GENERAL TERMS AND CONDITIONS OF LONG-TERM INCENTIVE PLAN (MOTIVATING PROGRAM) FOR KEY PERSONNEL

Transcription

1 GENERAL TERMS AND CONDITIONS OF LONG-TERM INCENTIVE PLAN (MOTIVATING PROGRAM) FOR KEY PERSONNEL 1. Background and goals 1.1.In order to motivate Members of Key Personnel, on ( ) 2017, the Shareholder s Meeting of the Company adopted the Resolution deciding that the motivating program in a form of the long-term incentive plan should be adopted and introduced in the Company. The Resolution was adopted by (at least) a 75% majority of the votes cast in favour of such resolution by all equity securities holders present or represented by proxy at the general meeting to approve such Resolution. LR14.1(a) 1.2.The purpose of the Resolution is to create an economic motivation - based on the measured business outcome and performance of the Company and on individual loyalty - for the Members of Key Personnel of the Affiliates of the Company so to enhance their economic motivation, specifically related to providing their services to the non-dutch Affiliates of the Company concerning real-estate businesses on the territory of the Republic of Poland. The LTI Plan is not related to the services of the Members of Key Personnel in the Netherlands and is not related to the services of the statutory board members of the Company.Participation in the LTI is related to the duties performed by the Members of Key Personnel in favour of the Company s Affiliates in Poland, in connection to their employment/personal activity in the Polish companies being subsidiaries of the Company. 1.3.The aforementioned economic motivation was achieved by granting, free of charge, under the Resolution, Shares to the Members of Key Personnel in the number resulting from this LTI Plan which will be transferred to the Members of Key Personnel on vesting dates resulting from this LTI Plan. For the avoidance of any doubt, all Shares granted within this LTI Plan are granted under the Resolution. 1 LR14.1(d)(i), 14.1(d)(ii) & 14.1(d)(iii)

2 1.4.The Resolution and this LTI Plan (including all Schedules thereto) shall be available for inspection by Company s shareholders during normal business hours at Company s registered office and in Johannesburg at the offices of the Company s JSE sponsor, Java Capital. 2. Definitions 2.1.In this LTI Plan, unless the context otherwise requires, the following definitions apply: Motivation Program Adherence Act Adjusted EBITDA Target means an act by which the Member of the Key Personnel confirms its participation in LTI Plan as defined in the Clause 3.3; as defined in Point 5 of the Schedule 3; Adjusted DPS Target as defined in Point 5 of the Schedule 3; Affiliate means a related party in the meaning of the International Accounting Standard 24; the term Affiliated with shall be construed accordingly; Bad Leaver means a situation where a Member of Key Personnel is Finally Disengaged for one or more of the following reasons: - his or her gross violation of duties of a Member of Key Personnel(other than Fraud) confirmed by the final verdict of competent court; - voluntary decision of a Member of Key Personnel to quit co-operation and work with the Company and its Affiliates, in particular a decision to 2

3 Board of Directors Business Day Company control begin working for competitors of the Company and/or Company s Affiliates (unless for reasons on the side of the Company and/or Company s Affiliates, or motivated by retirement, health problems, family situation and other serious and justified reasons); (all as Bad Leaver Events ); means all executive and non-executive directors of the Company; means any day except a Saturday, Sunday, public holiday in South Africa or any other day on which the JSE or LuxSE is closed; provided that in case where JSE is closed for more than 5 (five) days or its operations, due to any reasons, in particular force majeure, political or other extraordinary events, are frustrated it means any day except a Saturday, Sunday or public holiday in Netherlands. For the avoidance of doubts, when this LTI Plan refers to a day it means a calendar day; means Echo Polska Properties N.V. with its official seat in Amsterdam, the Netherlands, registered with the Dutch trade register under number ; means: (i) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: (A) cast, or control the casting of 30 per cent. or more of the maximum number of votes that might be cast at a 3

4 Change of Control DPS DPS Target general meeting of the Company; or (B) appoint or remove all, or the majority, of the directors or other equivalent officers of the Company; or (C) give directions with respect to the operating and financial policies of the Company with which the directors or other equivalent officers of the Company are obliged to comply; and/or (ii) the holding beneficially of 30 per cent or more of the issued share capital of the Company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); means any event where any change of control (as defined above), with regards to the Company, occurs; means the annual sum of dividends declared by the Company for every ordinary share outstanding (for the sake of clarity, if for any reasons the Company decides not to, or fails to, declare dividend, although there were sufficient financial results, legal conditions and monetary resources to declare such dividend, DPS means such dividends that could be, but were not, legally declared); means the percentage growth target of DPS in a respective Reference Period in comparison to DPS in a previous year, set up by the Board of Directors for each Tranche and the relevant Reference Period; 4

