect from time to time. This includes any blackout period prohibition or requirement to obtain mandatory pre-clearance of transactions such as enrollment, withdrawal, or trading. If the standard enrollment period is scheduled to occur during a blackout period, arrangements will be made to allow for restricted insiders to update their elections during the preceding open trading window.
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If a Participant’s employment terminates for any reason, or if the Participant’s employment status changes such that the Participant is no longer an Eligible Employee, before the Exercise Date for any Purchase Period, no payroll deduction shall be taken from any pay due and owing to the Participant and the balance in the Participant’s notional account shall be paid, as if such Participant had withdrawn from the Plan under Section 9, to such Participant or, in the case of such Participant’s death, to (i) the legal representative of the Participant’s estate; or (ii) if no such legal representative has been appointed to the knowledge of the Company, to such other person(s) as the Company may, in its discretion, designate. An employee shall be deemed to have terminated employment, for this purpose, if the corporation that employs him or her, having been a Designated Company, ceases to be a Subsidiary or Affiliate, or if the employee is transferred to any corporation other than the Company or a Designated Company. Unless otherwise determined by the Administrator, a Participant whose employment transfers between, or whose employment terminates with an immediate rehire (with no break in service) by, Designated Companies or a Designated Company and the Company shall not be treated as having terminated employment for purposes of participating in the Plan or an Offering; provided, however, that if a Participant transfers from an Offering under the 423 Component to an Offering under the Non-423 Component, the exercise of the Participant’s Option shall be qualified under the 423 Component only to the extent that such exercise complies with Section 423 of the Code. If a Participant transfers from an Offering under the Non-423 Component to an Offering under the 423 Component, the exercise of the Participant’s Option shall remain non-qualified under the Non-423 Component.
Notwithstanding anything herein to the contrary, the Administrator may adopt special rules or sub-plans applicable to the employees of the Company or a particular Designated Company, whenever the Administrator determines that such rules are necessary or appropriate for the implementation of the Plan in a jurisdiction where the Company or such Designated Company has employees, regarding, without limitation, eligibility to participate in the Plan, handling and making of payroll deductions or contribution by other means, establishment of bank or trust accounts to hold payroll deductions, payment of interest, conversion of local currency, obligations to pay payroll tax, withholding procedures and handling of share issuances, any of which may vary according to applicable requirements; provided that if such special rules or sub-plans are inconsistent with the requirements of Section 423 of the Code, the employees subject to such special rules or sub-plans shall participate in the Non-423 Component, and Options granted thereunder will not be required by the terms of the Plan to comply with Section 423 of the Code.
Neither the granting of an Option to a Participant nor the deductions from a Participant’s pay shall result in such Participant becoming a holder of the Ordinary Shares covered by an Option under the Plan until such shares have been purchased by and issued to such Participant.
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Rights under the Plan are not transferable by a Participant other than by will or the laws of descent and distribution, and are exercisable during the Participant’s lifetime only by the Participant.
All funds received or held by the Company under the Plan may be combined with other corporate funds and may be used for any corporate purpose, unless otherwise required under applicable law.
In the event of any share split, reverse share split, share dividend, recapitalization, combination of shares, reclassification of shares, spin-off, or other similar change in capitalization or event, any distribution to holders of Ordinary Shares other than an ordinary cash dividend, or any other change affecting the Ordinary Shares, (i) the number and class of shares approved for the Plan, (ii) the Option Price, and (iii) the share limitation set forth in Section 10 shall be equitably or proportionately adjusted to the extent determined by the Administrator to give proper effect to such event, in accordance with applicable law.
In connection with a Reorganization Event, the Administrator shall take any one or more of the following actions as to outstanding Options on such terms as the Administrator determines:
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For purposes of clause (a) above, an Option shall be considered assumed if, following consummation of the Reorganization Event, the Option confers the right to purchase, for each Ordinary Share subject to the Option immediately prior to the consummation of the Reorganization Event, the consideration (whether cash, securities, or other property) received as a result of the Reorganization Event by holders of Ordinary Shares for each Ordinary Share held immediately prior to the consummation of the Reorganization Event (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Ordinary Shares); provided, however, that if the consideration received as a result of the Reorganization Event is not solely common stock, ordinary shares or the equivalent of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of Options to consist solely of common stock, ordinary shares or the equivalent of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in value (as determined by the Administrator) to the per share consideration received by holders of outstanding Ordinary Shares as a result of the Reorganization Event.
