Pro-forma Call Option - C&C Group

Pro-forma Call Option - C&C Group

Pro-forma Call Option Deed DATED (1) KLEINWORT BENSON (GUERNSEY) TRUSTEES LIMITED and (2) [Participant] and (3) C & C Group PLC CALL OPTION DEED in ...

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Pro-forma Call Option Deed DATED

(1) KLEINWORT BENSON (GUERNSEY) TRUSTEES LIMITED and (2) [Participant] and (3) C & C Group PLC

CALL OPTION DEED in relation to an interest in Plan Shares in the Company held by the Participant

THIS CALL OPTION DEED is made on [

] 200[]

BETWEEN: (1)

Kleinwort Benson (Guernsey) Trustees Limited whose registered office is situated at Westbourne, The Grange, St. Peter Port, Guernsey GY1 3BG (“the Trustees”) in their capacity as trustee of the C&C Employee Trust;

(2)

[Name of Participant] of [Address of Participant] (“the Participant”); and

(3)

C & C Group PLC (registered in Ireland No. 383466) (“the Company”).

PRELIMINARY: (A)

On [Date] the Trustees, the Participant and the Company entered into a Joint Ownership Agreement (“the Joint Ownership Agreement”)for the acquisition by the Participant and the Trustees of the Plan Shares.

(B)

Under the terms of the Plan and the Joint Ownership Agreement, the Participant shall forfeit some or all of his interest to the extent that certain conditions have not been met. Accordingly, the Participant has agreed to grant to the Trustees the right to acquire some or all of the Participant’s Interest in specified circumstances as set out in this Call Option Deed.

NOW THIS CALL OPTION DEED WITNESSES AND IT IS HEREBY AGREED as follows: 1.

DEFINITIONS

[1.1. In this Call Option Deed, "Market Value" of a Plan Share for any Dealing Day is whichever amount ((i), (ii) or (iii) below) is appropriate for such Dealing Day, as determined from information published in the Irish Stock Exchange Daily Official List reporting the business done on such Dealing Day: (i)

if there shall be more than one dealing reported for the day, the average of the prices at which such dealings took place; or

(ii)

if there shall be only one dealing reported for the day, the price at which such dealing took place; or

(iii)

if there shall not be any dealing reported for the day, the average of the closing bid and offer prices for the day:

and if there shall be only a bid (but not an offer) price or an offer (but not a bid) price reported, or if there shall not be any bid or offer price reported, for any particular day, then that day shall not be treated as a Dealing Day for the purposes of Clause 3; provided that if for any reason it shall be impossible or impracticable to determine an appropriate amount for any Dealing Day on the above basis, the Board may, having taken into account the prices at which recent dealings in such shares have taken place, determine an amount for such day; and if the means of providing the foregoing information as to

dealings and prices by reference to which the Market Value is to be determined is altered or is replaced by some other means, then the Market Value shall be determined on the basis of the equivalent information published by the relevant authority in relation to dealings on the Irish Stock Exchange or its equivalent.]1 1.2. Unless otherwise defined in this Call Option Deed, words and expressions defined in the Joint Ownership Agreement, the Rules of the Plan or the Trust Deed shall have the same meaning herein. 1.3. In this Call Option Deed, unless otherwise specified:

2.

1.3.1.

the contents and clause headings are inserted for ease of reference only and do not affect their interpretation;

1.3.2.

a reference to a clause is a reference to a clause in this Agreement;

1.3.3.

a reference to writing includes any mode of reproducing words in a legible form and reduced to paper;

1.3.4.

the singular includes the plural and vice-versa and the masculine includes the feminine;

1.3.5.

a reference to a statutory provision includes any statutory modification, amendment or re-enactment thereof.

GRANT OF THE CALL OPTION

2.1. The Participant hereby grants the Trustees the Call Option subject to and in accordance with the terms and conditions of this Call Option Deed. 2.2. The Trustees may only transfer, assign or charge the Call Option with the prior written consent of the Company. 3.