5 DPS Growth EBITDA EBITDA Target EBITDA Growth Encumbrances means actual percentage growth of dividend payable by the Company to its shareholders per one share in a respective Reference Period in comparison to dividend payable by the Company in a previous year, calculated pursuant to the following formula: [(dividend per share in year X+1)/( divided by )(dividend per share in year X)] ( minus ) 1; means consolidated Rental income and recoveries decreased by consolidated Property operating expenses and decreased by consolidated Administrative expenses. The terms Rental Income and recoveries, Property operating expenses and Administrative expenses shall be interpreted in accordance with Echo Polska Properties Group Consolidated Financial Statements; means the percentage growth target of EBITDA in a respective Reference Period (in comparison to EBITDA in a previous year), set up by the Board of Directors for each Tranche and the relevant Reference Period; mean an actual percentage growth of EBITDA (in comparison to Company s EBITDA in a previous year), calculated pursuant to the following formula: [[(EBITDA in year X+1)/( divided by )(EBITDA in year X)] ( minus ) 1; means any mortgage, charge (fixed or floating), pledge, lien, hypothecation, 5

6 Engagement Fraud guarantee, trust, right of set off or other third party or interest (legal or equitable) including any assignment by way of security, reservation of title or other security interest of any kind, howsoever created or arising, or any other agreement or arrangement (including a sale and repurchase agreement) having similar effect; means a situation where a Member of Key Personnel (or any Affiliates of such Member of Key Personnel) is anyhow engaged by the Company or by any of Company s Affiliates to provide work, duties and/or services, in particular upon an employment contract, service agreement or any other agreement or arrangement; the term Engaged shall be construed accordingly. The term Finally Disengaged respectively means a situation where there is no Engagement whatsoever (and any and all such Engagements ceased to exist and no other Engagement(s) were put in place) with such Member of Key Personnel nor with any Affiliate of such Member of Key Personnel. The term Final Disengagement shall be construed accordingly; means a situation where the Member of Key Personnel is Finally Disengaged due to his or her wilful gross violation of duties of a Member of Key Personnel constituting a wilful criminal act (such as a fraud or alike criminal activity) confirmed by the final verdict of the court; 6

7 Good Leaver JSE Lock-up Period means a situation where the Member of Key Personnel is Finally Disengaged for one or more of the following reasons: - death, - ill health, - termination of his or her Engagement(s) with the Company and/or its Affiliate(s) resulting from (i) a decision of a Member of Key Personnel motivated by reasons on the side of the Company and/or Company s Affiliate, such as in particular breach of rights of a Member of Key Personnel, failure to perform obligations by the Company and/or Company s Affiliate, etc. or (ii)a decision of the Company and/or Company s Affiliate; - retirement; and/or - and other reasons whatsoever save for Bad Leaver Events or Fraud; (all as Good Leaver Events ); means JSE Limited, a company duly registered and incorporated with limited liability under the company laws of the Republic of South Africa, licensed to operate an exchange under the Financial Markets Act, 2012 (Act No. 19 of 2012) and any measure prescribed thereunder by the Minister of Finance or the Registrar (South Africa) and/or any subsequent legislation; as defined in Clause 6.1; the link between respective Tranches, Reference Periods, Vesting Dates and Lock-up Periods is 7

8 illustrated in the table attached as Schedule 4; Loyalty Target as defined in Point 4 of the Schedule 3; Loyalty Shares means Shares to be transferred in a given Tranche, on given Vesting Date, in the amount equal to [25% x i(s)] in consideration for continuing of the Engagement; LuxSE means Luxembourg Stock Exchange; LTI Plan means this long-term incentive plan (motivating program)established and introduced by the Resolution and regulated by these general terms and conditions together with the schedules attached thereto; Members of the Key Personnel means the natural persons specified in Schedule 1 thereto, as well as any entity Affiliated with a Member of Key Personnel designated by such Member of Key Personnel, pursuant to Clause 3.5. For the sake of clarity, a Member of the Key Personnel may also participate in LTI Plan within the individual business activity; Monetary Award as defined in the Clause 11.3; party means respectively a Member of Key Personnel and the Company; Performance Shares means Shares to be transferred in a given Tranche, on given Vesting Date, in consideration for satisfaction of Performance Targets, i.e. P% x i(s); Performance Targets as defined in Point 5 of the Schedule 3; Reference Period means a financial year corresponding to a given Loyalty Target and given Performance Targets, as well as to a given Vesting Date; when such given Loyalty 8

9 Resolution Restricted Shares Shares Target and/or Performance Targets are satisfied it allows a Member of Key Personnel to request that a given Tranche shall be transferred to him/her on a given Vesting Date. The link between respective Tranches, Reference Periods, Vesting Dates and Lock-up Periods is illustrated in the table attached as Schedule 4; means the resolution of the Shareholders Meeting of the Company dated [8 December 2017] approving, inter alia, the LTI Plan as well as the authorisation of the Board of Directors in respect of issuing new Shares (the New Shares ) for the purpose of offering them to the Members of Key Personnel; means the Shares that were transferred to a Member of Key Personnel with regards to which the Lock-up Period has not yet passed, i.e. upon the lapse of the Lock-up Period the Restricted Shares cease to be Restricted Shares; means shares in the share capital of the Company, dematerialized, free from any encumbrances, and fully admitted to public trading and listed on main exchange of JSE, and LuxSE and/or any other stock exchange. For the sake of clarity, the Shares granted and to be transferred to Members of the Personnel shall rank pari passus to all other shares in the Company and shall enjoy the same corporate and economic rights, including right to voting, dividend and other rights, including those arising on a 9