In addition, with respect to any outstanding Option under the 423 Component of the Plan, any action taken under this Section 19 shall be consistent with the intent that such Options comply with Section 423 of the Code, unless otherwise expressly determined by the Administrator. The Plan shall in no event be construed to restrict in any way the Company’s right to undertake a dissolution, liquidation, merger, consolidation or other Reorganization Event.
The Administrator may at any time and from time to time amend the Plan in any respect, except that, without the approval within 12 months of such Administrator action by the shareholders of the Company, no amendment shall be made increasing the number of shares approved for the Plan or making any other change that would require shareholder approval under the requirements of any stock exchange upon which the shares may then be listed or in order for the 423 Component of the Plan, as amended, to qualify as an “employee stock purchase plan” under Section 423(b) of the Code. In no event may any amendment be made which would cause the Plan to fail to comply with Section 423 of the Code.
The Administrator may, at any time, suspend the Plan; provided that the Company shall provide notice to the Participants prior to the effectiveness of such suspension. The Administrator may resume the operation of the Plan following any such suspension; provided that the Company shall provide notice to the Participants prior to the date of termination of the suspension period. A Participant shall remain a Participant in the Plan during any suspension period (unless the
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Participant withdraws pursuant to Section 9). However, no Options shall be granted or exercised, and no payroll deductions shall be made in respect of any Participant, during the suspension period.
If the total number of Ordinary Shares that would otherwise be purchased on any Exercise Date plus the number of shares purchased under previous Offerings under the Plan exceeds the maximum number of shares issuable under the Plan, the shares then available shall be apportioned in a manner consistent with the requirements of Section 423(b)(4) and (5) of the Code and the regulations thereunder among Participants in proportion to the amount of payroll deductions accumulated on behalf of each Participant that would otherwise be used to purchase Ordinary Shares on such Exercise Date.
The Plan was adopted on , subject to approval by the Company’s shareholders, and became effective on (the “Effective Date”).
The Plan may be terminated at any time by the Administrator. Upon termination of the Plan, all amounts in the accounts of Participants shall be promptly refunded. The Plan shall automatically terminate on the ten-year anniversary of the date the Plan is approved by the Company’s shareholders.
The Company’s obligation to sell and deliver Ordinary Shares under the Plan is subject to the completion of any registration or qualification of the Ordinary Shares under any U.S. or non-U.S. local, state or federal securities or exchange control law, or under rulings or regulations of the SEC or of any other governmental regulatory body, and to obtaining any approval or other clearance from any U.S. and non-U.S. local, state or federal governmental agency, which registration, qualification or approval the Company may, in its absolute discretion, deem necessary or advisable. The Company is under no obligation to register or qualify the Ordinary Shares with the SEC or any other U.S. or non-U.S. securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of such shares. If, pursuant to this Section 25, the Administrator determines that the Ordinary Shares will not be issued to any Participant, all accumulated payroll deductions will be promptly refunded, without interest (unless otherwise required pursuant to applicable law), to the Participant, without any liability to the Company or any of its Affiliates.
Shares may be issued upon exercise of an Option from authorized but unissued Ordinary Shares, from shares held in the treasury of the Company, or from any other proper source.
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Participation in the Plan is subject to any applicable U.S. and non-U.S. federal, state or local tax withholding requirements on income the Participant realizes in connection with the Plan. Each Participant agrees, by entering the Plan, that the Company or any Subsidiary or Affiliate may, but shall not be obligated to, withhold from a Participant’s wages, salary or other compensation at any time the amount necessary for the Company or any Subsidiary or Affiliate to meet applicable withholding obligations, including any withholding required to make available to the Company or any Subsidiary or Affiliate any tax deductions or benefits attributable to the sale or disposition of Ordinary Shares by such Participant. In addition, the Company or any Subsidiary or Affiliate may, but shall not be obligated to, withhold from the proceeds of the sale of Ordinary Shares or any other method of withholding that the Company or any Subsidiary or Affiliate deems appropriate to the extent permitted by U.S. Treasury Regulation Section 1.423-2(f) with respect to the 423 Component. The Company shall not be required to issue any Ordinary Shares under the Plan until such obligations are satisfied.
