EXHIBIT 10.5
SENIOR MANAGEMENT AGREEMENT
---------------------------
This SENIOR MANAGEMENT AGREEMENT (this "Agreement") is made as of
---------
August 17, 1999, between ZEFER Corp., a Delaware corporation (the "Company"),
-------
and Xxxxxx X. Xxxx ("Executive").
---------
The Company and Executive desire to enter into an agreement pursuant
to which Executive will purchase, and the Company will sell, up to 600,000
shares of the Company's Common Stock, par value $.01 per share (the "Common
------
Stock"). All shares of Common Stock acquired by Executive hereunder are
-----
referred to herein as "Executive Stock." In addition, the Company desires to
---------------
employ the Executive and the Executive desires to be employed by the Company.
Certain definitions are set forth in Section 10 of this Agreement.
The execution and delivery of this Agreement by the Company and
Executive was contemplated as a condition to the purchase of shares of Common
Stock and shares of the Class A Preferred by GTCR Fund VI, L.P., a Delaware
limited partnership ("GTCR"), GTCR VI Executive Fund, L.P., a Delaware limited
----
partnership ("Executive Fund") and GTCR Associates VI, a Delaware general
--------------
partnership ("Associates Fund") (each an "Investor" and collectively, the
--------------- --------
"Investors") pursuant to a purchase agreement between the Company and the
----------
Investors dated as of March 23, 1999 (the "Purchase Agreement"). Certain
------------------
provisions of this Agreement are intended for the benefit of, and will be
enforceable by, the Investors.
In consideration of the mutual covenants and promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by the parties hereto, the parties agree as follows:
PROVISIONS RELATING TO EXECUTIVE STOCK
1. Purchase and Sale of Executive Stock.
------------------------------------
(a) Upon execution of this Agreement, Executive will purchase, and
the Company will sell, 600,000 shares of Common Stock at a price of $0.17 per
share. To the extent that the fair market value of the common stock exceeds
$0.17 per share, the Company will make a grossed-up "make whole" payment to you
for the amount of taxes due on your purchase as a result of your 83(b) election.
The Company will deliver to Executive the certificates representing such
Executive Stock, and Executive will deliver to the Company a cashier's or
certified check or wire transfer of funds in the aggregate amount of $21,445.50
and a promissory note in the form of Exhibit A attached hereto in an aggregate
---------
principal amount of $80,554.50 (the "Executive Note").
--------------
(b) Within 30 days after the date hereof, Executive will make an
effective election with the Internal Revenue Service under Section 83(b) of the
Internal Revenue Code and the regulations promulgated thereunder in the form of
Exhibit B attached hereto.
---------
(c) Until the occurrence of a Sale of the Company or a Public
Offering, all certificates evidencing shares of Executive Stock shall be held by
the Company for the benefit of the Executive and the other holder(s) of
Executive Stock. Upon the occurrence of a Sale of the Company or a Public
Offering, the Company will return the certificates for the Executive Stock to
the record holders thereof.
(d) In connection with the purchase and sale of the Executive Stock,
Executive represents and warrants to the Company that:
(i) The Executive Stock to be acquired by Executive pursuant to
this Agreement will be acquired for Executive's own account and not with a
view to, or intention of, distribution thereof in violation of the
Securities Act, or any applicable state securities laws, and the Executive
Stock will not be disposed of in contravention of the Securities Act or any
applicable state securities laws.
(ii) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Executive Stock.
(iii) Executive is able to bear the economic risk of her
investment in the Executive Stock for an indefinite period of time because
the Executive Stock has not been registered under the Securities Act and,
therefore, cannot be sold unless subsequently registered under the
Securities Act or an exemption from such registration is available.
(iv) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Executive Stock and has had full access to such other information
concerning the Company as he has requested.
(v) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Executive does not
and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which Executive is a party or any judgment, order
or decree to which Executive is subject.
(vi) Executive has not and will not take any action that will
conflict with, violate or cause a breach of any noncompete, nonsolicitation
or confidentiality agreement to which Executive is a party to or by which
Executive is bound.
(vii) Executive is a resident of the State of Massachusetts.
(e) As an inducement to the Company to issue the Executive Stock to
Executive, and as a condition thereto, Executive acknowledges and agrees that
neither the issuance of the
Executive Stock to Executive nor any provision contained herein shall entitle
Executive to remain in the employment of the Company or any of its Subsidiaries
or affect the right of the Company to terminate Executive's employment at any
time for any reason, subject, however, to the terms of this Agreement.
