Management Incentive. (a) Unless Incentive Shares have previously been delivered pursuant to Section 2(b) below, immediately prior to the consummation of a Sale Transaction, in consideration of the value Xxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx the Incentive Shares. In the event that at any time following consummation of such Sale Transaction, there shall be any reduction of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, Xxxxxx shall pay to each of Xxxxx and, if applicable, Xxxxxxx, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and Xxxxxx’x Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall Xxxxxx be required to pay an aggregate amount that would result in Xxxxxx receiving less than its Trued-up Amount. (b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which Xxxxx and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the Xxxxx Ownership Percentage is less than 10% of the initial Xxxxx Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance with Section 2(c) below and, promptly following the determination of such Equity Value, in consideration of the value Xxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx the Incentive Shares, if any; provided, however, that (i) in no event shall the Management Stockholders have the right to request such determination following the occurrence of any Sale Transaction and (ii) the Management Stockholders shall not have the right to request such determination more than once. The Management Stockholders shall make such request by providing written notice thereof to the Company, such notice to by signed by each Management Stockholder. (c) If the Management Stockholders shall have requested a determination of the Equity Value pursuant to Section 2(b) above, the Equity Value shall be determined as follows: (i) During the ten-day period following the date on which such determination is requested, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall each submit to the other such party’s respective proposal as to the Equity Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Equity Value shall be equal to the average of such proposals. (ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Equity Value Appraiser”). In the event that such parties fail to jointly select the Appraiser within such period, then at the request of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, the American Arbitration Association shall provide them with a list of at least five Equity Value Appraiser candidates and each of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, shall be allowed to strike a number of names from the list and rank the remaining Equity Value Appraiser candidates in order of acceptance. The highest ranking Equity Value Appraiser candidate who remains on the list shall serve as the Appraiser. The Equity Value Appraiser shall be requested to make its determination within a period of 30 days after the deadline for submissions to be made by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, pursuant to Section 3(c)(iii), or as soon as practicable thereafter. (iii) Within five Business Days of the appointment of the Appraiser, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall submit to the Equity Value Appraiser (A) its proposed determination of the Equity Value provided to the other party pursuant to Section 2(c)(i), (B) a list of factors that it believes to be relevant in the determination of the Equity Value, and (C) the reasons for that proposed value. In addition, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall at the same time deliver to the other a copy of any submission or information supplied by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, to the Equity Value Appraiser. (iv) The Equity Value Appraiser shall then make its own determination (having requested such further information from the Management Stockholders, Xxxxx and/or the Company as it shall require) of the Equity Value. (v) The Equity Value Appraiser shall certify to each of the Management Stockholders, Xxxxx and the Company (A) that, having considered the respective submissions of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, it has made its own determination of the Equity Value according to the principles of this Agreement and (B) the proposed value of which of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, it determines to be closer to the Equity Value. The value proposed by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, so certified by the Equity Value Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Equity Value for purposes of Section 2(b) above. (vi) The fees and expenses of the Equity Value Appraiser shall be paid equally by the Management Stockholders, on the one hand, or Xxxxx, on the other hand. The Equity Value Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Management Stockholders, on the one hand, and Xxxxx, on the other hand, in the absence of manifest error. The Equity Value Appraiser shall have no liability to any of the Management Stockholders, Xxxxx or the Company in respect of its determination.
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Management Incentive. (a) Unless Incentive Shares have previously been delivered pursuant to Section 2(b) below, immediately prior to the consummation of a Sale Transaction, in consideration of the value Xxxxxx Xxxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx Xxxxxxx the Incentive Shares. In the event that at any time following consummation of such Sale Transaction, there shall be any reduction of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, Xxxxxx Xxxxxxx shall pay to each of Xxxxx Xxxx and, if applicable, XxxxxxxFoxtrot, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and Xxxxxx’x Raymond’s Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall Xxxxxx Xxxxxxx be required to pay an aggregate amount that would result in Xxxxxx Xxxxxxx receiving less than its Trued-up Amount.