The 423 Component of the Plan is exempt from the application of Section 409A of the Code and any ambiguities herein shall be interpreted to so be exempt from Section 409A of the Code. The Non-423 Component is intended to be exempt from the application of Section 409A of the Code as Options granted thereunder are intended to constitute “short term deferrals” and any ambiguities herein shall be interpreted such that those Options shall so be exempt from Section 409A of the Code. In furtherance of the foregoing and notwithstanding any provision in the Plan to the contrary, if the Administrator determines that an Option granted under the Plan may be subject to Section 409A of the Code or that any provision in the Plan would cause an Option under the Plan to be subject to Section 409A of the Code, the Administrator may amend the terms of the Plan and/or of an outstanding Option granted under the Plan, or take such other action the Administrator determines is necessary or appropriate, in each case, without the Participant’s consent, to exempt any outstanding Option or future Option that may be granted under the Plan from or to allow any such Options to comply with Section 409A of the Code, but only to the extent any such amendments or action by the Administrator would not violate Section 409A of the Code. Notwithstanding the foregoing, the Company shall have no liability to a Participant or any other party if the Option to purchase Ordinary Shares under the Plan that is intended to be exempt from or compliant with Section 409A of the Code is not so exempt or compliant or for any action taken by the Administrator with respect thereto. The Company makes no representation that the Option to purchase Ordinary Shares under the Plan is compliant with Section 409A of the Code.
Each Participant agrees, by entering the 423 Component of the Plan, to give the Company prompt notice of any disposition of shares purchased under the Plan where such disposition occurs within two years after the date of grant of the Option pursuant to which such shares were purchased or within one year after the date such shares were purchased.
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Notwithstanding any provision of the Plan to the contrary and in accordance with Section 423 of the Code, all Eligible Employees participating in the 423 Component shall have the same rights and privileges.
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AGGREKO, INC.
2026 EMPLOYEE STOCK PURCHASE PLAN
U.K. SUB-PLAN
Section 1. Application
This sub-plan (the “U.K. Sub-Plan”) is established in accordance with Section 14 of the Plan and the sets forth additional terms and conditions applicable to the Options granted to, and the Ordinary Shares purchased by, Employees (as defined below) who are (or are deemed to be) resident in the U.K. for tax purposes and forms an integral part of the Plan and other Plan Documents (as defined below).
Section 2. Definitions
| a) | For the purposes of this U.K. Sub-Plan, the following terms shall have the meanings set out below: |
1) | “Data Protection Laws” means the (a) the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), the GDPR as transposed into the national laws of any EEA member state and the U.K. (the “U.K. GDPR”), and any amendments made thereto; (b) any national laws supplementing the GDPR and the U.K. GDPR; |
2) | “FSMA” means the Financial Services and Markets Act 2000 (as amended from time to time). |
3) | “ITEPA 2003” means the Income Tax (Earnings and Pensions) Act 2003 (as amended from time to time). |
4) | “Order” means the U.K. Financial Services and Markets Act 2000 (Financial Promotion) Order 2005/1529 (as amended from time to time). |
5) | “Plan Documents” means the Plan and any other documents or mediums (including websites) entered into by, provided to, or accessed by, an Eligible Employee, at the request or direction of the Company or its Subsidiaries, in connection with the Plan and the grant of an Option or acquisition of Ordinary Shares thereunder (including any offering document, prospectus, Enrollment Form or website allowing Eligible Employees to electronically enroll in an Offering Period). |
b) | The final sentence of the definition of “Designated Company” shall be deleted and replaced with the following |
For purposes of this U.K. Sub-Plan, only the Company and its Subsidiaries may be Designated Companies.
c) | The definition of “Subsidiary” shall be deleted and replaced with the following: |
“Subsidiary” shall have the meaning given to it for the purposes of the “employee share schemes” exemption under Article 60(2) of the Order, with respect to the Company.