(f) Concurrently with the execution of this Agreement, Executive
shall execute in blank ten stock transfer powers in the form of Exhibit C
---------
attached hereto (the "Stock Powers") with respect to the Executive Stock and
------------
shall deliver such Stock Powers to the Company. The Stock Powers shall authorize
the Company to assign, transfer and deliver the shares of Executive Stock to the
appropriate acquiror thereof pursuant to Section 3 below or Section 5 of the
Stockholders Agreement and under no other circumstances.
2. Vesting of Executive Stock.
--------------------------
(a) All of the shares of Executive Stock acquired hereunder shall be
subject to vesting in the manner specified in this Section 2. Except as
otherwise provided in Sections 2(b) and 2(c) below, the Executive Stock will
become vested in accordance with the following schedule (the "Vesting
-------
Schedule"), if as of each such date Executive is still employed by the Company
---------
or any of its Subsidiaries:
Date Cumulative Percentage of
----
Executive Stock to be Vested
----------------------------
March 31, 2000 20%
March 31, 2001 40%
March 31, 2002 60%
March 31, 2003 80%
March 31, 2004 100%
(b) After an initial Public Offering, the above Vesting Schedule
shall remain effective until the end of the quarter in which the Public Offering
occurred (the "Modification Date"), at which time the Vesting Schedule shall be
-----------------
modified such that, so long as Executive is still employed by the Company or any
of its Subsidiaries, the Executive Stock will vest as follows:
(i) If the Modification Date is June 30, then an additional 5%
of Holder Stock will vest on such Modification Date and an additional 5%
of Holder Stock will vest on each subsequent September 30, December 31,
March 31 and June 30 so that the Holder Stock will be 100% vested on
March 31, 2004.
(ii) If the Modification Date is September 30, then an
additional 10% of Holder Stock will vest on such Modification Date and an
additional 5% of Holder
-3-
Stock will vest on each subsequent December 31, March 31, June 30 and
September 30 so that the Holder Stock will be 100% vested on March 31,
2004.
(iii) If the Modification Date is December 31, then an additional
15% of Holder Stock will vest on such Modification Date and an additional
5% of Holder Stock will vest on each subsequent March 31, June 30,
September 30 and December 31 so that the Holder Stock will be 100% vested
on March 31, 2004.
(iv) If the Modification Date is March 31, then an additional 5%
of Executive Stock will vest on each subsequent June 30, September 30,
December 31 and March 31 so that the Executive Stock will be 100% vested
on March 31, 2004.
(c) Upon the occurrence of a Transaction, all shares of Executive Stock
which have not yet vested shall automatically vest one business day
prior to the time of such event. The term "Transaction" shall mean (i)
-----------
a Sale of the Company or (ii) the liquidation, dissolution or winding
up of the Company. Shares of Executive Stock which have become vested
are referred to herein as "Vested Shares" and all other shares of
-------------
Executive Stock are referred to herein as "Unvested Shares."
---------------
(d) In the event that the Executive is separated by the Company without
Cause or the Executive resigns for Good Reason on or before March 31,
2000, then 20% of the Executive Stock shall become vested one day
prior to such separation and, notwithstanding anything herein to the
contrary, when such 20% of Executive Stock becomes vested under this
or any other provision of this agreement, such shares shall not be
subject to the provisions of Section 3 hereof.
3. Repurchase Option.
-----------------
(a) In the event (i) Executive ceases to be employed by the
Company and its Subsidiaries for any reason (the "Separation") or (ii) Executive
----------
fails to make any principal or interest payment under the Executive Note after
such payment becomes due and after giving effect to any applicable grace period
(a "Triggering Event"), the Executive Stock (whether held by Executive or one or
----------------
more of Executive's transferees, other than the Company and Investors) will be
subject to repurchase pursuant to the terms and conditions set forth in this
Section 3 (the "Repurchase Option").
-----------------
(b) In the event of a Separation, (i) the purchase price for
each Unvested Share of Executive Stock will be Executive's Original Cost for
such share and (ii) the purchase price for each Vested Share of Executive Stock
will be the Fair Market Value for such share as at the date of the Separation;
provided, however, that if Executive's employment is terminated with Cause, the
-------- -------
purchase price for each Vested Share of Executive Stock will be Executive's
Original Cost for such share. Notwithstanding anything in this Section 3 to the
contrary, upon a Triggering Event (even if there is also a Separation), the
purchase price for each share of Executive Stock (whether a Vested Share or
Unvested Share) will be Executive's Original Cost for such shares.
