FUTURE INCENTIVE UNITS AWARD AGREEMENT
Exhibit 10.33
EXECUTION VERSION
FUTURE INCENTIVE UNITS AWARD AGREEMENT
THIS FUTURE INCENTIVE UNITS AWARD AGREEMENT (this “Agreement”) IS DATED AS OF March 13, 2019 (the “Effective Date”), BY AND AMONG ENDEAVOR OPERATING COMPANY, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“ EOC Parent”), ENDEAVOR GROUP HOLDINGS, INC., A DELAWARE CORPORATION (“EGH”), XXXXX XXXXXXX, AN INDIVIDUAL (the “Grantee”), AND, SOLELY FOR PURPOSES OF SECTIONS 1 AND 4 HEREOF, WME IRIS MANAGEMENT HOLDCO II, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“Xxxx XX”), WME IRIS MANAGEMENT V HOLDCO, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“Iris V”), WME HOLDCO, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“WME Holdco”).
RECITALS
| A. | EOC Parent, Xxxx XX, Xxxx V, WME Holdco and Grantee are party to that certain Amended and Restated Vesting Side Letter, dated as of December 18, 2013 (as amended, restated, modified or supplemented, the “Vesting Letter”). |
| B. | EOC Parent (on behalf of itself and Xxxxxxx Xxxxxx Endeavor Entertainment, LLC), Xxxx XX, Xxxx V, WME Holdco and Grantee acknowledge and agree that as of the Effective Date, the Vesting Letter shall be superseded in its entirety by this Agreement and the Vesting Letter shall hereby terminate and no longer have any force or effect. |
| C. | This Agreement is designed to compensate Grantee for his time and commitment in the performance of services to EOC Parent, EGH and their respective subsidiaries (collectively, the “Employer”) by providing Grantee with a direct or indirect interest in the appreciation of Employer. |
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, the parties hereto agree as follows:
| 1. | Grantee’s Owned Units. |
(a) EOC Parent, Xxxx XX, Iris V and WME Holdco each acknowledge and agree that, as of the Effective Date, (i) Grantee, or his Related Person(s), owns the class and number of non-forfeitable and non-redeemable equity securities set forth on Schedule A attached hereto (together with any Future Incentive Units issued hereunder, the “Owned Units”), (ii) the number of vested and unvested Owned Units is set forth opposite such Owned Units under the headings “Vested Owned Units” and “Unvested Owned Units”, respectively, (iii) the unvested Owned Units shall vest in accordance with the vesting principles set forth on Schedule B attached hereto and (iv) the Distribution Threshold of the Owned Units, to the extent such Owned Units are profits interests, is set forth opposite such Owned Units under the heading “Distribution Threshold”, and is subject to the principles set forth opposite such Owned Units under the heading “Catch-Up Principles”.
(b) The Distribution Threshold of the Owned Units, as applicable, may be adjusted by, prior to an initial public offering of equity securities of EOC Parent, EGH, or any other vehicle formed for the purpose of effecting an initial public offering of EOC Parent or EGH (an “IPO”), the board of directors of EOC Parent (the “EOC Parent Board”), and following an IPO, the Executive Committee of the board of directors of EGH, or, if the Executive Committee of the board of directors of EGH is dissolved and no such committee exists as the applicable time of determination, the board of directors of EGH (each, as applicable, the “EGH Governing Body”), in good faith, to account for capital contributions, distributions or other similar events; provided, that in the case of adjustments to the Distribution Threshold, such adjustment shall only be by the amount necessary so that the Owned Units satisfy the requirements for a profits interest as set forth in Internal Revenue Service (“IRS”) Revenue Procedures 93-27 and 2001-43, or any future IRS guidance or other authority that supplements or supersedes the foregoing IRS Revenue Procedures.
(c) Notwithstanding anything to the contrary in the limited liability company agreements of EOC Parent, Xxxx XX or Xxxx V, none of Grantee’s Xxxx XX Units, Key Employee Units, Iris V Units or Future Incentive Units (each, as defined on Schedule A hereto) shall (i) be converted, recapitalized, reclassified, redeemed or otherwise exchanged in connection with an IPO; or (ii) be subject to any exchange, repurchase or redemption rights of EOC Parent, EGH, Xxxx XX, Xxxx V or any of their respective Affiliates, in each case of clauses (i) and (ii), without Grantee’s express prior written consent in Grantee’s sole discretion. Without limiting the foregoing, Grantee, EOC, EGH, Iris V and WME Holdco agree that Grantee shall provide his written consent to have his Owned Units that are “catch-up” or “partial catch-up” profits interests that, based on the total equity value of EOC Parent implied by the offering price of a share of common stock of EGH to the public in such IPO, will receive the same economics that they would have received if such Owned Units had a Distribution Threshold equal to the applicable “catch-up” or “partial catch-up” Distribution Threshold of such Owned Units set forth on Schedule A, be converted, recapitalized, reclassified, redeemed or otherwise exchanged into Class A Common Units of EOC Parent in connection with such IPO.
| 2. | Issuance of Future Incentive Units. |
(a) Upon the achievement by EOC Parent of each Performance Equity Value during the Future Incentive Eligibility Period that represents an incremental $1,000,000,000 of appreciation above Future Incentive Initial Measurement Value (each such $1,000,000,000 incremental threshold above Future Incentive Initial Measurement Value, the “Applicable Future Incentive Threshold”), EOC Parent shall issue to Grantee, or, at Grantee’s election, Grantee’s Related Person(s), on such date of such achievement of the Applicable Future Incentive Threshold, Future Incentive Units having a value as of the date of such achievement of the Applicable Future Incentive Threshold equal to $12,500,000 (assuming the minimum amount of appreciation from and after such
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Applicable Future Incentive Threshold); provided, that notwithstanding the foregoing, on the date of the achievement by EOC Parent of the first Applicable Future Incentive Threshold, which the parties hereby acknowledge and agree shall be $7,525,050,544, EOC Parent shall issue to Grantee Future Incentive Units having a value as of the date of such achievement of the Applicable Future Incentive Threshold equal to $25,000,000 (assuming the minimum amount of appreciation from and after such Applicable Future Incentive Threshold). For the avoidance of doubt, not more than one issuance of Future Incentive Units shall be made in respect of a specific Applicable Future Incentive Threshold achieved.
