EXHIBIT 10.17
AGREEMENT
AGREEMENT dated as of this July 31, 1997 between and among Xxxxxxxx
Holdings, L.L.C., a Delaware limited liability company (the "Company"),
BrightView Communications, Inc., a Delaware corporation ("BrightView"), Xxxxxxxx
Publishing Company, L.L.C., a Delaware limited liability company ("Publishing"),
Xxxxx X. Xxxxxxx, Xx. ("Xxxxxxx"), Xxxxxxxx X. Xxxxx ("Xxxxx"), Xxxxxx Xxxx
("Karu" and, collectively with Xxxxxxx and Bloch, the "Investors"), X. Xxxxxx
Xxxxxxxxxx ("Xxxxxxxxxx"), Xxxx Xxxxxx ("Xxxxxx") and Xxxxxxx X Xxxxxx ("Xxxxxx"
and collectively with Xxxxxxxxxx and Xxxxxx, the "Executives"). The Executives
and the Investors are referred to herein collectively as the "Holders" and each
is referred to herein individually as a "Holder." Capitalized terms contained
in this letter and not otherwise defined herein shall have the meanings ascribed
to such terms in the Amended and Restated Limited Liability Company Agreement of
Xxxxxxxx Holdings, L.L.C. dated as of September 30, 1996 (the "LLC Agreement").
Contemporaneously with the consummation of the transactions contemplated
hereby, the Company will approve the Xxxxxxxx Holdings, L.L.C. 1997 Long-Term
Equity Incentive Plan (the "Plan") and grant options to purchase Class A Common
Units of the Company (the "Options") to the persons and in the amounts set forth
on Schedule I hereto. Each of the Holders is the holder of certain Class B
Common Units and Class C Common Units. The Company and the Holders have
proposed that the Holders deliver all of such Class B Common Units and Class C
Common Units to the Company in exchange for newly issued Class D Common Units of
Holdings on the terms set forth in the LLC Agreement as amended and restated as
of the date hereof set forth in Exhibit A hereto (the "Amended LLC Agreement").
Each of the Executives obtained his Class B Common Units and Class C Common
Units pursuant to, and holds such units in accordance with the terms of, an
Executive Securities Purchase and Employment Agreement dated as of September 30,
1996 with the Company, BrightView and Publishing (each, as amended, an
"Employment Agreement").
In consideration of the mutual agreements set forth herein and other good
and valuable consideration the receipt of which is hereby acknowledged, each of
the parties hereto hereby agrees as follows:
1. Executive Carry Securities and Outstanding Class A Common Units. All of
the Class A Common Units issuable upon exercise of the Options shall be
deemed to be outstanding for purposes of the definitions of "30% IRR
Executive Percentage" and "35% IRR Executive Percentage" set forth in
the LLC Agreement, and the portion of such Class A Common Units
identified on Schedule I attached hereto as "Executive Carry Securities"
shall, upon designation thereof as "Executive Carry Securities" by the
Xxxxxx Xxxxx Majority Holders, be deemed to be Executive Carry
Securities for purposes of the LLC Agreement.
2. Amended LLC Agreement. Pursuant to Section 12.5 of the LLC Agreement,
the undersigned hereby acknowledge and agree to the form and terms of
the Amended LLC Agreement.
3. Exchange of Class B Common Units and Class C Common Units for Class D
Common Units. Each of the Holders agrees that, effective upon the
effectiveness of the Amended LLC Agreement, all of such Holder's Class B
Common Units and Class C Common Units as of the date hereof shall be
automatically converted into Class D Common Units of the series and in
the amount set forth for such Holder on Schedule II attached hereto (the
"Exchange").
4. Vesting of Class D Common Units. Each of the Executives agrees that the
Class D Common Units issued to such Executive are "Executive Securities"
and "Vesting Executive Securities" within the meaning of such
Executive's Employment Agreement, are subject to the Repurchase Option
set forth in such agreement and, notwithstanding any other provision of
the Employment Agreement, such Class D Common Units are Unvested
Securities and not Vested Securities (for purposes of such Executive's
Employment Agreement) and shall become vested, within the meaning
thereof, only as set forth in this paragraph 4. Without limiting the
foregoing, (i) the first two sentences of paragraph 2(b) of each of the
Employment Agreements is hereby deleted therefrom, and (ii) any
securities received by an Executive in exchange for, upon conversion of
or otherwise in respect of such Class D Common Units (in connection with
any recapitalization, reorganization, merger, consolidation or any other
change in the structure or ownership interests of the Company, including
but not limited to an IPO Roll-up or any other exchange or contribution
of substantially all of the equity securities of the Company for
securities of any other entity), shall continue to be Vesting Executive
Securities. For purposes hereof, "IPO Roll-up" means a transaction
approved by the Board of Directors of BrightView pursuant to which
holders of all or a substantially portion of the equity interests in the
Company would contribute such interests to BrightView in exchange for
capital stock of BrightView or another transaction pursuant to which all
or a substantial part of the Company's equity interests would be
converted in to capital stock of BrightView, in connection with an
offering and sale to the public of shares of capital stock of BrightView
pursuant to a registration statement filed with the U.S. Securities and
Exchange Commission under the Securities Act of 1933, as amended.