-4-
(c) The Company may elect to purchase all or any portion of the
Unvested Shares or the Vested Shares by delivering written notice (the
"Repurchase Notice") to the holder or holders of the Executive Stock within 120
-----------------
days after the Separation or Triggering Event. The Repurchase Notice will set
forth the number of Unvested Shares and Vested Shares to be acquired from each
holder, the aggregate consideration to be paid for such shares and the time and
place for the closing of the transaction. The number of shares to be repurchased
by the Company shall first be satisfied to the extent possible from the shares
of Executive Stock held by Executive at the time of delivery of the Repurchase
Notice. If the number of shares of Executive Stock then held by Executive is
less than the total number of shares of Executive Stock which the Company has
elected to purchase, the Company shall purchase the remaining shares elected to
be purchased from the other holder(s) of Executive Stock under this Agreement,
pro rata according to the number of shares of Executive Stock held by such other
holder(s) at the time of delivery of such Repurchase Notice (determined as
nearly as practicable to the nearest share). The number of Unvested Shares and
Vested Shares to be repurchased hereunder will be allocated among Executive and
the other holders of Executive Stock (if any) pro rata according to the number
of shares of Executive Stock to be purchased from such person.
(d) If for any reason the Company does not elect to purchase all
of the Executive Stock pursuant to the Repurchase Option, all other executives
who are parties to an agreement with the Company which is substantially similar
in form and substance to this Agreement (each a "Senior Manager", and
--------------
collectively, the "Senior Management") on the date of the Separation or
-----------------
Triggering Event and the Investors shall be entitled to exercise the Repurchase
Option for all or any portion of the shares of Executive Stock the Company has
not elected to purchase (the "Available Shares"). As soon as practicable after
----------------
the Company has determined that there will be Available Shares, but in any event
within 90 days after the Separation or Triggering Event, the Company shall give
written notice (the "Option Notice") to the Senior Management and Investors
-------------
setting forth the number of Available Shares and the purchase price for the
Available Shares. Senior Management and the Investors may elect to purchase any
or all of the Available Shares by giving written notice to the Company within
one month after the Option Notice has been given by the Company. If Senior
Management and the Investors elect to purchase an aggregate number of shares
greater than the number of Available Shares, the Available Shares shall be
allocated among Senior Management and the Investors based upon the number of
shares of Common Stock owned by each Senior Manager and each Investor on a fully
diluted basis. As soon as practicable, and in any event within ten days, after
the expiration of the one-month period set forth above, the Company shall notify
each holder of Executive Stock as to the number of shares being purchased from
such holder by the Senior Management and the Investors (the "Supplemental
------------
Repurchase Notice"). At the time the Company delivers the Supplemental
-----------------
Repurchase Notice to the holder(s) of Executive Stock, the Company shall also
deliver written notice to each Senior Manager and each Investor setting forth
the number of shares such Senior Manager and such Investor is entitled to
purchase, the aggregate purchase price and the time and place of the closing of
the transaction. The number of Unvested Shares and Vested Shares to be
repurchased hereunder shall be allocated among the Company, Senior Management
and the Investors pro rata according to the number of shares of Executive Stock
to be purchased by each of them.
-5-
(e) The closing of the purchase of the Executive Stock pursuant
to the Repurchase Option shall take place on the date designated by the Company
in the Repurchase Notice or Supplemental Repurchase Notice, which date shall not
be more than one month nor less than five days after the delivery of the later
of either such notice to be delivered. The Company will pay for the Executive
Stock to be repurchased by it pursuant to the Repurchase Option with (i) a check
or wire transfer of funds for (A) any shares of Executive Stock to be
repurchased at Executive's Original Cost and (B) in the case of Executive Stock
to be repurchased at Fair Market Value, that portion of such Executive Stock
which is equal to the Executive's Original Cost, and (ii) in the case of
Executive Stock to be repurchased at Fair Market Value, a subordinate note or
notes for that portion of such Executive Stock which exceeds the Executive's
Original Cost; it being understood and agreed that such note or notes shall be
payable in up to two annual installments beginning on the first anniversary of
the closing of such repurchase and bearing interest (payable quarterly) at a
rate per annum equal to the prime rate as published in The Wall Street Journal
-----------------------
from time to time. Notwithstanding anything in this Section 3 to the contrary,
any amounts to be paid by the Company with a check or wire transfer of funds
pursuant to this Section 3(e) shall first be reduced (on a dollar for dollar
basis) by all amounts outstanding under any bona fide debts owed by Executive to
the Company. Each Senior Manager and each Investor will pay for the Executive
Stock to be purchased by each of them pursuant to the Repurchase Option with a
check or wire transfer of funds. The Company, the Senior Management and the
Investors will be entitled to receive customary representations and warranties
from the sellers regarding each seller's title to such Executive Stock.