(b) Notwithstanding anything to the contrary contained in this Agreement, upon the date Grantee’s employment with Employer is terminated by Employer without Cause or by Grantee with Good Reason, EOC Parent shall issue to Grantee, or, at Grantee’s election upon prior notice to EOC Parent, Grantee’s Related Person(s), on such date of such termination of Grantee’s employment, Future Incentive Units having a value equal to the product of (i) $12,500,000 (or, if Grantee’s employment is terminated prior to the achievement by EOC Parent of the first Applicable Future Incentive Threshold of $7,525,050,544, $25,000,000) (in each case, assuming the minimum amount of appreciation from and after such Applicable Future Incentive Threshold), multiplied by (ii) a percentage, represented by a fraction, the numerator of which is the amount that the Performance Equity Value as of the date of such termination of Grantee’s employment exceeds the last Applicable Future Incentive Threshold above Future Incentive Initial Measurement Value achieved by EOC Parent (or, if no such Applicable Future Incentive Threshold above Future Incentive Initial Measurement Value is achieved, Future Incentive Initial Measurement Value), and the denominator of which equals $1,000,000,000 (such Future Incentive Units, the “Partial Future Incentive Units”). Notwithstanding anything to the contrary set forth herein, the Partial Future Incentive Units shall become fully vested, non-forfeitable and non-redeemable on the date of grant.
(c) Future Incentive Units shall automatically, without any further action of any party hereto, be issued (and for all purposes be deemed issued) to Grantee upon the date on which Grantee earned such Future Incentive Units in accordance with the terms hereunder. Upon each issuance of Future Incentive Units, Schedule A of this Agreement shall be promptly updated by EOC Parent to reflect such issuance, and EOC Parent shall promptly update its member schedule and books and records to reflect such issuance of Future Incentive Units. As a condition to the issuance of the Future Incentive Units, Grantee must complete, sign and deliver to EOC Parent within thirty (30) days of the date such Future Incentive Units are issued to Grantee in accordance with this Agreement, a Section 83(b) election form in the form attached hereto as Annex I (the “Section 83(b) Election”) by overnight FedEx to Xxxx Xxxxxxxx (c/o Endeavor Operating Company, LLC, 0000 Xxxxxxxx Xxxxxxxxx, 0xx Xx., Xxxxxxx Xxxxx, XX 00000 Attention: Xxxx Xxxxxxxx). If Grantee fails to make a valid and timely Section 83(b) Election, the Future Incentive Units issued to Grantee pursuant to this Agreement shall be automatically forfeited.
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(d) Notwithstanding anything to the contrary in this Agreement, with respect to any award to be issued under Section 2(a) or Section 2(b) in connection with or following an IPO, Grantee shall receive (x) in lieu of the applicable issuance of Future Incentive Units provided for in Section 2(a), an award of restricted stock or restricted stock units (as elected by Grantee) of EGH having a value as of the date of the achievement of the Applicable Future Incentive Threshold equal to $14,000,000 or, in the case of any such achievement by EOC Parent of the first Applicable Future Incentive Threshold, having a value equal to $28,000,000, and (y) in lieu of the applicable issuance of Partial Future Incentive Units provided for in Section 2(b), an award of restricted stock or restricted stock units (as elected by Grantee) of EGH having a value on the applicable date of termination of Grantee’s employment equal to the product of (i) $14,000,000 (or, if Grantee’s employment is terminated prior to the achievement of the first Applicable Future Incentive Threshold, $28,000,000), multiplied by (ii) a percentage, represented by a fraction, the numerator of which is the amount that the Performance Equity Value as of the date of such termination of Grantee’s employment exceeds the last Applicable Future Incentive Threshold above Future Incentive Initial Measurement Value achieved (or, if no such Applicable Future Incentive Threshold above Future Incentive Initial Measurement Value is achieved, Future Incentive Initial Measurement Value), and the denominator of which equals $1,000,000,000, and, in each case of clauses (x) and (y), otherwise having terms substantially similar in all material respects (and no less favorable to Grantee) to the terms applicable to the issuance of Future Incentive Units or Partial Future Incentive Units, as applicable, by EOC Parent hereunder.
(e) Upon a termination of Grantee’s employment with Employer for any reason, Grantee may, but shall not be obligated to, elect to cause Grantee’s vested Owned Units to be exchanged or redeemed for Class A Common Units of EOC Parent or Class A Common Stock of EGH, in each case, having a value equal to such vested Owned Units as of the time of such exchange or redemption. If Grantee makes such an election, each of EOC Parent and EGH agree to take all actions necessary in order to facilitate the consummation of the foregoing.
(f) EOC and EGH agree to cause the disinterested directors (or any committee of disinterested directors) on the EGH Governing Body to approve and exempt each issuance of Future Incentive Units and restricted stock or restricted stock units (in each case, as contemplated hereunder) under Rule 16b-3 of the Securities Exchange Act of 1934.