(b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which Xxxxx Xxxx and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the Xxxxx Xxxx Ownership Percentage is less than 10% of the initial Xxxxx Xxxx Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance with Section 2(c) below and, promptly following the determination of such Equity Value, in consideration of the value Xxxxxx Xxxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx Xxxxxxx the Incentive Shares, if any; provided, however, that (i) in no event shall the Management Stockholders have the right to request such determination following the occurrence of any Sale Transaction and (ii) the Management Stockholders shall not have the right to request such determination more than once. The Management Stockholders shall make such request by providing written notice thereof to the Company, such notice to by signed by each Management Stockholder.
(c) If the Management Stockholders shall have requested a determination of the Equity Value pursuant to Section 2(b) above, the Equity Value shall be determined as follows:
(i) During the ten-day period following the date on which such determination is requested, the Management Stockholders, on the one hand, and XxxxxXxxx, on the other, shall each submit to the other such party’s respective proposal as to the Equity Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Equity Value shall be equal to the average of such proposals.
(ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, the Management Stockholders, on the one hand, and XxxxxXxxx, on the other, shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Equity Value Appraiser”). In the event that such parties fail to jointly select the Appraiser within such period, then at the request of the Management Stockholders, on the one hand, or XxxxxXxxx, on the other hand, the American Arbitration Association shall provide them with a list of at least five Equity Value Appraiser candidates and each of the Management Stockholders, on the one hand, or XxxxxXxxx, on the other hand, shall be allowed to strike a number of names from the list and rank the remaining Equity Value Appraiser candidates in order of acceptance. The highest ranking Equity Value Appraiser candidate who remains on the list shall serve as the Appraiser. The Equity Value Appraiser shall be requested to make its determination within a period of 30 days after the deadline for submissions to be made by the Management Stockholders, on the one hand, or XxxxxXxxx, on the other hand, pursuant to Section 3(c)(iii), or as soon as practicable thereafter.
(iii) Within five Business Days of the appointment of the Appraiser, each of the Management Stockholders, on the one hand, and XxxxxXxxx, on the other hand, shall submit to the Equity Value Appraiser (A) its proposed determination of the Equity Value provided to the other party pursuant to Section 2(c)(i), (B) a list of factors that it believes to be relevant in the determination of the Equity Value, and (C) the reasons for that proposed value. In addition, each of the Management Stockholders, on the one hand, and XxxxxXxxx, on the other hand, shall at the same time deliver to the other a copy of any submission or information supplied by the Management Stockholders, on the one hand, or XxxxxXxxx, on the other hand, to the Equity Value Appraiser.
(iv) The Equity Value Appraiser shall then make its own determination (having requested such further information from the Management Stockholders, Xxxxx Xxxx and/or the Company as it shall require) of the Equity Value.
(v) The Equity Value Appraiser shall certify to each of the Management Stockholders, Xxxxx Xxxx and the Company (A) that, having considered the respective submissions of the Management Stockholders, on the one hand, and XxxxxXxxx, on the other hand, it has made its own determination of the Equity Value according to the principles of this Agreement and (B) the proposed value of which of the Management Stockholders, on the one hand, or XxxxxXxxx, on the other hand, it determines to be closer to the Equity Value. The value proposed by the Management Stockholders, on the one hand, or XxxxxXxxx, on the other hand, so certified by the Equity Value Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Equity Value for purposes of Section 2(b) above.
(vi) The fees and expenses of the Equity Value Appraiser shall be paid equally by the Management Stockholders, on the one hand, or XxxxxXxxx, on the other hand. The Equity Value Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Management Stockholders, on the one hand, and XxxxxXxxx, on the other hand, in the absence of manifest error. The Equity Value Appraiser shall have no liability to any of the Management Stockholders, Xxxxx Xxxx or the Company in respect of its determination.