THE PERFORMANCE CONDITION

The Performance Condition [is that the Market Value of a Plan Share is greater than €2.50 for at least twenty Dealing Days in a consecutive period of forty Dealing Days between the Acquisition Date and the fifth anniversary of the Acquisition Date. The Performance Condition applies to half of the Participant’s Plan Shares]2.

1

Under the rules of the Plan the Call Option Deed with a participant must state the vesting date(s) in respect of the participant’s

interest (and the relevant vesting proportions) as well as the performance and other conditions for the vesting of the participant’s interest. The square bracketed provision relates to the vesting schedule and the share price target performance condition for the interests to be acquired by the new management team if the Plan is approved by shareholders. The remuneration Committee will set the same for more challenging conditions to subsequent interests which may be acquired under the Plan by other participants. 2

Under the rules of the Plan the Call Option Deed with a participant must state the vesting date(s) in respect of the participant’s

interest (and the relevant vesting proportions) as well as the performance and other conditions for the vesting of the participant’s interest. The square bracketed provision relates to the vesting schedule and the share price target performance

4.

VESTING OF THE PARTICIPANT’S INTEREST

4.1. Subject to Clause 4.2, the Participant’s Interest in the Plan Shares shall Vest [in six equal parts as follows: Amount

Vesting Date

One sixth

The first anniversary of the Acquisition Date

One sixth

The second anniversary of the Acquisition Date

One sixth

The third anniversary of the Acquisition Date

One sixth

Conditional on achievement of the Performance Condition and on the later of the achievement of the Performance Condition and the first anniversary of the Acquisition Date

One sixth

Conditional on achievement of the Performance Condition and on the later of the achievement of the Performance Condition and the second anniversary of the Acquisition Date

One sixth

Conditional on achievement of the Performance Condition and on the later of the achievement of the Performance Condition and the third anniversary of the Acquisition Date

4.2. If any person obtains Control of the Company as a result of making a general offer to acquire shares in the Company (an “offer” including for these purposes a takeover by scheme of arrangement) the Vesting provisions set out in Clause 6.2 shall not apply and instead the Participant’s Interest in up to one half of the Plan Shares (the “Relevant Plan Shares”) shall Vest as follows: 4.2.1.

if the offer is made before 10 February 2009 and subsequently becomes unconditional in all respects, one third of the Relevant Plan Shares shall Vest on the offer becoming unconditional;

condition for the interests to be acquired by the new management team if the Plan is approved by shareholders. The remuneration Committee will set the same for more challenging conditions to subsequent interests which may be acquired under the Plan by other participants.

4.2.2.

if the offer is made on or after 10 February 2009 but before 10 November 2009 and subsequently becomes unconditional in all respects, two thirds of the Relevant Plan Shares shall Vest on the offer becoming unconditional; and

4.2.3.

if the offer is made on or after 10 November 2009 and subsequently becomes unconditional in all respects, all of the Relevant Plan Shares shall Vest on the offer becoming unconditional;

and the Participant’s Interest in the other half of the Plan Shares shall vest as follows: One third

Conditional on achievement of the Performance Condition and on the later of the achievement of the Performance Condition and the first anniversary of the Acquisition Date

One third

Conditional on achievement of the Performance Condition and on the later of the achievement of the Performance Condition and the second anniversary of the Acquisition Date

One third

Conditional on achievement of the Performance Condition and on the later of the achievement of the Performance Condition and the third anniversary of the Acquisition Date

4.3. On the offer becoming unconditional in all respects, the Trustees shall exercise the Call Option in respect of the Participant’s Interest in any Plan Shares which is Unvested at that time and no price shall be payable]3. 5.

GOOD OR BAD LEAVER

5.1. The Participant will be treated as a Good Leaver if the Participant

3

5.1.1.

dies; or

5.1.2.

ceases to be in Relevant Employment at the request of the Board of the Company for any reason other than cause; or

Under the rules of the Plan the Call Option Deed with a participant must state the vesting date(s) in respect of the participant’s

interest (and the relevant vesting proportions) as well as the performance and other conditions for the vesting of the participant’s interest. The square bracketed provision relates to the vesting schedule and the share price target performance condition for the interests to be acquired by the new management team if the Plan is approved by shareholders. The remuneration Committee will set the same for more challenging conditions to subsequent interests which may be acquired under the Plan by other participants.