(g) Following an IPO, EGH hereby agrees to cause Employer to perform all of Employer’s agreements, covenants and obligations under this Agreement on a timely basis. EGH hereby irrevocably and unconditionally guarantees to Grantee the full and complete payment and performance by Employer of its obligations under this Agreement and shall be liable for any breach of any covenant or obligation of Employer under this Agreement. This guarantee is an absolute and continuing guarantee of payment and performance, and shall be unconditional irrespective of the validity, regularity or enforceability of this Agreement. EGH hereby waives diligence, presentment, demand of performance, filing of any claim, any right to require any proceeding first against Employer, protest, notice and all demands whatsoever in connection with the performance of its obligations under this Agreement.
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| 3. | Investment Intent; Other Representations of Grantee. |
3.1 Investment Intent. Grantee hereby represents and warrants that the Future Incentive Units are being acquired for investment and not with a view to distribution thereof, and covenants and agrees to make such other reasonable and customary representations as requested by EOC Parent regarding matters relevant to compliance with applicable securities laws as are deemed necessary by counsel to EOC Parent.
3.2 Other Representations. Grantee hereby represents and warrants to EOC Parent, as of the Effective Date and as of the date of grant of each Future Incentive Unit, as follows:
(a) Access to Information. Because of Grantee’s business relationship with Employer and with the management of Employer, Grantee has had access to all material and relevant information concerning Employer, thereby enabling Grantee to make an informed investment decision with respect to his investment in Future Incentive Units, and all pertinent data and information requested by Grantee from Employer or their respective representatives concerning the business and financial condition of Employer, as the case may be, and the terms and conditions of this Agreement have been furnished to Grantee. Grantee acknowledges that Grantee has had the opportunity to ask questions of and receive answers and obtain additional information from Employer and their respective representatives concerning the present and proposed business and financial conditions of Employer.
(b) Financial Sophistication. Grantee has such knowledge and experience in financial and business matters that Grantee is capable of evaluating the merits and risks of investing in the Future Incentive Units.
(c) Understanding the Investment Risks. Grantee understands that: (i) an investment in Future Incentive Units represents a highly speculative investment, and there can be no assurance as to the success of Employer in its business; (ii) an investment in Future Incentive Units in turn represents a highly speculative investment, and there can be no assurance as to the success of EOC Parent in its business; (iii) the Future Incentive Units are subject to restrictions on transfer that may significantly limit the ability of Grantee to market, transfer or sell the Future Incentive Units; (iv) the Future Incentive Units may be worthless; and (v) ownership of the Future Incentive Units may result in taxable income to Grantee without a corresponding cash or in-kind distribution.
3.3 Understanding of the Nature of the Future Incentive Units. Grantee understands and agrees that:
(a) The Future Incentive Units will not be registered under the Securities Act, or any applicable state securities laws;
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(b) If the Future Incentive Units are not so registered, the Future Incentive Units will be “restricted securities” as that term is defined in Rule 144 promulgated under the Securities Act;
(c) Grantee may not transfer the Future Incentive Units except as permitted under the organizational documents of EOC Parent and EGH;
(d) Only EOC Parent can register the Future Incentive Units under the Securities Act and applicable state securities laws, but it is not anticipated that the Future Incentive Units will be registered in any event;
(e) EOC Parent has not made any representations to Grantee that EOC Parent will register the Future Incentive Units under the Securities Act or any applicable state securities laws, or with respect to compliance with any exemption therefrom;
(f) Grantee is aware of the conditions restricting the transfer of Future Incentive Units under the organizational documents of EOC Parent; and
(g) EOC Parent may, from time to time, make stop transfer notations in its transfer record to ensure compliance with the Securities Act and any applicable state securities laws, and any additional restrictions imposed by state securities administrators.
3.4 Additional Acknowledgements. Grantee acknowledges that neither Grantee nor anyone acting on Grantee’s behalf has paid or will pay a commission or other remuneration to any person in connection with the acquisition of the Future Incentive Units.
3.5 No Reliance on EOC Parent. In making his investment decision with respect to the receipt of the Future Incentive Units, Grantee has not relied upon Employer or any of its respective Affiliates, or any representative thereof for any advice of any sort, including, but not limited to tax or securities law advice.
3.6 Private Offering. Grantee has not become aware of, and has not entered into this Agreement as a result of, any advertisement in printed media of general and regular paid circulation (or other printed public media), radio, television or telecommunications or other form of advertisement (including electronic display) with respect to Employer or the offering or the distribution of the Future Incentive Units.
| 4. | Miscellaneous. |
4.1 Notices. Notices to EOC Parent hereunder shall be addressed to EOC Parent at the principal executive office of EOC Parent, unless otherwise designated in writing by EOC Parent. Notices to Grantee hereunder shall be addressed to Grantee at the address appearing in the personnel records of Employer or an Affiliate thereof for Grantee, unless otherwise designated in writing by Grantee.
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4.2 Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Delaware applicable to contracts entered into and wholly performed in said state. No provision of this Agreement or any related document will be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured or drafted such provision.
4.3 Disputes. Upon the occurrence of any dispute or disagreement between the parties hereto arising out of or in connection with any term of this Agreement, the subject matter hereof, or the interpretation or enforcement hereof, the parties shall comply with the dispute resolution procedure set forth in Section 12 of the Employment Agreement.
4.4 Entire Agreement. This Agreement, together with the organizational documents of EOC Parent, Xxxx XX, Xxxx V, EGH and any other documents which may be entered into by Grantee and Employer on and after the Effective Date, constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior negotiations, discussion and preliminary agreements. This Agreement may not be amended except in writing executed by the parties hereto. EOC Parent (on behalf of itself and Xxxxxxx Xxxxxx Endeavor Entertainment, LLC), Xxxx XX, Xxxx V, WME Holdco and Grantee acknowledge and agree that as of the Effective Date, the Vesting Letter shall be superseded in its entirety by this Agreement and the Vesting Letter shall hereby terminate and no longer have any force or effect.