10 Tranche Valuation Expert Vesting Date liquidation; means the Shares, in the number calculated pursuant to the formula specified in Schedule 3, that the Company shall transfer to a Member of Key Personnel on a given Vesting Date. For the sake of clarity, the First Tranche means the Shares to be transferred on the first Vesting Date (i.e. being no later than 31 December 2017), the Second Tranche - the Shares to be transferred on the second Vesting Date (i.e. the first Business day of July 2018), the Third Tranche - the Shares to be transferred on the third Vesting Date (i.e. the first Business day of July 2019) etc.; means a Polish, Dutch or South African company or entity (office based in Poland, Netherlands or South Africa) being a reputable expert in finances. Without prejudice to generality of the foregoing, for the purpose of this definition, in particular the following entities meet the aforementioned criteria: EY, Deloitte, KPMG, PricewaterhouseCoopers, Grant Thornton, BDO, Mazars; means the date in each calendar year, on which the Company shall transfer to a Member of Key Personnel a given Tranche, which is the first Business Day of July each year (save for the first Vesting Date which shall be no later than 31 December 2017, as determined by the Board of Directors ). The link between respective Tranches, Reference Periods, Vesting Dates and Lock- 10

11 up Periods is illustrated in the table attached as Schedule 4; 2.2.Headings of clauses are for convenience only and do not affect their construction or interpretation. 2.3.References to this LTI Plan for any purpose include the recitals and Schedules which form part of this LTI Plan. References in this LTI Plan to the parties, recitals, schedules and clauses are references respectively to the parties and their legal personal representatives, successors and permitted assignees, the recitals and Schedules to and clauses of this LTI Plan. 2.4.References to any document (including this LTI Plan) are references to that document as amended, consolidated, supplemented, novated or replaced from time to time. 2.5.Unless the context does not so permit, words importing one gender shall be treated as importing either gender, words importing an individual shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part thereof unless expressly stipulated to the contrary. 2.6.Save where specifically required or indicated otherwise, references to the word include or including (or any similar term) are not to be construed as implying any limitation, and general words introduced by the word other (or any similar term) shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things. 11

12 2.7.References to a third party shall be deemed to refer to any party other than a party, unless the context requires otherwise, but shall always include any administrative or governmental agency. 2.8.A guarantee given by any of the Parties shall be construed as resulting in a liability of a guarantee nature, under which the guaranteeing Party is liable for the occurrence or non-occurrence of a specific result, with no regard to any kind of fault or knowledge of such Party or occurrence of a detriment. In case where this LTI Plan uses a phrase warrants it shall be construed the same as phrase guarantee and it triggers the liability of a guarantee nature of the Party for the occurrence or, respectively, non-occurrence of warranted state of result. 2.9.Where this LTI Plan refers to the transfer of Shares by the Company to a Member of Key Personnel it means the valid transfer of the title (ownership) to Shares from the Company to a Member of Key Personnel including all rights and privileges (including both economic and corporate) vested in or related to such transferred Shares. The term free of charge means in particular that the Member of Key Personnel shall not pay any price or other remuneration, nor bear any other costs, nor perform any other consideration, in exchange for Shares that are granted and transferred to such Member of Key Personnel As required in terms of the JSE Listings Requirements, the provisions related to the following matterscannot be altered without the prior approval of shareholders (requiring a 75% majority of the votes cast in favour of such resolution by all shareholders present or represented by proxy at the general meeting to approve such resolution), excluding all the votes attaching to all Restricted Shares owned or controlled by persons who are existing Members of Key Personnel: LR14.2 (i) approving amendments to the LTI Plan; 12

13 (ii) the category of persons to whom, or for the benefit of whom Shares may be granted under the LTI Plan; (iii) the number of Shares which may be utilised for purposes of the LTI Plan which stated number may not be exceeded without shareholder approval; (iv) the number of Shares which may be granted to any Member of Key Personnel; (v) the amount, if any, payable on the grant of Shares; (vi) the basis for determining the price (if any and regardless of the form that it takes) payable by Members of Key Personnel and the period after or during which such payment must be made. (vii) the voting, dividend, transfer and other rights, including those arising on a liquidation of the Company, attaching to the Shares; (viii) the basis upon which awards are made; (ix) the treatment of Restricted Shares in instances of mergers, takeovers or corporate actions; and (x) the rights of Member of Key Personnel who leave the employment of the Company whether by termination, resignation, retirement or death insofar as their early departure from the LTI Plan is concerned. 3. Eligible participants LR14.1(a) 3.1.Any Member of the Key Personnel is eligible to participate in and benefit from the LTI Plan. 3.2.The list of Members of the Key Personnel is attached as Schedule 1 thereto and will be updated from time to time as required. 3.3.A Member of the Key Personnel confirms its participation in the rights, benefits and privileges resulting from the LTI Plan by executing the Motivation Program Adherence Act which template is attached as Schedule 2 hereto (the Motivation Program 13 LR14.1(f) & 14.9(a)