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Management Incentive. (a) Unless Incentive Shares have previously been delivered pursuant to Section 2(b) below, immediately prior to the consummation of a Sale Transaction, in consideration of the value Xxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx the Incentive Shares. In the event that at any time following consummation of such Sale Transaction, there shall be any reduction of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, Xxxxxx shall pay to each of Xxxxx and, if applicable, Xxxxxxx, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and Xxxxxx’x Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall Xxxxxx be required to pay an aggregate amount that would result in Xxxxxx receiving less than its his Trued-up Amount.
(b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which Xxxxx and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the Xxxxx Ownership Percentage is less than 10% of the initial Xxxxx Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance with Section 2(c) below and, promptly following the determination of such Equity Value, in consideration of the value Xxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx the Incentive Shares, if any; provided, however, that (i) in no event shall the Management Stockholders have the right to request such determination following the occurrence of any Sale Transaction and (ii) the Management Stockholders shall not have the right to request such determination more than once. The Management Stockholders shall make such request by providing written notice thereof to the Company, such notice to by signed by each Management Stockholder.
(c) If the Management Stockholders shall have requested a determination of the Equity Value pursuant to Section 2(b) above, the Equity Value shall be determined as follows:
(i) During the ten-day period following the date on which such determination is requested, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall each submit to the other such party’s respective proposal as to the Equity Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Equity Value shall be equal to the average of such proposals.
(ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Equity Value Appraiser”). In the event that such parties fail to jointly select the Appraiser within such period, then at the request of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, the American Arbitration Association shall provide them with a list of at least five Equity Value Appraiser candidates and each of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, shall be allowed to strike a number of names from the list and rank the remaining Equity Value Appraiser candidates in order of acceptance. The highest ranking Equity Value Appraiser candidate who remains on the list shall serve as the Appraiser. The Equity Value Appraiser shall be requested to make its determination within a period of 30 days after the deadline for submissions to be made by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, pursuant to Section 3(c)(iii), or as soon as practicable thereafter.
(iii) Within five Business Days of the appointment of the Appraiser, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall submit to the Equity Value Appraiser (A) its proposed determination of the Equity Value provided to the other party pursuant to Section 2(c)(i), (B) a list of factors that it believes to be relevant in the determination of the Equity Value, and (C) the reasons for that proposed value. In addition, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall at the same time deliver to the other a copy of any submission or information supplied by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, to the Equity Value Appraiser.
(iv) The Equity Value Appraiser shall then make its own determination (having requested such further information from the Management Stockholders, Xxxxx and/or the Company as it shall require) of the Equity Value.
(v) The Equity Value Appraiser shall certify to each of the Management Stockholders, Xxxxx and the Company (A) that, having considered the respective submissions of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, it has made its own determination of the Equity Value according to the principles of this Agreement and (B) the proposed value of which of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, it determines to be closer to the Equity Value. The value proposed by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, so certified by the Equity Value Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Equity Value for purposes of Section 2(b) above.
(vi) The fees and expenses of the Equity Value Appraiser shall be paid equally by the Management Stockholders, on the one hand, or Xxxxx, on the other hand. The Equity Value Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Management Stockholders, on the one hand, and Xxxxx, on the other hand, in the absence of manifest error. The Equity Value Appraiser shall have no liability to any of the Management Stockholders, Xxxxx or the Company in respect of its determination.with