4.5 Counterparts. This Agreement may be executed in any number of counterparts and by facsimile, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.
4.6 Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and have participated jointly in the drafting of this Agreement and, therefore, waive the application of any law, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
4.7 Interpretation. Defined terms used in this Agreement in the singular shall import the plural and vice versa. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to Sections shall be deemed to be references to Sections of this Agreement unless the context shall otherwise require. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement (including any schedules or annexes attached hereto) as a whole and not to any particular provision of this Agreement. Any statute or laws defined or referred to herein shall include any rules, regulations or forms promulgated thereunder from time to time and as from time to time amended, modified or supplemented, including by succession of successor rules, regulations or forms. Unless
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otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Any reference to the number of Owned Units means such Owned Units as appropriately adjusted to give effect to any share combinations, restructuring or other capitalizations of EOC Parent or its capital structures. Any reference herein to the holder of a particular class or series of Owned Units shall be a reference to such Person solely in its capacity as a holder of that particular class or series of such Owned Units.
4.8 Definitions.
(i) “Affiliates” of any specified Person means any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such specified Person, and including any Trust or Family Member of such Person.
(ii) “Cause” shall have the meaning set forth in the Employment Agreement.
(iii) “Disability” shall have the meaning set forth in the Employment Agreement.
(iv) “Distribution Threshold” means the “Distribution Threshold” set forth opposite each applicable Owned Unit on Schedule A, as may be adjusted in accordance with Section 1(b).
(v) “Employment Agreement” means that certain Second Amended and Restated Term Employment Agreement, by and among Grantee, EOC Parent and EGH, effective as of the Effective Date.
(vi) “EOC Parent LLC Agreement” means the First Amended and Restated Limited Liability Company Agreement of EOC Parent, dated as of May 6, 2014, as may be amended, restated, modified or supplemented, from time to time.
(vii) “Family Member” means with respect to a Person, such Person’s husband, wife, domestic partner, parents, children or siblings, including any Affiliates thereof.
(viii) “Future Incentive Eligibility Period” means the period beginning on January 1, 2019 and ending on the earlier of (x) December 31, 2028 and (y) the date Grantee’s employment with WME is terminated for any reason.
(ix) “Future Incentive Initial Measurement Value” means $6,525,050,544.
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(x) “Future Incentive Units” means non-forfeitable and non-redeemable “catch-up” (as described under the heading “Catch-up Principles” set forth opposite such Future Incentive Units on Schedule A) Profits Units of EOC Parent issued to Grantee or Grantee’s Related Person(s) during the Future Incentive Eligibility Period, and any equity interests of EOC Parent which may hereafter be acquired by Grantee or Grantee’s Related Person(s) in exchange for such Future Incentive Units.
(xi) “Good Reason” shall have the meaning set forth in the Employment Agreement.
(xii) “Membership Interests” shall have the meaning set forth in the EOC Parent LLC Agreement.
(xiii) “Performance Equity Value” means, at any applicable time of determination, the total equity value of EOC Parent, which shall be equal to:
| (A) | if such time of determination is prior to or in connection with an IPO, the highest of (w) in the case of a Sale Transaction, the total equity value of EOC Parent implied from such Sale Transaction assuming a sale of one hundred percent (100%) of the Membership Interests of EOC Parent; (x) in case that Grantee requests a determination of Performance Equity Value at any time not more than once every twelve (12) months and no earlier than at least six (6) months following the Effective Date, the total equity value of EOC Parent if all of the equity interests of EOC Parent were sold by a seller with no compulsion to sell to a willing buyer in all cash arm’s length transaction, as determined by a third party valuation firm of national reputation chosen by the mutual agreement of the EOC Parent Board (excluding Grantee and Xxxxxxx Xxxxxxxxx), Grantee and Xxxxxxx Xxxxxxxxx; (y) in the case of one or more Specified Equity Transactions having been consummated during such period, the highest total equity value of EOC Parent implied from any such single Specified Equity Transaction consummated during the 180-day period (or such other period as Grantee, Xxxxxxx Xxxxxxxxx and the EOC Parent Board (excluding Grantee and Xxxxxxx Xxxxxxxxx) may agree) immediately preceding such applicable time of determination; and (z) in the case of an IPO (as defined in the EOC Parent LLC Agreement), the total equity value of EOC Parent based upon the offering price of a share of common stock of EGH to the public in such IPO; or |
| (B) | if such time of determination is following an IPO, the highest of: (x) in the case of a Sale Transaction, the total equity value of EOC Parent implied from such Sale Transaction assuming a sale of one hundred percent (100%) of the Membership Interests of EOC Parent, (y) in the case of one or more Specified Equity Transactions having been consummated during such period, the highest total equity value of EOC Parent implied from any such single Specified Equity Transaction consummated during the 180-day period (or such other period as Grantee, Xxxxxxx Xxxxxxxxx and the EOC Parent Board (excluding Grantee and Xxxxxxx Xxxxxxxxx) may agree) immediately preceding such applicable time of determination and (z) the total equity value of EGH and its subsidiaries based upon the volume weighted average price of a share of common stock of EGH on the primary exchange on which it is listed during the 30 consecutive trading days immediately preceding such applicable time of determination. |
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Each Performance Equity Value threshold in this Agreement shall be reduced by the EOC Parent Board or, following an IPO, the EGH Governing Body, as applicable, in good faith, to account for any distributions of non-cash assets or property or any extraordinary cash distributions (excluding tax distributions and distributions made pursuant to subclauses (1), (2) and (3) of Section 4.03(b) of the EOC Parent LLC Agreement (or any successor provision thereto)) by EOC Parent or EGH, as applicable.
(xiv) “Person” means any individual, firm, corporation, partnership, limited liability company, trust, estate, joint venture, governmental authority or other entity.