14 Adherence Act ). The Motivation Program Adherence Act will be signed by and between the Company and a Member of Key Personnel and they may agree for any additional terms and provisions or amendments provided that they do not contradict to this LTI Plan. 3.4.Taken into consideration that the motivation program concerns activities of the Company related to its affairs on the territory of Poland (carried by the Company itself and/or through Company s affiliates as the case may be), the Affiliates of the Company may, as a part of additional motivation for the Members of Key Personnel, adhere to Motivation Program Adherence Acts as additional parties thereto guaranteeing and/or otherwise securing for the benefit of a Member of Key Personnel performance of obligations of the Company resulting from this LTI Plan (including granting of pledges, liens or otherwise protecting the Members of Key Personnel against a possible default of the Company). 3.5.A Member of Key Personnel may (but is not obligated to) participate in and benefit from the LTI Plan, in lieu of himself personally, though his or her Affiliate provided that such Affiliate renders services to the Company or any of Company s Affiliate(s). In such case, the Motivation Program Adherence Act is signed by and between the Company and such entity. Otherwise a Member of Key Personnel participates and benefits from LTI Plan personally as a natural person. A Member of Key Personnel may also, at his or her discretion, choose to participate in LTI Plan within his or her individual business activity. 3.6.A Member of Key Personnel may (but is not obligated to) transfer all rights in and benefit from the LTI Plan to its Affiliate provided that such Affiliate renders services to the Company or any of Company s Affiliate(s). The transfer takes place upon written notice of a Member of Key Personnel to the Company informing of such transfer. Upon the written request of the Company, a Member of Key 14

15 Personnel shall provide the Company with documents confirming that such entity designated by a Member of Key Personnel is his or her Affiliate. 3.7.Due to the key role undertaken by Mr Hadley Dean on behalf of the Company and its Affiliates in Poland, and given the potential risk exposure to the Company as a result of the high volume of Shares allocated to Mr Hadley Dean, the Shares allocated to Mr Hadley Dean will be held by a reputable third party Depositary ( Depositary ) for the duration of the Lock-up Period (as further detailed in Clauses to below) The respective Tranches - that would be otherwise directly transferred to Mr Hadley Dean on the respective Vesting Dates - will be transferred on the respective Vesting Dates to the Depositary, pursuant to the agreement to be concluded between the Company and such Depositary (the Deposit Agreement ) The Depositary will hold such Shares under the same conditions as each Member of the Key Personnel; and: shall release and transfer them to Mr Hadley Dean following the end of the respective Lock-up Period, i.e. when such Shares cease to be the Restricted Shares (the Release Date ); or upon the written instruction of Mr Hadley Dean, shall otherwise dispose of such Shares (including selling them and paying out the proceeds to Mr Hadley Dean or transferring them to another entity specified by Mr Hadley Dean) provided that such instruction shall not be given with an effect occurring earlier than on the Release Date; or 15

16 release and transfer them back to the Company in case of specified in Clause 7.2(b); and will collect the dividend on such Shares and reinvest collected money by purchasing, to the extent this purchase will not violate any applicable securities laws or stock exchange or other regulatory requirements, additional Shares on the JSE to be released to Mr Hadley Dean on the Release Date along with the other Shares If the Deposit Agreement is not concluded within 6 (six) weeks from the date of the Resolution, the ownership of the Shares will be transferred directly to Mr Hadley Dean (or its Affiliate, pursuant to Clause 3.5) on the respective Vesting Dates and this Clause 3.7 shall expire For avoidance of doubt, in the case where the Shares are transferred to the Depositary, Mr Hadley Dean will only become entitled to the Shares at the Release Date.. 4. Further delegation and administration of LTI Plan 4.1.The Board of Directors shall be fully authorized and obligated to administrate the LTI Plan and shall provide for its proper implementation. 4.2.In all matters not expressly regulated herein, the decisions on behalf of the Company shall be taken by the Board of Directors and the Board of Directors is hereby fully authorized and empowered to take such decision. The Board of Directors is further obligated and authorized to adopt all such acts and measures that are, in the reasonable opinion of the Board of Directors, necessary or useful to fully implement the LTI Plan and its goals. For the avoidance of any doubts, all Shares granted within the LTI Plan are granted under the Resolution. 16

17 4.3.In cases where the Board of Directors (as a whole, i.e. executive directors and non-executive directors acting together) votes over any resolution in relation to a Member of Key Personnel, who is at the same time a Member of the Board of Directors, or in relation to his or her Affiliate, such Member of Key Personnel shall withhold from voting in and participation in the decision-making process of the Board of Directors while taking such resolution by the Board of Directors in accordance with Dutch law. 4.4.The Company is obligated to acquire on the JSE, LuxSE or otherwise, Shares in adequate amounts for the purpose of transferring them to the Members of Key Personnel. In order to do so, the Company undertakes, once a year (or otherwise as required by law),to obtain the necessary resolution(s) of the shareholders meeting of the Company authorizing the Company to buy its own Shares for the purpose of transferring them to the Members of Key Personnel pursuant to the LTI Plan. For the sake of clarity, the Company warrants that it will have the necessary Shares on each Vesting Date so to transfer them to the Members of Key Personnel and obtaining the above resolutions is the obligation and the risk that the Company hereby undertakes, i.e. in case where such resolutions are not adopted (nor alternatively New Shares are issued as provided by Clause 4.6), resulting in the Company not being able to fulfil its obligations hereunder, the Company may not use it as an excuse or any reason to deny its liability and it shall be treated as the Company s failure to satisfy the Company s obligations resulting from the LTI Plan (and further Clause11.2 shall apply). Such acquisition of Shares by the Company shall not take place during a prohibited period as defined by the JSE Listings Requirements, subject to the further provisions of the JSE Listings Requirements. LR14.1(f) & 14.9(c) LR14.9(e) LR14.9(e), (f) 4.5.The rolling over of shares (which refers to the arrangement whereby Shares which have already been granted to Members of Key Personnel in terms of the LTI Plan subsequently revert back and are again included in the number referred to in Clause 5.3) is prohibited. LR

