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Exhibit 4.4
OPTION ROLLOVER AND LOCK-UP
AGREEMENT
THIS OPTION ROLLOVER AND LOCK-UP AGREEMENT (the "Agreement") is made as of
May 4, 2000, between XXXXX HOLDINGS PUBLIC LIMITED COMPANY, a public limited
company organized under the laws of Northern Ireland (the "Company"), and Xxxx
Xxxxxxxxx ("Executive").
RECITALS
WHEREAS, Executive is currently employed by Xxxxxx Xxxxxxxx Public
Limited Company ("Warner"); and
WHEREAS, Executive holds options to purchase 30,000 shares of common
stock of Warner (the "WC OPTIONS") pursuant to the Xxxxxx Xxxxxxxx plc
Incentive Share Option Scheme (the "WC OPTION SCHEME"); and
WHEREAS, Executive holds warrants to purchase 210,000 shares of
common stock of Warner, pursuant to certain Warrant Agreements by and
between Executive and Warner (the "WARRANTS"); and
WHEREAS, the Company and Warner have entered into a transaction
agreement pursuant to which the Company will exchange all of the
outstanding securities of Warner for ordinary shares in the Company
pursuant to a scheme of arrangement pursuant to Section 201 of the Irish
Companies Act (the "ACQUISITION");
WHEREAS, pursuant to the terms of the WC Option Scheme and an
Employment Agreement, dated August 1, 1999 by and between Warner and the
Executive upon consummation of the Acquisition, the Executive shall be
fully vested in all WC Options; and
WHEREAS, on February 28, 2000 the Executive entered into an
arrangement with Warner to receive 100,000 options to purchase ordinary
shares of Warner (the "Pending Options"); and
WHEREAS, Executive and the Company have agreed to enter
into an Employment Agreement dated May 4, 2000 (the "EMPLOYMENT
AGREEMENT") by and between the Executive and Xxxxxx Xxxxxxxx,
Inc. ("Xxxxxx Xxxxxxxx U.S."), pursuant to which the Executive
will be employed by Warner U.S. after the Acquisition; and
WHEREAS, the Company and the Executive mutually desire to enter into
this Agreement regarding the exercise and treatment of Executive's WC
Options and the Warrants in connection with the Acquisition and the shares
of the stock to be acquired upon the exercise of the WC Options and the
Warrants.
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NOW, THEREFORE, in consideration of the Employment Agreement and the
mutual covenants and agreements contained herein, the parties agree as
follows:
1. VESTING AND OPTION ROLLOVER.
(a) Executive and the Company hereby agree that upon the Acquisition all
of the Executive's WC Options and Warrants, to the extent not all ready vested,
shall become fully vested and exercisable.
(b) Each WC Option and Warrant which is outstanding and unexercised
immediately prior to the effective time of the Acquisition shall cease to
represent a right to acquire shares of Warner common stock ("WC STOCK") and
shall automatically become the right to purchase the number of shares of Company
common stock ("COMPANY STOCK") into which the shares of WC Stock subject to such
WC Option and/or Warrant would have been converted into at the effective time of
the Acquisition (rounded down to the nearest full number of shares of Company
Stock) for an exercise price equal to the result of dividing the per share
exercise price of such WC Option and/or Warrant by the exchange ratio in the
Acquisition (rounded down to the nearest full cent). Except for the adjustments
provided for in this Section 1 the WC Options shall continue to be governed by,
and be subject to, the terms of the WC Option Scheme and agreements pursuant to
which such WC Options and Warrants were granted.
2. LOCK UP.
The Executive hereby undertakes that from the date of issue until the date
of publication of the interim financial results of the Company for the six month
period ending 31 March 2001, he/she shall not exercise or transfer any of the WC
Options and/or Warrants or any such options or warrants over company stock
issued to the Executive pursuant to section 1 (b) hereof of the Company (the
"RESTRICTED OPTIONS") except with the prior written consent of an independent
majority of the Board of the Company, which such consent will not be
unreasonably withheld or delayed. For this purpose , "dispose" shall include
charging, selling, transferring, pledging, encumbering, assigning or other
similar effect.
Notwithstanding the foregoing, in the event the Executive is terminated
pursuant to sub-sections 4(a), (b), (c), (d), (f)(i) or (g) of his Employment
Agreement prior to the expiry of the aforementioned lock up period, this lock up
provision shall cease to be effective and Executive shall be free to exercise or
transfer all or any of the Restricted Options.
In the event that a Change in Control of Xxxxx occurs prior to the expiry
of this lock-up period, this undertaking shall cease and determine with
immediate effect. For the purposes of this section "Change in Control" shall be
deemed to have occurred if any person (or persons "acting in concert" as defined
in the UK's City Code on Takeovers and Mergers) obtains "control" (as that term
is defined in s.840 of the UK Income and Corporation Taxes Act 1988) of Xxxxx
and that control is unconditional in all respects; but excluding any
reconstruction or amalgamation of Xxxxx.
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3. PENDING OPTIONS.
Executive hereby waives all right to the Pending Options. In consideration
for such waiver, the Company hereby agrees to grant to Executive an option to
purchase ordinary shares of the Company, as set forth in the Employment
Agreement.
4. NO CONTRADICTION AND COMPLETE AGREEMENT.
No action taken by the Board of Warner or the compensation committee of that
Board on or after the date of this Agreement in relation to the WC Option Scheme
shall apply to the WC Options, if such action would otherwise contradict with
the provisions of this Agreement. This Agreement, together with any other
agreements referred to herein, constitutes the complete agreement and
understanding among the parties and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
5. NO STRICT CONSTRUCTION. The language used in this Agreement shall be deemed
to be the language chosen by the parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against any party.
6. COUNTERPARTS. This Agreement may be executed in separate counterparts, each
of which is deemed to be an original and all of which taken together constitute
one and the same agreement.
7. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive, the Company and their respective
heirs, successors and assigns, except that Executive may not assign his rights
or delegate his obligations hereunder without the prior written consent of the
Company. The Company will require any successor to all or substantially all of
the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
8. CHOICE OF LAW. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of New Jersey without giving effect to any choice of law or
conflict of law rules or provisions that would cause the application of the laws
of any jurisdiction other than the State of New Jersey.
9. AMENDMENT AND WAIVER. The provisions of this Agreement may be amended or
waived only with the prior written consent of the Company and Executive, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
10. TERMINATION. The Agreement shall automatically terminate in the event the
Transaction Agreement is terminated in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
XXXXX HOLDINGS PLC
[XXXXXXXX XXXXXXX] SIGNED
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NAME: XXXXXXXX XXXXXXX
TITLE: FINANCE DIRECTOR
EXECUTIVE:
[XXXX X. XXXXXXXXX] SIGNED
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XXXX XXXXXXXXX