(xv) “Related Person(s)” means any Family Member, Trust and any other Person of which Grantee or any of the foregoing has a direct or indirect economic or beneficial or other interest in or is a beneficiary of.
(xvi) “Sale Transaction” shall have the meaning set forth in the EOC Parent LLC Agreement.
(xvii) “Specified Equity Transaction” means (x) an issuance or sale consummated by EOC Parent (other than any issuance or sale by EOC Parent to any employees of (and including any individual consultants to) EOC Parent or its subsidiaries) of any class or series of Membership Interests of EOC Parent; or (y) any other consummated transaction (including by merger) other than those described above, regardless of how structured, involving the acquisition of such Membership Interests of EOC Parent, in the case of each of clauses (x) and (y), in one or more related consummated transactions in which the aggregate consideration is greater than fifty million dollars ($50,000,000). In the case of each of clauses (x) and (y), the EOC Parent Board shall determine the fair market value of any noncash consideration contemplated in connection therewith, in good faith, subject to the dispute resolution mechanism contemplated in the definition of “Fair Market Value” in the EOC Parent LLC Agreement.
(xviii) “Trust” means, with respect to Grantee, (i) a revocable trust that is treated as a grantor trust for income tax purposes; provided, that and only so long as (a) the beneficiaries of such Trust includes only Grantee and Grantee’s spouse, domestic partner or lineal descendants; and (b) Grantee retains exclusive voting control over the Owned Units, in a trustee capacity or otherwise or (ii) any other trust that is solely for bona fide estate planning purposes that shall not, and shall not be used to, circumvent the provisions herein; provided, that and only so long as the beneficiaries of such Trust include only Grantee and Grantee’s spouse, domestic partner or lineal descendants.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
| /s/ Xxxxx Xxxxxxx | ||
| Xxxxx Xxxxxxx | ||
| ENDEAVOR OPERATING COMPANY, LLC | ||
| By |
| |
| Its |
Authorized Signatory | |
| ENDEAVOR GROUP HOLDINGS, INC. | ||
| By |
| |
| Its |
Authorized Signatory | |
| Solely for purposes of Sections 1 and 4: | ||
| WME IRIS MANAGEMENT HOLDCO II, LLC | ||
| By |
| |
| Its |
Authorized Signatory | |
| WME IRIS MANAGEMENT V HOLDCO, LLC | ||
| By |
| |
| Its |
Authorized Signatory | |
| WME HOLDCO, LLC | ||
| By |
| |
| Its |
Authorized Signatory | |
[Signature Page to Incentive Units Award Agreement]
SCHEDULE A
Owned Units (as of the Effective Date, except as otherwise noted)
| Owned Units |
Vested Owned |
Unvested |
Distribution |
Catch-Up Principles | ||||
| 96,797,917 Class A Units of WME Holdco, LLC | 96,797,917 | 0 | Not applicable. | Not applicable. | ||||
| 12,654,345 Class B Units of WME Iris Management Holdco II, LLC | 12,654,345 | 0 | $3,500,771,666 | Not applicable. | ||||
| 59,598,929 2017 Key Employee Profits Units of EOC Parent (“Key Employee Units”) | 18,374,628 | 41,224,301 | $5,412,062,174 | Grantee’s Key Employee Units will “catch-up” on distributions or appreciation from and after such Distribution Threshold is met so that, assuming sufficient distribution or appreciation, such Key Employee Units will “catch-up” and receive the same economics in any applicable distribution under the terms of the EOC Parent LLC Agreement that they would have received if the Key Employee Units had a Distribution Threshold of $4,980,762,192.2 | ||||
| 15,676,998 Executive Management Units of WME Iris Management V Holdco, LLC (“Iris V Units”) |
3,135,399 | 12,541,599 | $5,412,062,174 | Grantee’s Iris V Units will “catch-up” on distributions or appreciation from and after such Distribution Threshold is met so that, assuming sufficient distribution or appreciation, such Iris V Units will “catch-up” and receive the same economics in any applicable distribution under the terms of the EOC Parent LLC Agreement that they would have received if the Iris V Units had a Distribution Threshold of $0. | ||||
| 0 Future Incentive Units3 | Not applicable. | Not applicable. |
Not applicable. | When granted, Grantee’s Future Incentive Units will “catch-up” on distributions or appreciation from and after such Distribution Threshold is met so that, assuming sufficient distribution or appreciation, such Future Incentive Units will “catch-up” and receive the same economics in any applicable distribution under the terms of the EOC Parent LLC Agreement that they would have received if the Future Incentive Units had a Distribution Threshold of $0. | ||||
| 1 | Distribution Thresholds are as of December 31, 2018. |
| 2 | Distribution Threshold is as of December 31, 2018. |
| 3 | To be updated with an additional row for each grant of Future Incentive Units, including with number of units, applicable date of grant from which vesting is measured, and Distribution Threshold. |
SCHEDULE B
Vesting Principles
| 1. | Key Employee Units: |
| A. | For purposes of this Schedule B: |
(i) “Key Employee Performance Based Units” means 22,968,283 Key Employee Units.
(ii) “Key Employee Time Based Units” means 22,968,283 Key Employee Units.