18 4.6.If the Company as the result of lack of a respective shareholders resolution or otherwise - fails to acquire the sufficient number of Shares, the Company may in lieu transfer, to the Members of Key Personnel, New Shares. In such case, New Shares will be offered to the Members of Key Personnel for the legally lowest price and, in addition, the Company shall at the same time transfer to a Member of Key Personnel a monetary bonus equal to the price that such Member of Key Personnel should pay in consideration for New Shares grossed up by the amount of tax and other contributions that such Member of Key Personnel may be obligated to pay in respective jurisdictions in consideration for such monetary bonus. For the sake of clarity, the economic effect should be that the New Shares are transferred free of charge so both the costs of the price for such New Shares as well as costs of associated income tax and other contributions (that may apply to such Member of Key Personnel in respective jurisdictions) shall be covered and reimbursed by the Company. LR14.1(d)(i), 14.1(d)(ii) & 14.1(d)(iii) 4.7.The Company warrants that Shares transferred by the Company to a Member of Key Personnel shall be tradable (subject to Lock-up Period as provided for in Clause 6) and liquid on the JSE or LuxSE, so they may be sold in the normal course of stock exchange operations (liquid stock), unless a Member of Key Personnel expressly agrees otherwise in writing. The Shares shall enjoy pari passu all corporate rights and privileges, in particular the voting, dividend, transfer and other rights (subject to Clause 6), including those arising on a liquidation of the Company. LR14.1(e) 5. Subject matter and granting of Shares to Members of Key Personnel 5.1.The Members of Key Personnel are granted Shares by the Company upon the terms and conditions specified hereunder. 18

19 5.2.The Shares are granted free of charge and shall be transferred, also free of charge, to the Members of Key Personnel on Vesting Dates and in the numbers (Tranches) resulting from the formula set out in Schedule The whole maximum annual number of Shares, that is hereunder granted to all Members of the Key Personnel based on the Resolution, is 1,850,000 (one million eight hundred and fifty thousand) Shares annually ( Total Annual Maximum Number of Granted Shares ). Point 3 of Schedule 3 includes the whole maximum annual number of Shares [I(s)] granted to each of the Members of Key Personnel. The whole maximum number of Shares that may be utilised for the purpose of this LTI Plan (for the entire period of its duration) is 18,500,000 (eighteen million five hundred thousand shares).a fixed maximum number of Shares for each Member of Key Personnel to be transferred during the total duration of LTI Plan (10 years) is specified in Point 3 of Schedule 3 [TOTAL I(s)]. 5.4.In terms of the Resolution, each Member of Key Personnel was granted the Shares in the number specified by the formula set in Schedule 3. The exact number of Shares to be transferred to each Member of Key Personnel shall be calculated pursuant to such formula set out in Schedule 3 taking the scope of accomplishment of the Loyalty Target and Performance Targets, and the Shares will be transferred on Vesting Dates and in Tranches as further specified in Schedule 3 and Schedule 4. The Shares shall be transferred in accordance with the rules and requirements of the JSE or LuxSE and/or in any other manner that is legally required for the proper transfer of Shares from the Company to a Member of Key Personnel. The Company shall take all acts necessary to make such transfer effective, valid and in full compliance with law and this LTI Plan. 5.5.For the sake of clarity, the number of Shares granted under the LTI Plan is fixed, agreed and specified pursuant to the formula set out in 19 LR14.1(d)(i), 14.1(d)(ii) & 14.1(d)(iii) LR14.1(b) LR14.1(c) LR14.1(f) LR14.1(f)