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Management Incentive. Plan As promptly as reasonably practicable following the Plan Effective Date, Reorganized Xxxxxxx will implement a management incentive plan (a) Unless Incentive Shares the “MIP”), which shall reserve for its participants PIK Preferred Stock having an initial liquidation value of $5 million and cash-settlement restricted stock units, which shall economically represent 5% of the value of the Common Equity as of the Plan Effective Date. The MIP shall include terms and conditions acceptable to the Reorganized Xxxxxxx Board. The members of the Xxxxxxx MBE Group and the management team that are or become employees of Reorganized Xxxxxxx will be entitled to participate in the MIP. Interest Payment The parties acknowledge and agree that the Company has not made and will not make the interest payment on the Secured Notes due on January 1, 2017. During the time the RSA is in effect, the Consenting Noteholders agree to forbear from exercising any remedy under the Indenture or otherwise on account of such non-payment, and, to the extent necessary, shall direct the Indenture Trustee not to exercise any such remedy under the Indenture or otherwise. Further, the holders of the Secured Notes shall receive the consideration set forth herein in full and final satisfaction of all unpaid principal and interest (including, for the avoidance of doubt, the interest payment due on January 1, 2017). Cash Collateral During the Chapter 11 Cases, the Consenting Noteholders shall consent to the Company’s access to and use of cash collateral in accordance with an order acceptable to the Company and the Required Consenting Noteholders in all respects. SEC Reporting As soon as reasonably practicable after the RSA Effective Date, the Company shall make all necessary filings to cease to be subject to the public reporting requirements under the Securities Exchange Act of 1934, the Xxxxxxxx-Xxxxx Act, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010, and other applicable securities rules and regulations. Once the Company is no longer subject to SEC reporting requirements, the Company will provide comparable reporting to the indenture trustee to the New Notes and the administrative and collateral agent of the Amended Credit Facility, including by providing information and reports substantially similar to those required in SEC Forms 10-K and 10-Q for a reporting company of similar size to the Company and by providing information regarding the occurrence of any event which would have previously been delivered pursuant required the Company to Section 2(b) below, immediately file a Current Report on Form 8-K with the SEC if such event had occurred prior to the consummation Company no longer being subject to SEC reporting requirements. Indemnification of a Sale TransactionPrepetition Officers and Directors The Plan shall provide for prepaid tail coverage liability insurance for the Company’s directors and officers, which insurance policy will be obtained in consultation with the Consenting Noteholders and in no event shall the premium paid by the Company for such tail policy exceed $400,000. As of the Plan Effective Date, the Company shall enter into customary indemnification agreements to those directors, officers, and employees of the Company employed or otherwise serving as of the Plan Effective Date. Reorganized Xxxxxxx shall execute indemnification agreements no less favorable to the indemnitees than the Company’s existing indemnification agreements with directors and executive officers. Restructuring Fees and Expenses Prior to the RSA Effective Date, the Company shall have paid all reasonable and documented out-of-pocket expenses and fees of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP (“Akin”) and Xxxxxxxxx & Co., LLC (“Xxxxxxxxx”) incurred to date in connection with the Restructuring. In addition, prior to the RSA Effective Date, the Company shall withdraw its termination of Akin and Xxxxxxxxx pursuant to letters dated August 2, 2016 and shall reinstate Akin and Xxxxxxxxx on the terms set forth in their respective engagement letters (the “Consenting Noteholder Engagement Letters”). Following the RSA Effective Date, the Company shall pay all reasonable and documented out-of-pocket expenses and fees of the Consenting Noteholders in connection with the Restructuring, including, but not limited to, reasonable and documented out-of-pocket expenses and fees of Akin and Xxxxxxxxx, and all fees and expenses of one local counsel, in consideration each case that are due and owning after receipt of reasonably detailed applicable invoices (with such redactions that are necessary to preserve attorney-client privilege, as applicable), and in accordance with the terms of the value Xxxxxx applicable Consenting Noteholder Engagement Letter, with any balance(s) paid on the Plan Effective Date, including, for the avoidance of doubt the Transaction Fee (as defined in the Xxxxxxxxx engagement letter). Releases and Exculpation To the fullest extent permitted by applicable law, the Plan shall have brought to the business include a full release from liability in favor of the Company, the Xxxxxxx MBE Group, the Xxxxxxx MBE Group Entity, and each of its members, the holders of the Secured Notes, the Indenture Trustee, the Administrative Agent, the existing equity holders, AT&T and their respective current and former direct and indirect affiliates and their and their respective affiliates’ equity holders, members, partners, subsidiaries, affiliates, funds, managers, managing members, officers, directors, employees, advisors, financial advisors, principals, attorneys, professionals, accountants, investment bankers, consultants, agents and other representatives (including their respective equity holders, members, partners, subsidiaries, affiliates, funds managers, managing