(iii) “Key Employee Upside Units” means 13,662,363 Key Employee Units.
| B. | Grantee’s Key Employee Time Based Units shall vest in such amounts and at such times, so that, as of the applicable time of determination, one-fifth of Grantee’s Key Employee Time Based Units shall be vested on the first anniversary of January 1, 2017 (the “Key Employee Effective Date”), two-fifths of Grantee’s Key Employee Time Based Units shall be vested on the second anniversary of the Key Employee Effective Date, three-fifths of Grantee’s Key Employee Time Based Units shall be vested on the third anniversary of the Key Employee Effective Date, four-fifths of Grantee’s Key Employee Time Based Units shall be vested on the fourth anniversary of the Key Employee Effective Date and all of Grantee’s Key Employee Time Based Units shall be vested on the fifth anniversary of the Key Employee Effective Date. Notwithstanding the foregoing, (I) all of Grantee’s Key Employee Time Based Units shall be vested upon the earlier of (x) the consummation of a Sale Transaction and (y) the achievement by EOC Parent of a Performance Equity Value of $9,000,000,000; and (II) immediately following the consummation of an IPO, an additional number of Grantee’s unvested Key Employee Time Based Units shall be vested if necessary so that the total number of vested Key Employee Time Based Units shall equal the total number of vested Key Employee Performance Based Units at such time (a “Key Employee IPO Adjustment”), provided, that, upon a Key Employee IPO Adjustment, all of Grantee’s unvested Key Employee Time Based Units outstanding as of immediately following such Key Employee IPO Adjustment shall thereafter vest annually in equal installments over a number of anniversaries of the 2017 Effective Date thereafter equal to (x) five (5) minus (y) the product of five (5) multiplied by the aggregate percentage of Grantee’s Key Employee Time Based Units vested as of immediately following such Key Employee IPO Adjustment. |
| C. | The Key Employee Performance Based Units shall vest in such amounts and at such times, so that, as of the applicable time of determination, one-fifth of Grantee’s Key Employee Performance Based Units shall be vested upon the achievement by EOC Parent of a Performance Equity Value of $5,000,000,000, two-fifths of Grantee’s Key Employee Performance Based Units shall be vested upon the achievement by EOC Parent of a Performance Equity Value of |
SCHEDULE B
Vesting Principles
$6,000,000,000, three-fifths of Grantee’s Key Employee Performance Based Units shall be vested upon the achievement by EOC Parent of a Performance Equity Value of $7,000,000,000, four-fifths of Grantee’s Key Employee Performance Based Units shall be vested upon the achievement by EOC Parent of a Performance Equity Value of $8,000,000,000 and all of Grantee’s Key Employee Time Based Units shall be vested upon the achievement by EOC Parent of a Performance Equity Value of $9,000,000,000. Any of Grantee’s Key Employee Performance Based Units that do not vest upon a Sale Transaction based on the Performance Equity Value implied thereby in accordance with the foregoing shall remain outstanding and shall continue to be subject to vesting in accordance with the terms of this Section 1C, or, alternatively, may be rolled over into equity interests of the buyer with an equivalent economic value as of the consummation of such Sale Transaction and vesting conditions that are no less favorable to Grantee than the remaining vesting conditions with respect to Grantee’s unvested Key Employee Performance Based Units as of the consummation of such Sale Transaction. Any of Grantee’s Key Employee Performance Based Units that do not vest upon the consummation of an IPO based on the Performance Equity Value implied thereby in accordance with the foregoing shall remain outstanding and shall continue to be subject to vesting in accordance with the terms of this Section 1C.
D. The Key Employee Upside Units shall be vested upon the achievement of a Performance Equity Value of $9,000,000,000. Any of Grantee’s Key Employee Upside Units that do not vest upon a Sale Transaction based on the Performance Equity Value implied thereby in accordance with the foregoing shall remain outstanding and shall continue to be subject to vesting in accordance with the terms of this Section 1D, or, alternatively, may be rolled over into equity interests of the buyer with an equivalent economic value as of the consummation of such Sale Transaction and vesting conditions that are no less favorable to Grantee than the remaining vesting condition with respect to Grantee’s unvested Key Employee Upside Units as of the consummation of such Sale Transaction. Any of Grantee’s Key Employee Upside Units that do not vest upon the consummation of an IPO based on the Performance Equity Value implied thereby in accordance with the foregoing shall remain outstanding and shall continue to be subject to vesting in accordance with the terms of this Section 1D.
E. Notwithstanding anything to the contrary in Sections 1B, 1C and 1D of this Schedule B, (i) if Grantee’s employment with Employer is terminated by Employer without Cause or by Grantee with Good Reason, (x) 100% of Grantee’s then-unvested Key Employee Time Based Units shall be vested, non-forfeitable and non-redeemable upon the occurrence of such event and (y) all of Grantee’s unvested Key Employee Performance Based Units and Key Employee Upside Units shall remain outstanding and shall be vested solely upon the achievement of the applicable Performance Equity Value within twenty-four (24) months of such date of termination (and shall be automatically forfeited upon the expiration of
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SCHEDULE B
Vesting Principles
such 24-month period to the extent still unvested at that time), (ii) if Grantee’s employment with Employer is terminated due to Grantee’s death or Disability, a portion of Grantee’s then-unvested Key Employee Time Based Units and Key Employee Performance Based Units, if any, will become fully vested, non-forfeitable and non-redeemable on the date of such termination to the extent necessary so that one-third of Grantee’s Key Employee Time Based Units and Key Employee Performance Based Units, respectively, will have become fully vested, non-forfeitable and non-redeemable as of such date and (iii) if Grantee’s employment with Employer is terminated for any reason other than by Employer without Cause or by Grantee with Good Reason, then, subject to the vesting principles set forth in this Schedule B applicable to Grantee’s Key Employee Units, all of Grantee’s unvested Key Employee Units shall be forfeited.
| 2. | Iris V Units: |
A. Grantee’s Iris V Units shall vest in such amounts and at such times, so that one-fifth of Grantee’s Iris V Units shall be vested on the first anniversary of August 15, 2017 (the “Iris V Effective Date”), two-fifths of Grantee’s Iris V Units shall be vested on the second anniversary of the Iris V Effective Date, three-fifths of Grantee’s Iris V Units shall be vested on the third anniversary of the Iris V Effective Date, four fifths of Grantee’s Iris V Units shall be vested on the fourth anniversary of the Iris V Effective Date and all of Grantee’s Iris V Units shall be vested on the fifth anniversary of the Iris V Effective Date.