20 Schedule 3 (but subject to adjustments specified in Clauses 5.6to 5.8), and it is the sole result of accomplishment of the Loyalty Target and Performance Targets (and mathematical calculations and objective parameters set out in Schedule 3), and shall not be dependent on any further decision and/or discretion of the Board of Directors or decisions of other body of the Company. In particular, the Company shall unconditionally and irrevocably transfer to such Member of Key Personnel the number of Shares corresponding to the formula set out in Schedule 3 and no other requirements should be met. The transferred Shares shall be subject to limitation in disposal until the Lock-up Period passes as specified in Clause In any case of lowering the nominal value of Shares, dividing existing shares or increasing the number of shares while maintaining the current stock capital or alike act (so called: stock split ), the number of Shares to be transferred to a Member of Key Personnel (as specified in LTI Plan) shall be adjusted i.e. shall be increased respectively, so such stock split shall have no negative effect on economic benefits of Members of Key Personnel and a Member of Key Personnel shall be entitled to the same proportion of equity capital as that to which he was previously entitled. 5.7.The Company warrants that this LTI Plan shall survive any transformation, merger, spin-off or other alike corporate action and any such corporate action shall have no negative effect on economic benefits of Members of Key Personnel accrued prior to, or to be accrued after, such corporate action. 5.8.Subject to Clause 5.9, in the event of a capitalisation issue or any alike event, the Company shall transfer to the Member of Key Personnel, free of charge, such additional number of Shares that a Member of Key Personnel shall be entitled to the same proportion of equity capital as that to which he was previously entitled. LR14.3(a) LR14.1(g) LR14.3(b) 20

21 5.9.The issue of Shares as consideration for an acquisition, the issue of securities for cash and the issue of equity securities for a vendor consideration placing will not be regarded as a circumstance requiring adjustment The Company s auditor or other independent advisers acceptable to the JSE must confirm to the JSE, in writing, that any adjustments made in terms of Clauses 5.6 to 5.8 are in accordance with the provisions of the LTI Plan. Such written confirmation must be provided to the JSE at the time that any such adjustment is finalised Any adjustment made in accordance with Clauses 5.6 to 5.8 shall be disclosed in the Company s annual financial statements in the year during which the adjustment is made Loyalty Shares or Performance Shares which are not subsequently issued to the Member of Key Personnel, for example as a result of forfeiture, must revert back to the LTI Plan The Company shall disclose in its annual financial statements such disclosures as may be required in terms of the JSE Listings Requirements, including the number of securities that may be utilised for purposes of LTI Plan at the beginning of the financial year, changes in such number during the accounting period and the balance of securities available for utilisation for the purposes of the scheme at the end of the financial year and such other disclosure requirements of any stock exchange on which the Company is listed Shares held by the Company (which have been acquired by the Company for the purpose of this LTI Plan and which have not yet been transferred to Members of Key Personnel pursuant to the terms and conditions specified herein) will not have their votes at general/annual general meetings taken into account for the purposes of resolutions proposed in terms of the JSE Listings Requirements. Such Shares will also not be taken into account for purposes of LR14.3(c) LR14.3(d) LR14.3(e) LR14.3(f) LR14.8 LR

22 determining categorisations, as detailed in Section 9 of the JSE Listings Requirements as well as resulting from Dutch law and Company s articles of association. 6. Lock-up period 6.1.Subject to Clause 7.5 and Clause 6.4, within 30 (thirty) months from the end of each Reference Period(the Lock-up Period ), a Member of Key Personnel, shall not sell, or otherwise transfer, or put any Encumbrance on Shares that were transferred to such Member of Key Personnel on the Vesting Date linked with such Reference Period (i.e. Tranche transferred on the earliest Vesting Date occurring after the end of a given Reference Period, as illustrated by Schedule 4), unless the Board of Directors of the Company consents to it. As an illustrative example, with regards to the Shares to be transferred on the Second Vesting Date (i.e. on the first Business Day of July 2018) the Lock-up Period shall end on the first Business Day of July 2020, with regards to Shares to be transferred on the Third Vesting Date (i.e. on the first Business Day of July 2019) the Lock-up Period shall end on the first Business Day of July 2021, etc. 6.2.For the avoidance of doubts, (i) any transfer, as the result of death of a Member of Key Personnel, to its legal successors or (ii) the transfer pursuant to Clause 3.6, shall not be deemed as a transfer or any other act encompassed by the scope of the prohibition set out in Clause6.1 above. LR14.9(b) LR14.9(b) 6.3.In case where a Member of Key Personnel breached Clause 6.1 the Company may claim a contractual penalty equal to the product of (x) 50% and (y) the number of Restricted Shares with regards to which a breach took place and (z) the closing price per Share quoted on JSE on the day when a breach occurred. A Member of Key Personnel shall be released from the payment of the penalty when he or she, without undue delay following the receipt of respective claim from the Company, cures such breach (e.g. in case of encumbrance, he or 22

23 she will respectively cause that such encumbrance is released, in case of sale in breach, he or she will repurchase the adequate number of Shares, etc.). Prior to making the claim, as stipulated in the preceding sentence, the Company should inform in writing a Member of Key Personnel of any such suspected conduct giving reasonable details so to allow a Member of Key Personnel either to explain that such conduct is in line with the Clause 6.1 or to cure it as set out in the preceding sentence. 6.4.In the case where a transfer of Shares pursuant to Clause 5.1 results in a Member of Key Personnel and/or its Affiliate being liable for any taxation in any jurisdiction (in particular such as income tax), and unless costs of such tax are covered by the Company pursuant to provisions of LTI Plan, such Member of Key Personnel and/or its Affiliate may sell such number of Restricted Shares (and such Restricted Shares are thus, by the virtue of this provision, released from the prohibition set out in this Clause 6) so to fully finance, with the price received from such sale, the payment of such taxation. 7. Final Disengagement of Member of Key Personnel and Change of Control 7.1.In case where a Member of Key Personnel is Finally Disengaged for any reason: -it does not influence the Shares that were already transferred, or were to be transferred, to him or her (i.e. Shares transferred, or to be transferred, on Vesting Dates occurring prior to the date of Final Disengagement), in particular such Member of Key Personnel is not obligated to transfer back any Shares (and such Shares shall not be subject to any reduction), subject to Restricted Shares in case of Fraud; and - it may influence the Shares to be transferred to him or her on the earliest Vesting Date occurring after the end of the Reference Period in which such Final Disengagement has occurred (depending on a status of Good Leaver, Bad Leaver or Fraud). LR14.1(h) LR14.9(b) 23