(a) The Class D Common Units issued to an Executive will fully
vest on the fifth anniversary of the date hereof, if and only if such
Executive is, and has been, continuously employed by the Company from
the date of this Agreement through such date; provided that if an
Executive's period of such continuous employment by the Company is
terminated upon the death or Disability of such Executive while an
employee of the Company, the Class D Common Units held by such Executive
shall upon such termination of employment be deemed to be Vested
Securities, for purposes of such Executive's Employment Agreement.
(b) If an Executive has been continuously employed by the Company
from the date of this Agreement until a Public Offering, then from and
after the date of consummation of the Public Offering (the "IPO Date")
such Executive's Class D Common Units shall commence to vest (to the
extent not previously vested) in accordance with the following
accelerated schedule: so long as such Executive has remained
continuously employed by the Company from the date of this Agreement,
2
(i) 33 1/3% of such Executive's Class D Common Units will vest upon
each of the first, second and third anniversaries of the IPO Date, and
(ii) as of any date other than an anniversary of the IPO Date, the
cumulative percentage of such Executive's Class D Common Units to
become vested shall be determined on a pro rata basis according to the
number of days elapsed since the IPO Date or the prior anniversary
thereof, if more recent. For purposes hereof, "Public Offering" means
any offering by the Company or any successor entity to the Company
(pursuant to a Reorganization or IPO Roll-up, as defined in the Plan)
of its capital stock or equity securities to the public pursuant to an
effective registration statement under the Securities Act, as then in
effect, or any comparable statement under any similar federal statute
then in force.
(c) If an Executive has been continuously employed by the Company
from the date of this Agreement until a Sale of the Company, the
portion of such Executive's Class D Common Units which has not become
vested at the date of such event shall immediately vest with respect
to 100% of such Executive's Class D Common Units simultaneously with
the consummation of the Sale of the Company.
(d) Within 30 days after the issuance to each Executive of the
Class D Common Units, such Executive shall make an effective election
with respect to such units with the Internal Revenue Service under
Section 83(b) of the Internal Revenue Code and the regulations
promulgated thereunder in a form mutually acceptable to the Company
and such Executive.
5. Additional Agreements. Each of the Holders agrees that the Class D
Common Units issued to such Holder shall be subject to the
restrictions set forth in the Securityholders Agreement, as amended,
in the same manner and to the same effect as the Class B Common Units
and Class C Common Units held by such Holder. Each of the Investors
also agrees that the Class D Common Units issued to such Investor
shall be subject to the restrictions set forth in each other agreement
to which such Holder is a party, to the same extent as the Class B
Common Units and Class C Common Units held by such Investor are
subject to such restrictions prior to the Exchange.
6. Agreement Governs. Notwithstanding any provision of any Employment
Agreement to the contrary, each of the Executives agrees that, to the
extent that any provision of this Agreement is inconsistent with any
provision of such Executive's Employment Agreement, the provisions of
this Agreement shall control and supersede such inconsistent provision
of such Executive's Employment Agreement.
7. Miscellaneous. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more
than one party, but all of which
3
taken together shall constitute one and the same Agreement. Each of the
Holders agrees that at any time and from time to time upon the written
request of the Company, such Holder shall execute and deliver such further
documents and do such further acts and things as the Company may reasonably
request in order to effect the purposes of this Agreement. None of the
terms or provisions of this Agreement may be waived, altered, modified or
amended except by an instrument in writing, duly executed by the parties
hereto. This Agreement and all obligations of the Holders hereunder shall
together with the rights and remedies of the Company hereunder, inure to
the benefit of the Company and its successors and assigns. This Agreement,
those documents expressly referred to herein and other documents of even
date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
* * * * *
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of July 31, 1997.
XXXXXXXX HOLDINGS, L.L.C.
By: BRIGHTVIEW COMMUNICATIONS GROUP, INC.
Its: MANAGING MEMBER
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Chief Executive Officer
BRIGHTVIEW COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Chief Executive Officer
XXXXXXXX PUBLISHING COMPANY, L.L.C.
By: Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
/s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxxx X. Xxxxx
/s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx
/s/ X. Xxxxxx Xxxxxxxxxx
-------------------------------------
X. Xxxxxx Xxxxxxxxxx
/s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx X Xxxxxx
-------------------------------------
Xxxxxxx X Xxxxxx