members, officers, directors, employees, advisors, principals, attorneys, professionals, accountants, investment bankers, consultants, agents and other representatives) (collectively, the “Released Parties”) by the Company shall deliver to Xxxxxx and each of its members, the Incentive Shares. In Xxxxxxx MBE Group, the event that at Xxxxxxx MBE Group Entity, the existing equity holders and the holders of the Secured Notes from any time following claims or causes of action related to, or arising out of, the Restructuring, the Amended Credit Facility, the Chapter 11 Cases, the pursuit of confirmation of the Plan, in each case as applicable, the consummation of such Sale Transactionthe Plan or the administration of the Plan or the property to be distributed under the Plan, there except for claims resulting from fraud, gross negligence or willful misconduct. For the avoidance of doubt, the Released Parties shall be any reduction included in and protected by the exculpation and injunction provisions of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, Xxxxxx shall pay to each of Xxxxx and, if applicable, Xxxxxxx, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal Plan to the amount such Stockholder would have received had the Incentive Payment Amount and Xxxxxx’x Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall Xxxxxx be required to pay an aggregate amount that would result in Xxxxxx receiving less than its Trued-up Amount.
(b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which Xxxxx and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the Xxxxx Ownership Percentage is less than 10% of the initial Xxxxx Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance with Section 2(c) below and, promptly following the determination of such Equity Value, in consideration of the value Xxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx the Incentive Shares, if anyfullest extent possible under law; provided, however, that the foregoing shall not release in any capacity former directors and officers (isolely to extent that such former directors and officers are not also members of the Xxxxxxx MBE Group) of the Company as of the commencement of the Chapter 11 Cases. Tax Matters The parties shall work together in no event shall good faith and use reasonable best efforts to structure and implement the Management Stockholders have Restructuring and the right transactions related thereto in a tax efficient and cost-effective manner for the Company, the existing equity holders, and the Consenting Noteholders. Conditions Precedent to request such determination following the Closing The occurrence of any Sale Transaction the Plan Effective Date shall be subject to the satisfaction of the conditions precedent set forth in the RSA and the Plan. Organizational Documents On or before the Plan Effective Date, the Company, the Required Consenting Equityholders, and the Required Consenting Noteholders shall (a) amend and restate the Company’s certificate of incorporation (the “Amended and Restated Certificate of Incorporation”), (b) amend and restate the Company’s bylaws (the “Amended and Restated Bylaws”), and (iic) enter into a shareholders agreement (the Management Stockholders shall not have the right to request such determination more than once. The Management Stockholders shall make such request by providing written notice thereof “Shareholders Agreement”), in each case of (a)–(c), on terms acceptable to the Company, such notice to by signed by each Management Stockholder.
(c) If the Management Stockholders shall have requested a determination Required Consenting Equityholders, and the Required Consenting Noteholders in all respects. The Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws, and the Shareholders Agreement shall, as applicable, set forth the minority protections5 for the holders of the Equity Value pursuant to Section 2(b) abovePIK Preferred Stock and the New Common Stock, including, but not limited to, voting arrangements for the Equity Value shall be determined as follows:
(i) During the ten-day period following the date on which such determination is requested, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall each submit to the other such party’s respective proposal as to the Equity Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Equity Value shall be equal to the average appointing of such proposals.
(ii) In the event that one members of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission board of such proposals, the Management Stockholders, on the one hand, directors and Xxxxx, on the other, shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Equity Value Appraiser”). In the event that such parties fail to jointly select the Appraiser within such period, then at the request of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, the American Arbitration Association shall provide them with a list of at least five Equity Value Appraiser candidates and each of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, shall be allowed to strike a number of names from the list and rank the remaining Equity Value Appraiser candidates in order of acceptance. The highest ranking Equity Value Appraiser candidate who remains on the list shall serve as the Appraiser. The Equity Value Appraiser shall be requested to make its determination within a period of 30 days after the deadline for submissions to be made by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, pursuant to Section 3(c)(iii), or as soon as practicable thereafterfinancial reporting covenants.