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d) | All other capitalized terms used in this U.K. Sub-Plan shall be as defined under the Plan. |
Section 3. Eligibility
| a) | Section 4(a) shall be deleted and replaced with the following wording: |
All bona fide employees of the Company and any Subsidiary are eligible to participate in any one or more of the Offerings under the Plan (“Eligible Employees”). Notwithstanding any other provision herein, individuals who are not classified as bona fide employees of the Company or a Subsidiary on the Offering Date are not considered to be “Eligible Employees” of the Company or any Subsidiary and shall not be eligible to participate in the Plan with respect to such Offering.
b) | Section 4(b) shall be deleted in its entirety. |
Section 4. Participation
a) | Section 6(iii) shall be deleted and replaced with the following wording: (iii) gives or receives notice to terminate employment or otherwise becomes ineligible to participate in the Plan. |
b) | In Section 13 shall be deleted and replaced with the following wording |
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Section 5. Data Protection
The following provisions shall be added to the Plan:
a) | Purposes and Legal Bases of Processing. The Participant acknowledges that the Company processes personal data about them, including, but not limited to, their name, email address, job title, employee identification number, salary, bank information, and any Ordinary Shares offered, received, purchased or sold under the Plan from time to time, and any other appropriate financial or other data about the Participant and the Participant’s participation in the Plan (“Data”) for the implementation, operation and administration of the Plan (the “Purposes”) and is the controller for the processing of such Data in connection with the Purposes. The legal bases for the processing of the Data by the Company are: (i) the necessity of the processing for the Company to perform its contractual obligations in connection with the Purposes; and (ii) the Company’s and the Participant’s legitimate business interests in managing the Plan (including the Participant’s participation in the Plan and the grant of Options thereunder). The Participant understands that, as a consequence of refusing to provide Data, the Company may not be able to allow the Participant to participate in the Plan, or grant or maintain Options. However, the Participant’s participation in the Plan is purely voluntary. Additionally, where the Company processes special categories of personal data, the condition applicable to the lawfulness of such processing is the necessity of the Company to carry out the obligations imposed on it in the field of employment, social security and social protection law. |
b) | Data Sharing: Any member of the Company's group may share the Data, in connection with the Purposes, with: (i) any other group company; (ii) any trustee of any employee benefit trust or other trust operated in conjunction with the Plan; (iii) a third party broker, registrar, advisor, or administrator; and (iv) a future purchaser of the Company or any group company. For transfers of Data from the U.K. or the EEA to a third country or an international organization, the Company will ensure that any such transfers are subject to appropriate safeguards, and where applicable, on condition that enforceable data subject rights and effective legal remedies for Participants are available. |
c) | Participant Rights. The Participant acknowledges that they may, subject to certain restrictions, exercise the rights granted to them under applicable Data Protection Laws, including (but not limited to) the right to, where applicable, request to access or be provided with a copy of their Data, request additional information about the storage and processing of their Data, request to receive their Data in a structured, commonly used format and have such Data transmitted to another party, request that the processing of their Data is restricted, request that their Data is erased or otherwise object to its processing by the Company. In addition, the Participant acknowledges that they have the right to lodge a complaint with the competent supervisory authority in their jurisdiction. |
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d) | Privacy Notice. Further information on how the Company processes Data and the rights of Participants in relation to the processing of their Data are set out in the Company’s data privacy notice, as updated and amended from time to time, which is available on the Company’s internal intranet portal. By participating in the Plan or accepting any rights thereunder, the Participant confirms that they have read and acknowledged the content of the aforementioned data privacy notice. |
Section 6. Taxes
The following provisions shall be added to the Plan:
a) | Withholding. For the avoidance of doubt any reference in Section 27 to “withholding”, shall include any liability of the Company or its Subsidiaries to withhold income tax and employee National Insurance contributions arising on the grant, vesting, exercise, settlement or otherwise in connection with an Option under pay as you earn (PAYE). |