24 7.2.In case of a Fraud occurring during the Reference Period: a Member of Key Personnel: a) will be given no Shares on the earliest Vesting Date occurring after the end of such Reference Period; b) in addition, he/she will be obligated to transfer back to the Company all Restricted Shares free of charge. 7.3.In case of a Bad Leaver event occurring during the Reference Period: a Member of Key Personnel will be given no Shares on the earliest Vesting Date occurring after the end of such Reference Period. 7.4.In case of a Good Leaver event occurring during the Reference Period: a Member of Key Personnel will be (on the earliest Vesting Date occurring after the end of such Reference Period): LR14.9(b) a) given a part of Loyalty Shares pro-rata to the actual period of engagement, for example if a Member of Key Personnel was engaged for 50% of the Reference Period he/she will receive 50% of Loyalty Shares, i.e. 50% of 25% of i(s) = 12.5% of i(s); b) given a part of Performance Shares pro-rata to the period of engagement and the final results of the Reference Period, for example if a Member of Key Personnel was engaged for 50% of the Reference Period he/she will receive 50% of Performance Shares that he/she would otherwise (i.e. if the engagement was not terminated) be given (i.e. if, for example, basing on the results he or she would be given 40% of Shares he/she will receive only 20% of such Shares). For the sake of clarity, in such case, the Lock-up Period remains unchanged. 7.5.In case of a Change of Control event occurring during any time when a Member of Key Personnel remains Engaged (and in case of Good Leaver also after such period as set out by Clause 7.6. below): LR14.1(g) 24

25 a) Member of Key Personnel will be immediately (i.e. within 5 Business Days from the day when such Change of Control event occurs) given 100% of Loyalty Shares and Performance Shares related to the Reference Period in which such Change of Control occurs (notwithstanding what results are/will be); b) The Lock-up Period with respect to all Restricted Shares ends on 31stDecember of the year in which such Change of Control has occurred (or any earlier date that the Nomination and Remuneration Committee of the Company may indicate) In case where a Member of Key Personnel is a Good Leaver and Change of Control event occurs after his/her Final Disengagement has occurred (but still in the same Reference Period in which such Final Disengagements has occurred), the provisions of Clause 7.5 shall still apply to such Member of Key Personnel. Otherwise (i.e. Change of Control occurs in the next Reference Period to the Reference Period in which such Final Disengagement has occurred) the provisions of Clause 7.4 shall apply. 8. Forum and law 8.1.The parties agree that, taken into consideration that the motivation program concerns activities of the Company related to its affairs on the territory of Poland (carried by the Company itself and/or through Company s Affiliates as the case may be), any dispute arising out of or related to the LTI Plan shall be finally settled by the arbitral tribunal at the Lewiatan Court of Arbitration in Warsaw, Poland in accordance with the Rules of that Court in effect on the date of commencement of the proceedings, in one instance proceeding. The place of arbitration shall be Warsaw, Poland. The language of proceedings shall be English, unless parties to such proceedings decide otherwise. The substantive law shall be Polish law, provided that the arbitration tribunal must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the 25

26 principles of practical business. Furthermore, in case where one party proves that another party has breached its obligation under these LTI Plan but, at the same time, is not reasonably capable of proving exact amount of damage suffered as the result of such breach, the arbitration tribunal shall grant the monetary award for the benefit of the affected Party on the ex aequo et bono basis. 9. Confidentiality 9.1.For the purposes of this Clause 9 Information means all information of a confidential nature pertaining to this LTI Plan. 9.2.Each party shall keep the Information confidential for a period until LTI Plan is terminated pursuant to Clause 10.1 as well as for additional period of 5 (five) years following such termination date. 9.3.Each party may disclose the Information to its employees, Affiliates and advisors as the case may be (the Personnel ) to the extent that it is necessary for the purposes of this Agreement. Each Party guarantees that its Personnel will follow rules of confidentiality stipulated hereunder. 9.4.The obligations contained in Clauses 9.1 to 9.3 do not apply to any Information which: - is on the date of the LTI Plan or at any time after the date of this LTI Plan fully in the public domain other than through breach of this Agreement by the receiving party or any recipient; - lawfully comes into the possession of the receiving party from a third party; or - is legally required to be provided to any authorities (including administrative), courts (including arbitration), governmental agencies or the stock exchange, etc. 9.5.For the sake of clarity, nothing in this Clause 9 shall hamper or limit any obligations of the Company resulting from listing of Company s shares by JSE or other public listing in other jurisdictions. 26