5.1.3.

terminates employment at his own request because of ill health.

5.2. The Participant will be treated as a Bad Leaver if the Participant terminates employment for any other reason. 6.

RIGHTS OF EXERCISE OF THE CALL OPTION

6.1. If the Participant ceases to be in Relevant Employment as a Bad Leaver, the Trustees shall exercise the Call Option forthwith upon cessation of Relevant Employment and purchase the Participant’s Interest for the price set out in Clause 6.2. 6.2. The price payable to a Bad Leaver for the Vested part of the Participant’s Interest shall be the lower of (a) the market value of the Vested part of the Participant’s Interest on the date of cessation of Relevant Employment, as determined by the Trustee acting in good faith and (b) the Entry Price, reduced proportionately if any part of the Participant’s Interest has already been sold pursuant to Clause Error! Reference source not found. of the Joint Ownership Agreement. No price shall be payable for any Unvested part of the Participant’s Interest. 6.3. If the Participant is a Good Leaver, for any reason other than death, the Participant may elect to retain any part of his Interest which has Vested at the date of cessation of Relevant Employment in which case the Trustees shall not exercise the Call Option in relation to that part of the Participant’s Interest. The Participant must within five Dealing Days after cessation of Relevant Employment notify the Trustees in writing that he has so elected. If the Participant does not so notify the Trustees or does not so elect, the Trustees shall exercise the Call Option and the price payable shall be the Entry Price, reduced proportionately if any part of the Participant’s Interest has already been sold pursuant to Clause Error! Reference source not found. of the Joint Ownership Agreement. The Trustees shall exercise the Call Option in relation to any part of the Participant’s Interest which has not Vested at the date of cessation of Relevant Employment and the price payable shall be the Entry Price (reduced proportionately if any part of the Participant’s Interest has already been sold pursuant to Clause 8 of the Joint Ownership Agreement). 6.4. If the Participant dies, the provisions of Clause 6.3 apply save that the Participant’s personal representatives have twelve months following the Participant’s death within which to elect. For the avoidance of doubt, no further part of his Interest shall Vest after the date of death. 6.5. For the purpose of this Call Option Deed, the Participant shall not be treated as ceasing to be in Relevant Employment until he no longer holds any office or employment with any Group Company. 6.6. If the Trustees determine that the Performance Condition has not been satisfied either in whole or in part in relation to the Participant’s Interest and can no longer be satisfied either in whole or in part, the Trustees shall exercise the Call Option in respect of that part of the Participant’s Interest and no price shall be payable. Notwithstanding any other provision in this Call Option Deed,

the Trustees shall exercise the Call Option in respect of any part of the Participant’s Interest that has not Vested on or before the date falling seven years after the Acquisition Date and no price shall be payable. 6.7

Should the Participant breach Rule 2.8 of the Plan (Interests non-transferable), the Trustees shall exercise the Call Option in respect of the Participant’s Interest and no price shall be payable.

7.

POWER OF ATTORNEY

7.1. The Participant irrevocably appoints the Trustees to be his lawful attorney to perform or procure the performance of all or any of the obligations owed by him to the Trustees under this Call Option Deed including for that purpose to sign or execute in the Participant's name and on his behalf any transfer, document or deed and to do anything else reasonably necessary so that those obligations can be performed and to act for the Participant in every respect as fully and effectually as the Participant could act in person. The Participant agrees that in acting under this Clause the Trustees may act by any person acting pursuant to authority conferred by the Trustees. SIGNED by the parties on the date first mentioned above.

The COMMON SEAL of KLEINWORT BENSON (GUERNSEY) TRUSTEES LIMITED was hereunto affixed in the presence of::

Authorised Signatory

Authorised Signatory SIGNED by [Participant] In the presence of:

SIGNED by [ for and on behalf of C & C Group PLC

]

acting by a director and its secretary/two directors:

Director

Director/Secretary