B. Notwithstanding anything to the contrary in Section 2A of this Schedule B, (i) upon the earliest to occur of (x) the consummation of an IPO (as defined in the EOC Parent LLC Agreement), (y) the consummation of a Sale Transaction and (z) the date Grantee’s employment with Employer is terminated by Employer without Cause or by Grantee with Good Reason (each as defined in Grantee’s Employment Agreement), 100% of Grantee’s Iris V Units shall be vested, non-forfeitable and non-redeemable upon the occurrence of such event, (ii) if Grantee’s employment with Employer is terminated due to Grantee’s death or Disability, a portion of Grantee’s then-unvested Iris V Units, if any, will become fully vested, non-forfeitable and non-redeemable on the date of such termination to the extent necessary so that one-third of Grantee’s Iris V Units will have become fully vested, non-forfeitable and non-redeemable as of such date and (iii) if Grantee’s employment with Employer is terminated for any reason other than by Employer without Cause or by Grantee with Good Reason, then, subject to the vesting principles set forth in this Schedule B applicable to Grantee’s Iris V Units, all of Grantee’s unvested Iris V Units shall be forfeited.
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SCHEDULE B
Vesting Principles
| 3. | Future Incentive Units: |
A. Each grant of Future Incentive Units (other than a grant of Partial Future Incentive Units) granted in a specific issuance of Future Incentive Units hereunder shall vest in such amounts and at such times, so that one-third of such Future Incentive Units granted in such issuance shall be vested on the date of grant of such Future Incentive Units, two-thirds of such Future Incentive Units granted in such issuance shall be vested on the first anniversary of the date of grant of such Future Incentive Units and all of such Future Incentive Units granted in such issuance shall be vested on the second anniversary of the date of grant of such Future Incentive Units.
B. Notwithstanding anything to the contrary in Section 3A of this Schedule B, (i) upon the earliest to occur of (x) the consummation of a Sale Transaction and (y) the date Grantee’s employment with Employer is terminated by Employer without Cause or by Grantee with Good Reason, 100% of Grantee’s Future Incentive Units shall be vested, non-forfeitable and non-redeemable upon the occurrence of such event, (ii) if Grantee’s employment with Employer is terminated due to Grantee’s death or Disability, a portion of each issuance of Grantee’s then-unvested Future Incentive Units, if any, will become fully vested, non-forfeitable and non-redeemable on the date of such termination to the extent necessary so that one-third of Grantee’s Future Incentive Units in each such issuance will have become fully vested, non-forfeitable and non-redeemable as of such date and (iii) if Grantee’s employment with Employer is terminated for any reason other than by Employer without Cause or by Grantee with Good Reason, then, subject to the vesting principles set forth in this Schedule B applicable to Grantee’s Future Incentive Units, all of Grantee’s unvested Future Incentive Units shall be forfeited.
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ANNEX I
ENDEAVOR OPERATING COMPANY, LLC
Section 83(b) Election
Background Information
Attached are materials which may be used to make an election under Section 83(b) (“Section 83(b) Election”) of the Internal Revenue Code with respect to your acquisition of Profits Units (the “Company Interest”) of Endeavor Operating Company, LLC, a Delaware limited liability company (the “Company”). (For tax purposes, your Company Interest is treated as an interest in a partnership.) One copy of the election (along with the letters to the Company and the Internal Revenue Service) must be provided to Xxxx Xxxxxxxx at the Company and the Internal Revenue Center (please see the attached chart for the appropriate Internal Revenue Service Center) (by overnight FedEx or UPS) no later than 30 days after the date of grant.
The award agreement pursuant to which your Company Interests will be acquired requires you to make a Section 83(b) Election with respect to the Company Interests. The purpose of the Section 83(b) Election is to make sure that you are treated for tax purposes as owning your Company Interests on the date of grant. Otherwise, you might be treated as receiving a portion of your Company Interests on each applicable vesting date, and you would then be required to recognize ordinary compensation income on each vesting date, in amounts equal to the fair market value of the portion of your Company Interests that vests on each vesting date (minus what you paid for that portion, which in this case is $0).
By making the Section 83(b) Election you are electing to be taxed as of the date of grant on the value of the Company Interest you received on the date of grant in excess of the amount you paid. The Company believes that the fair market value of your Company Interest should be equal to $0 on the date of grant and therefore will not be reporting you as having any compensation income on account of the transfer on the date of grant and your related Section 83(b) Election. You should consult your own tax advisor in these matters.
SECTION 83(b) ELECTION INSTRUCTIONS
ENDEAVOR OPERATING COMPANY, LLC
To make an election under Section 83(b) of the Internal Revenue Code in connection with your receipt, for tax purposes, of Company Interests representing an interest in Endeavor Operating Company, LLC (the “Company”), you should add your Social Security Number, date and sign all three copies of the enclosed Section 83(b) Election Form and mail as indicated no later than 30 days after the date of grant.