(iii) Within five Business Days of the appointment of the Appraiser, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall submit to the Equity Value Appraiser (A) its proposed determination of the Equity Value provided to the other party pursuant to Section 2(c)(i), (B) a list of factors that it believes to be relevant in the determination of the Equity Value, and (C) the reasons for that proposed value. In addition, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall at the same time deliver to the other a copy of any submission or information supplied by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, to the Equity Value Appraiser.
(iv) The Equity Value Appraiser shall then make its own determination (having requested such further information from the Management Stockholders, Xxxxx and/or the Company as it shall require) of the Equity Value.
(v) The Equity Value Appraiser shall certify to each of the Management Stockholders, Xxxxx and the Company (A) that, having considered the respective submissions of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, it has made its own determination of the Equity Value according to the principles of this Agreement and (B) the proposed value of which of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, it determines to be closer to the Equity Value. The value proposed by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, so certified by the Equity Value Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Equity Value for purposes of Section 2(b) above.
(vi) The fees and expenses of the Equity Value Appraiser shall be paid equally by the Management Stockholders, on the one hand, or Xxxxx, on the other hand. The Equity Value Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Management Stockholders, on the one hand, and Xxxxx, on the other hand, in the absence of manifest error. The Equity Value Appraiser shall have no liability to any of the Management Stockholders, Xxxxx or the Company in respect of its determination.
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Management Incentive. Plan On or before the 60th day following the Plan Effective Date or as soon as reasonably practicable thereafter, Reorganized Parent shall enter into a management incentive plan (athe “Management Incentive Plan”) Unless Incentive Shares have previously been delivered which shall (i) reserve 8% of the New Equity Interests (or restricted stock units, options, or other rights exercisable, exchangeable, or convertible into such New Equity Interests) on a fully diluted basis to certain members of senior management to be determined by the New Board (“MIP Equity”) and (ii) otherwise contain terms and conditions (including the form of awards, allocation of awards, vesting and performance metrics) to be determined by the New Board. Any shares of MIP Equity acquired pursuant to Section 2(b) belowthe Management Incentive Plan shall dilute the shares of New Equity Interests (including, immediately prior without limitation, any equity issued with respect to the consummation of a Sale TransactionNew Warrants) otherwise distributed pursuant to the Plan. Releases, Exculpation, and Indemnification The Plan and the Combined Disclosure Statement and Confirmation Order will contain customary mutual releases (including third party releases), exculpation, and indemnification provisions, in consideration of the value Xxxxxx shall have brought each case, to the business fullest extent permitted by law, in favor of the Company, the Reorganized Debtors, the RBL Secured Parties, the Postpetition Hedging Lenders, the lenders, agents, and other parties to the Facilities as of the Effective Date, the Consenting Noteholders, the members of the Ad Hoc Noteholders Group, the Indenture Trustee, holders of Parent Preferred Equity Interests and holders of Parent Common Equity Interests that provide a release, and each of their respective current and former affiliates, subsidiaries, members, directors, officers, professionals, advisors, and employees, in their respective capacities as such. Such release and exculpation shall include, without limitation, any and all claims, obligations, rights, suits, damages, causes of action, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, including any derivative claims and avoidance actions, of the Company shall deliver and such other releasing party, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, contract, or otherwise, that the Company or such other releasing party would have been legally entitled to Xxxxxx assert in its own right (whether individually or collectively), or on behalf of the Incentive Shares. In the event that holder of any claim or equity interest (whether individually or collectively) or other entity, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstances existing or taking place at any time following consummation of such Sale Transactionprior to or on the Plan Effective Date arising from or related in any way in whole or in part to the Company or its affiliates or subsidiaries, there shall be any reduction the RBL Facility, the Notes, the Chapter 11 Cases, the Plan, the Disclosure Statement, the Facilities, the Restructuring Support Agreement, the Term Sheets, the purchase, sale, or rescission of the purchase price, or the Stockholders or the Company are required to make sale of any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, Xxxxxx shall pay to each of Xxxxx and, if applicable, Xxxxxxx, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and Xxxxxx’x Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall Xxxxxx be required to pay an aggregate amount that would result in Xxxxxx receiving less than its Trued-up Amount.