(g) Notwithstanding anything to the contrary contained in this
Agreement, if the Fair Market Value of a share of Executive Stock is finally
determined to be an amount at least 10% greater than the per share repurchase
price for such share of Executive Stock in the Repurchase Notice or in the
Supplemental Repurchase Notice, each of the Company and the Investors shall have
the right to revoke its exercise of the Repurchase Option for all or any portion
of the Executive Stock elected to be repurchased by it by delivering notice of
such revocation in writing to the holders of Executive Stock during the thirty-
day period beginning on the date that the Company and/or the Investors are given
written notice that the Fair Market Value of a share of Executive Stock was
finally determined to be an amount at least 10% greater than the per share
repurchase price for Executive Stock set forth in the Repurchase Notice or in
the Supplemental Repurchase Notice.
(h) The provisions of this Section 3 shall terminate with
respect to Vested Shares upon consummation of a Public Offering or the
occurrence of a Transaction.
4. Restrictions on Transfer of Executive Stock.
-------------------------------------------
(a) Transfer of Executive Stock. The holder of Executive Stock
---------------------------
shall not Transfer any interest in any shares of Executive Stock, except
pursuant to (i) the provisions of Section 3 hereof, (ii) the provisions of
Section 3 of the Stockholders Agreement (a "Participating Sale"), (iii) an
------------------
Approved Sale (as defined in Section 5 of the Stockholders Agreement), or (iv)
the provisions
-6-
of Section 4(b) below.
(b) Certain Permitted Transfers. The restrictions in this
---------------------------
Section 4 will not apply with respect to any Transfer of Executive Stock if made
(i) pursuant to applicable laws of descent and distribution or to such Person's
legal guardian in the case of any mental incapacity or among such Person's
Family Group, or (ii) at a time when (A) the Common Stock of the Company has
been trading for at least 45 consecutive days (including the day immediately
preceding such Transfer) at a price that exceeds the initial Public Offering
price by at least 20% and (B) the Common Stock bid and asked price on the day of
such Transfer was at least 20% greater than the initial Public Offering price,
but in the case of this clause (ii) only an amount of shares per calender year
up to the lesser of (x) the number of Vested Shares owned by Executive at the
time of such Transfer and (y) 10% of the total number of shares of Common Stock
owned by Executive at the time of the Company's initial Public Offering, or
(iii) at such time as the Investors sell shares of Common Stock in a Public
Sale, but in the case of this clause (iii) only an amount of shares (the
"Transfer Amount") equal to the lesser of (C) the number of Vested Shares of
---------------
Common Stock owned by Executive at the time of such Transfer and (D) the number
of shares of Common Stock owned by Executive multiplied by a fraction (the
"Transfer Fraction"), the numerator of which is the number of shares of Common
-----------------
Stock sold by the Investors in such Public Sale and the denominator of which is
the total number of shares of Common Stock held by the Investors prior to the
Public Sale; provided that, if at the time of a Public Sale of shares by the
-------- ----
Investors, Executive chooses not to Transfer the Transfer Amount, Executive
shall retain the right to Transfer an amount of Executive Stock at a future date
equal to the lesser of (x) the number of Vested Shares owned by Executive at
such future date and (y) the number of shares of Executive Stock owned by
Executive at such future date multiplied by the Transfer Fraction; provided
--------
further, that at any particular point in time during any given calendar year the
-------
number of shares of Common Stock which the Executive has a right to Transfer
pursuant to clause (ii) above shall be reduced by the number of shares of Common
Stock which the Executive has Transferred in such calendar year pursuant to
clause (iii) above and the number of shares of Common Stock which the Executive
has a right to Transfer pursuant to clause (iii) above shall be reduced by the
number of shares of Common Stock which the Executive has Transferred in such
calendar year pursuant to clause (ii) above. Notwithstanding anything in this
Section 4 to the contrary, the restrictions contained in this Section 4 will
continue to be applicable to the Executive Stock after any Transfer of the type
referred to in clause (i) and the transferees of such Executive Stock will agree
in writing to be bound by the provisions of this Agreement. Any transferee of
Executive Stock pursuant to a transfer in accordance with the provisions of this
Section 4(b)(i) is herein referred to as a "Permitted Transferee." Upon the
--------------------
transfer of Executive Stock pursuant to this Section 4(b), the transferring
Executive Stockholder will deliver a written notice (a "Transfer Notice") to the
---------------
Company. In the case of a Transfer pursuant to clause (i) hereof, the Transfer
Notice will disclose in reasonable detail the identity of the Permitted
Transferee(s). In addition, following the completion of an initial Public
Offering, Executive, in his sole discretion, may pledge up to $2 million worth
of Vested Shares as collateral for a loan so long as the pledgee of such stock
and the Executive enter into a pledge agreement in form and substance reasonably
satisfactory to the Board of Directors of the Company (the "Board"), pursuant to
which pledgee, among other things, agrees that pledgee may only sell such stock
in a Public Sale.