| 1. | One copy of the signed Section 83(b) Election Form should be mailed to the appropriate Internal Revenue Service Center (please see the attached chart for the appropriate Internal Revenue Service Center), certified mail, return receipt requested, using the attached letter, which you should sign and date. |
| 2. | One copy of the signed Section 83(b) Election Form should be mailed to the Company, using the attached letter to Xxxx Xxxxxxxx, who is authorized to receive the copy on behalf of all of the persons entitled to receive a copy of the election (as described in Section 8 of the Section 83(b) Election Form). |
| 3. | One copy of the Section 83(b) Election Form should be retained by you for your records. |
| 4. | If you are not the transferee of the property—for example, if the property was transferred to a family trust—then you are also obliged to provide a copy of your Section 83(b) Election to the transferee of the property within 30 days of the date of grant. |
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IRS SERVICE CENTERS
for
83(b) Election Forms
(Based on filing locations for individual Federal Income Tax Returns filed in 2019)
Questions: 0-000-000-0000
| If your tax residence is: | ||
| Alabama, Georgia, Kentucky, New Jersey, | Department of the Treasury | |
| North Carolina, South Carolina, Tennessee, | Internal Revenue Service | |
| Virginia | Kansas City, MO 64999-0002 | |
| Florida, Louisiana, Mississippi, Texas | Department of the Treasury | |
| Internal Revenue Service | ||
| Austin, TX 73301-0002 | ||
| Alaska, Arizona, California, Colorado, Hawaii, | Department of the Treasury | |
| Idaho, New Mexico, Nevada, Oregon, Utah, | Internal Revenue Service | |
| Washington, Wyoming | Fresno, CA 93888-0002 | |
| Arkansas, Illinois, Indiana, Iowa, Kansas, | Department of the Treasury | |
| Michigan, Minnesota, Montana, Nebraska, | Internal Revenue Service | |
| North Dakota, Ohio, Oklahoma, South Dakota, | Fresno, CA 93888-0002 | |
| Wisconsin | ||
| Delaware, Maine, Massachusetts, Missouri | Department of the Treasury | |
| New Hampshire, New York, Vermont | Internal Revenue Service | |
| Kansas City, MO 64999-0002 | ||
| Connecticut, District of Columbia, Maryland, | Department of the Treasury | |
| Pennsylvania, Rhode Island, West Virginia | Internal Revenue Service | |
| Ogdex, XX 00000-0000 | ||
| X foreign country, U.S. possession or | Department of the Treasury | |
| territory*, or use an APO or FPO address, or | Internal Revenue Service | |
| file Form 2555, 2555-EZ, or 4563, or are a | Austxx, XX 00000-0000 | |
| xxal-status alien | USA | |
| * | Permanent residents of Guam should use: Department of Revenue and Taxation, Government of Guam, P.O. Xxx 00000, XXX, XX 00000; xxrmanent residents of the Northern Mariana Islands should use: Department of Finance, Division of Revenue and Taxation, Commonwealth of the Northern Mariana Islands, P.O. Xxx 0000, XXXX Xxxxxx, XX 00000; xxrmanent residents of the Virgin Islands should use: V.I. Bureau of Internal Revenue, 6115 Estate Xxxxx Bay, Suite 225, St. Xxxxxx, VI 00802. |
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SECTION 83(b) ELECTION FORM
ELECTION PURSUANT TO SECTION 83(b)
This election is being made pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury Regulation Section 1.83-2 promulgated thereunder.
| 1. | Taxpayer’s name: | Xxxxx Xxxxxxx | ||||
| Address: |
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| Social Security Number: | - - | |||||
| 2. | Property with respect to which the election is made: |
Future Incentive Units, representing an interest, treated for tax purposes as a partnership interest (the “Company Interest”), in Endeavor Operating Company, LLC (the “Company”), a Delaware limited liability company treated for tax purposes as a partnership. The Company Interest represents a membership interest in the Company as further described in the First Amended and Restated Limited Liability Company Agreement of Endeavor Operating Company, LLC (as amended, restated, modified or supplemented from time to time, the “LLC Agreement”) and as amended and restated from time to time thereafter.
| 3. | Date on which property was transferred: ______ |
| 4. | Taxable year for which such election is made: 2019 |
| 5. | Nature of the restriction or restrictions to which the property is subject: |
The Company Interest may be forfeited in whole or in part upon certain terminations of employment. The Company Interest may not be transferred, except as expressly provided in the LLC Agreement, or as approved by the board of directors of the Company. In addition, the Company Interest may under certain circumstances be subject to a requirement that the Company Interest be sold in connection with certain sales of the Company.
| 5. | The fair market value of the property at the time of transfer: |
The fair market value of the Company Interest at the time of transfer was $0, determined (i) without regard to lapse restrictions and (ii) in accordance with the principles set forth in Revenue Procedure 93-27.
| 7. | The amount paid for such property: $0 |
| 8. | In accordance with Treasury Regulations Section 1.83-2(d): |
Taxpayer has submitted a copy of this statement to the person(s) for whom services were performed (the Company and/or its subsidiaries).
| Dated: ______________, 2019 |
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| Xxxxx Xxxxxxx |
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Xxxxx Xxxxxxx
| __________ ___, 2018 | ||
| Department of the Treasury |
Re: Xxxxx Xxxxxxx—SSN: - -
Dear Sir or Madam:
Pursuant to Treasury Regulations Section 1.83-2(c) promulgated under Section 83 of the Internal Revenue Code of 1986, as amended (the “Code”), enclosed please find an election under Section 83(b) of the Code.
| Sincerely, |
|
|
| Xxxxx Xxxxxxx |
Enclosure
5
Xxxxx Xxxxxxx
| __________ ___, 2019 |
Endeavor Operating Company, LLC
9601 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Xxtention: Xxxx Xxxxxxxx
Re: Xxxxx Xxxxxxx—Section 83(b) Election
Dear Xx. Xxxxxxxx:
Pursuant to Treasury Regulations Section 1.83-2(d) promulgated under Section 83 of the Internal Revenue Code of 1986, as amended (the “Code”), enclosed please find a copy of an election under Section 83(b) of the Code. This notice is hereby given to Endeavor Operating Company, LLC for itself, and for its subsidiaries.
| Sincerely, |
|
|
| Xxxxx Xxxxxxx |
Enclosure
6