27 10. Duration 8 DECEMBER 2017 EXTRAORDINARY GENERAL MEETING MATERIALS The LTI Plan has been adopted for the benefit of Members of Key Personnel and shall constitute a firm and irrevocable commitment of the Company towards such Members of Key Personnel. The LTI Plan shall last and be in operation until all and the last Member of the Key Personnel is Finally Disengaged (i.e. there will be no more Members of Key Personnel that are beneficiaries of the LTI Plan) and, before that date, shall not be terminated unless all Members of Key Personnel and the Company agree otherwise. Notwithstanding the above, the LTI Plan shall expire on the first Business Day of July year 2026 (tenth Vesting Date), unless anew resolution is adopted by the Company extending this LTI Plan. Expiry of the LTI Plan is without prejudice to rights of Members of Key Personnel accrued prior to such date of expiry. 11. Breach and remedies In case of a breach of either party s obligations with respect to this LTI Plan, such party shall be liable to the other party pursuant to the general rules of law, subject to this Clause 11 where it provides for specific remedy The Company warrants to the Members of Key Personnel that the Members of Key Personal will obtain all bonuses provided herein, in particular that the Company shall transfer Shares to Members of Key Personnel in respective Tranches on respective Vesting Dates, as provided by Schedule 3. None of the Members of Key Personnel shall be deprived of its rights, privileges and benefits provided hereunder unless such Members of Key Personnel expressly agrees otherwise in writing In cases where for any reasons whatsoever (including a force majeure, political, legal or regulatory event, change of law or its interpretation and/or a case where the Company failed to buy 27

28 adequate number of Shares, including as the result of lack of respective resolutions of the shareholder s meeting as referred to in Clause 4.4, to subsequently transfer them pursuant to the terms and conditions specified hereunder), the Company is not capable and/or does not grant and/or transfer Shares to a Member of Key Personnel, which the Company should grant and/or transfer to such Member of Key Personnel pursuant to terms and conditions of this LTI Plan, a Member of Key Personnel may claim from the Company a monetary award payable in EUR, or any other exchangeable currency, equal to the value of such Shares calculated as average of JSE s closing Share price from 90 trading days preceding the date of the claim for Monetary Award (the Monetary Award ), which Monetary Award shall also include the value of any difference between the income tax and other contributions (including social security/health insurance contributions) due on the Monetary Award in all jurisdictions and the income tax and other contributions that a Member of the Key Personnel would have been obliged to pay in all jurisdictions if he or she receives the Shares (i.e. costs of such tax and other contributions, evoked by the fact that Monetary Award is given in exchange for the Shares, should be covered and reimbursed by the Company) In cases where JSE s closing Share price, preceding the date when the claim is made in accordance with this Clause 11.3, are not available (for example, in case where operations of JSE are frustrated), or the Share price on JSE dropped down due to extraordinary circumstances (including force majeur, political events, change of law or its interpretation) the value of Shares shall be established taken into account last available Share Price for 90 continuous trading days for the period where such extraordinary circumstances were not yet impacting the Share price. In cases where the above would also not be available, and/or a dispute regarding the methodology of evaluation the value of Share, the Valuation Expert should choose the best methodology at its own sole discretion. 12. Non-liquid Shares 28

29 12.1. The Clauses11.3 and 11.4 shall apply mutatis mutandis to cases where Restricted Shares, although they were granted and transferred, ceased to be, during their Lock-up Period, freely tradable, liquid and/or listed on JSE (even when Shares are still listed on LuxSE and/or any other stock exchange) for any reason whatsoever (including a force majeure, political, legal or regulatory event or change of law or its interpretation).in such case a Member of Key Personnel may claim a Monetary Award and the Clause 11.3 (including last sentence) shall respectively apply. Following the receipt of the Monetary Award by a Member of Key Personnel, the Company may claim that the Member of Key Personnel shall transfer back to the Company the Shares which were the basis of paying out of such Monetary Award provided that the Company shall reimburse the Member of Key Personnel with all costs related to such transfer, including tax and other contributions (if any). 13. Valuation Expert In cases of a dispute, or lack of co-operation between the parties, with respect to establishing of monetary value mentioned in Clause11 and/or Clause 12, each party is entitled to hire a Valuation Expert for that purpose, and the opinion of such Valuation Expert shall be binding for the other party, provided that if the other party ( non-concurring party ) provides the party who entrusted the Valuation Expert with issuing the opinion referred to in the preceding sentence ( first party ), but not later than within 30 (thirty) calendar days from the date of receipt of the opinion of Valuation Expert from the first party (and such period shall be final and shall not be subject to any extensions for whatever reasons), with the opinion of another Valuation Expert, contradicting with the opinion presented by the first party, the non-concurring party and the first party shall in good faith and using their best efforts (and possibly with participation of Valuating Experts that they hired) reach an agreement. If such agreement is not reached within 30 29

30 (thirty) days from the date when the first opinion of Valuation Expert was issued, each party may initiate dispute resolution as provided for in Clause