(b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which Xxxxx and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the Xxxxx Ownership Percentage is less than 10% of the initial Xxxxx Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance with Section 2(c) below and, promptly following the determination of such Equity Value, in consideration of the value Xxxxxx shall have brought to the business security of the Company, the Company subject matter of, or the transactions or events giving rise to, any claim or equity interest that is treated in the Plan, or the negotiation, formulation, or preparation of the Definitive Documents or related agreements, instruments, or other documents. To the maximum extent permitted by applicable law, any such releases shall deliver bind all parties that affirmatively vote to Xxxxxx accept the Incentive SharesPlan, those parties that abstain from voting on the Plan if any; providedthey fail to opt-out of the releases, howeverthose parties that vote to reject the Plan unless they opt-out of the releases, those non-voting parties that (i) in no event shall the Management Stockholders have the right fail to request such determination following the occurrence return an opt-out form, and all other holders of any Sale Transaction claims and (ii) the Management Stockholders shall not have the right to request such determination more than once. The Management Stockholders shall make such request by providing written notice thereof interests to the Company, such notice to by signed by each Management Stockholder.
(c) If the Management Stockholders shall have requested a determination of the Equity Value pursuant to Section 2(b) above, the Equity Value shall be determined as follows:
(i) During the ten-day period following the date on which such determination is requested, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall each submit to the other such party’s respective proposal as to the Equity Valuemaximum extent permitted under applicable law. If the higher proposal is not more than 10% higher than the lower proposal, then the Equity Value shall be equal to the average of such proposals.
(ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Equity Value Appraiser”). In the event that such parties fail to jointly select the Appraiser within such period, then at the request of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, the American Arbitration Association shall provide them with a list of at least five Equity Value Appraiser candidates and each of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, shall be allowed to strike a number of names from the list and rank the remaining Equity Value Appraiser candidates in order of acceptance. Injunction & Discharge The highest ranking Equity Value Appraiser candidate who remains on the list shall serve as the Appraiser. The Equity Value Appraiser shall be requested to make its determination within a period of 30 days after the deadline for submissions to be made by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, pursuant to Section 3(c)(iii), or as soon as practicable thereafter.
(iii) Within five Business Days of the appointment of the Appraiser, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall submit to the Equity Value Appraiser (A) its proposed determination of the Equity Value provided to the other party pursuant to Section 2(c)(i), (B) a list of factors that it believes to be relevant in the determination of the Equity Value, and (C) the reasons for that proposed value. In addition, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall at the same time deliver to the other a copy of any submission or information supplied by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, to the Equity Value Appraiser.
(iv) The Equity Value Appraiser shall then make its own determination (having requested such further information from the Management Stockholders, Xxxxx and/or the Company as it shall require) of the Equity Value.
(v) The Equity Value Appraiser shall certify to each of the Management Stockholders, Xxxxx Plan and the Company (A) that, having considered the respective submissions of the Management Stockholders, on the one hand, Combined Disclosure Statement and Xxxxx, on the other hand, it has made its own determination of the Equity Value according to the principles of this Agreement Confirmation Order will contain customary injunction and (B) the proposed value of which of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, it determines to be closer to the Equity Value. The value proposed by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, so certified by the Equity Value Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Equity Value for purposes of Section 2(b) abovedischarge provisions.
(vi) The fees and expenses of the Equity Value Appraiser shall be paid equally by the Management Stockholders, on the one hand, or Xxxxx, on the other hand. The Equity Value Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Management Stockholders, on the one hand, and Xxxxx, on the other hand, in the absence of manifest error. The Equity Value Appraiser shall have no liability to any of the Management Stockholders, Xxxxx or the Company in respect of its determination.