| b) | Section 431 Elections. To the extent required by the Company, any Subsidiary or the Participant’s employer (as applicable), as a condition to the exercise of any Options or the issuance of any Ordinary Shares in accordance with the Plan, the Participant agrees to enter into an election under section 431 of ITEPA 2003 before or within 14 days after the acquisition of any Ordinary Shares purchased in accordance with the Plan. |
c) | Deductions. By participating in the Plan, and for the purposes of the Employment Rights Act 1996 (as amended from time to time), the participant authorizes the Company and/or its Subsidiaries to make payroll deductions from their salary and any other remuneration or sums due to them, including any payments due to them on the termination of their employment, in accordance with the rules of the Plan and the terms of any other Plan Documents. |
d) | Indemnity. The Participant agrees that they are liable for and shall indemnify and keep indemnified the Company, any Subsidiary and / or their employer (as applicable) from and against any liability for or obligation to pay any tax liability being any liability for income tax, employee National Insurance contributions, or any other similar obligations to pay or account for tax or social security contributions (wherever in the world arising) that may arise in respect of the grant, vesting, settlement, disposal or otherwise in connection with an Award (including any amount due under pay as you earn (PAYE) in respect of any Award or Ordinary Shares as a result of the failure by the Participant to make good such an amount within the time limit specified in section 222 of ITEPA 2003). |
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Section 7. Right of Participants.
The following provision shall be added to the Plan:
The grant of an Option under the Plan Documents is a discretionary benefit operated by the Company, and no Eligible Employee participates as of right in the Plan. The grant of an Option does not imply a right to participate or to be considered for participation in a later grant and any rights granted under the Plan Documents are separate to the Eligible Employee’s rights under any contract of employment they have entered into with the Company or any Designated Company.
The Participant waives all and any rights to compensation or damages for the termination of their employment with the Company or any Designated Company for any reason whatsoever (including unlawful termination of employment) insofar as those rights arise or may arise from the Participant ceasing to have rights under the Plan Documents as a result of that termination or from the loss or diminution in value of such rights or entitlements. Nothing in the Plan Documents will give any person any right to continue in employment or will affect the right of the Company or any Designated Company to terminate the employment of any participant or any other person without liability at any time, or will impose on the Company or any Designated Company or their respective agents, employees and officers any liability in connection with the loss of a Participant’s benefits or rights under the Plan Documents or as a result of the exercise of a discretion under the Plan Documents for any reason as a result of the termination of the Participant’s employment. For the avoidance of doubt, nothing in this paragraph shall abrogate the Participant’s contractual rights on termination of employment in respect of any Option, as expressly provided for under the Plan Documents.
Section 8. Acknowledgments
The following provision shall be added to the Plan:
By participating in the Plan, the Participant acknowledges and agrees that:
a) | their participation in the Plan and subscription of Ordinary Shares in accordance with the Plan Documents in the U.K. is being made pursuant to one or more exemptions under the FSMA and Regulation (EU) 2017/1129 as it forms part of domestic law in the U.K. by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”) from the requirement for the Company to produce a prospectus for offers of securities. Accordingly, following the participant’s receipt of the Plan Documents, the Company has not prepared or filed a prospectus with the Financial Conduct Authority and no such prospectus has been approved or published in the U.K. in accordance with section 85 of the FSMA or the UK Prospectus Regulation; |
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b) | the Participant is a bona fide employee of the Company or a Designated Company and the Participant’s right to participate and subscribe for the Ordinary Shares in accordance with the Plan Documents is being granted to the Participant by the Company pursuant to the “employee share schemes” exemption under Article 60(2) of the Order. In the U.K., the Plan Documents are directed only at Eligible Employees and must not be acted on or relied on by persons who are not the categories of individuals set out in Article 60(2)(a) of the Order. Any person who is not an Employee should not act or rely on the Plan Documents or their respective contents; and |
c) | if the Participant is in any doubt about the content of the Plan Documents, the participant should seek their own independent financial advice immediately from an independent financial adviser, authorized under the FSMA. The Participant further acknowledges and agrees that nothing in the Plan Documents constitute financial advice to any holder of any Option or any Ordinary Shares by the Company, any Designated Company or the Participant’s employer. |
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