Appears in 1 contract
Samples: Restructuring Support Agreement (Lonestar Resources US Inc.)
Management Incentive. (a) Unless Incentive Shares have previously been delivered pursuant to Section 2(b) below, immediately prior to the consummation of a Sale Transaction, in consideration of the value Xxxxxx Xxxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx Xxxxxxx the Incentive Shares. In the event that at any time following consummation of such Sale Transaction, there shall be any reduction of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, Xxxxxx Xxxxxxx shall pay to each of Xxxxx and, if applicable, XxxxxxxXxxxxx, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and Xxxxxx’x Raymond’s Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall Xxxxxx Xxxxxxx be required to pay an aggregate amount that would result in Xxxxxx Xxxxxxx receiving less than its his Trued-up Amount.
(b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which Xxxxx and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the Xxxxx Ownership Percentage is less than 10% of the initial Xxxxx Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance with Section 2(c) below and, promptly following the determination of such Equity Value, in consideration of the value Xxxxxx shall have brought to the business of the Company, the Company shall deliver to Xxxxxx the Incentive Shares, if any; provided, however, that (i) in no event shall the Management Stockholders have the right to request such determination following the occurrence of any Sale Transaction and (ii) the Management Stockholders shall not have the right to request such determination more than once. The Management Stockholders shall make such request by providing written notice thereof to the Company, such notice to by signed by each Management Stockholder.
(c) If the Management Stockholders shall have requested a determination of the Equity Value pursuant to Section 2(b) above, the Equity Value shall be determined as follows:
(i) During the ten-day period following the date on which such determination is requested, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall each submit to the other such party’s respective proposal as to the Equity Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Equity Value shall be equal to the average of such proposals.
(ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, the Management Stockholders, on the one hand, and Xxxxx, on the other, shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Equity Value Appraiser”). In the event that such parties fail to jointly select the Appraiser within such period, then at the request of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, the American Arbitration Association shall provide them with a list of at least five Equity Value Appraiser candidates and each of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, shall be allowed to strike a number of names from the list and rank the remaining Equity Value Appraiser candidates in order of acceptance. The highest ranking Equity Value Appraiser candidate who remains on the list shall serve as the Appraiser. The Equity Value Appraiser shall be requested to make its determination within a period of 30 days after the deadline for submissions to be made by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, pursuant to Section 3(c)(iii), or as soon as practicable thereafter.
(iii) Within five Business Days of the appointment of the Appraiser, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall submit to the Equity Value Appraiser (A) its proposed determination of the Equity Value provided to the other party pursuant to Section 2(c)(i), (B) a list of factors that it believes to be relevant in the determination of the Equity Value, and (C) the reasons for that proposed value. In addition, each of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, shall at the same time deliver to the other a copy of any submission or information supplied by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, to the Equity Value Appraiser.
(iv) The Equity Value Appraiser shall then make its own determination (having requested such further information from the Management Stockholders, Xxxxx and/or the Company as it shall require) of the Equity Value.
(v) The Equity Value Appraiser shall certify to each of the Management Stockholders, Xxxxx and the Company (A) that, having considered the respective submissions of the Management Stockholders, on the one hand, and Xxxxx, on the other hand, it has made its own determination of the Equity Value according to the principles of this Agreement and (B) the proposed value of which of the Management Stockholders, on the one hand, or Xxxxx, on the other hand, it determines to be closer to the Equity Value. The value proposed by the Management Stockholders, on the one hand, or Xxxxx, on the other hand, so certified by the Equity Value Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Equity Value for purposes of Section 2(b) above.
(vi) The fees and expenses of the Equity Value Appraiser shall be paid equally by the Management Stockholders, on the one hand, or Xxxxx, on the other hand. The Equity Value Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Management Stockholders, on the one hand, and Xxxxx, on the other hand, in the absence of manifest error. The Equity Value Appraiser shall have no liability to any of the Management Stockholders, Xxxxx or the Company in respect of its determination.to
Appears in 1 contract