-7-
(c) Termination of Restrictions. The restrictions set forth in
---------------------------
this Section 4 will continue with respect to each share of Executive Stock until
the earlier of (i) the date on which such share of Executive Stock has been
transferred in a Public Sale permitted by this Section 4, or (ii) the
consummation of an Approved Sale.
5. Additional Restrictions on Transfer of Executive Stock.
------------------------------------------------------
(a) Legend. The certificates representing the Executive Stock will
------
bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED AS OF AUGUST 17, 1999, HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN
REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A
SENIOR MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND AN EXECUTIVE
OF THE COMPANY DATED AS OF AUGUST 17, 1999. A COPY OF SUCH
AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) Opinion of Counsel. No holder of Executive Stock may sell,
------------------
transfer or dispose of any Executive Stock (except pursuant to an effective
registration statement under the Securities Act) without first delivering to the
Company an written notice describing in reasonable detail the proposed transfer,
together with an opinion of counsel (reasonably acceptable in form and substance
to the Company) that neither registration nor qualification under the Securities
Act and applicable state securities laws is required in connection with such
transfer. In addition, if the holder of the Executive Stock delivers to the
Company an opinion of counsel that no subsequent transfer of such Executive
Stock shall require registration under the Securities Act, the Company shall
promptly upon such contemplated transfer deliver new certificates for such
Executive Stock which do not bear the Securities Act portion of the legend set
forth in Section 5(a). If the Company is not required to deliver new
certificates for such Executive Stock not bearing such legend, the holder
thereof shall not transfer the same until the prospective transferee has
confirmed to the Company in writing its agreement to be bound by the conditions
contained in this Section 5.
-8-
PROVISIONS RELATING TO EMPLOYMENT
6. Employment. The Company agrees to employ Executive and Executive
----------
accepts such employment for the period beginning the date hereof and ending upon
his separation pursuant to Section 6(c) hereof (the "Employment Period").
-----------------
(a) Position and Duties.
-------------------
(i) During the Employment Period, Executive shall serve as
Executive Vice President for Client and Market Development and shall
have the normal duties, responsibilities and authority of such office
subject to the power of the President and Chief Executive Officer of
the Company (the "President") to expand or limit such duties,
----------
responsibilities and authority.
(ii) Executive shall report to the President and Executive shall
devote his/her best efforts and his/her full business time and attention to
the business and affairs of the Company and its subsidiaries.
(b) Salary, Bonus and Benefits. During the Employment Period, the
--------------------------
Company will pay the Executive a base salary (the "Annual Base Salary") of
------------------
$300,000 per annum, subject to any increase as determined by the President.
Executive's Annual Base Salary for any partial year will be prorated based upon
the number of days elapsed in such year. During the Employment Period, the
Executive shall also be eligible for an annual bonus in an amount not to exceed
66.67% of Executive's then applicable Annual Base Salary for such year; such
bonus to be determined by the President based upon the Company's achievement of
budgetary and other objectives set by the President. In addition, during the
Employment Period, the Company will provide the Executive with (i) medical
insurance benefits, and (ii) such other benefits approved by the President and
made available to the Company's senior management.
(c) Events of Separation. The Employment Period will continue until
--------------------
Executive's resignation, disability (as determined by the President in his good
faith judgment) or death or until the President decides to terminate Executive's
employment.
(d) Separation Without Cause; Resignation for Good Reason. In the
-----------------------------------------------------
event that (i) the Company terminates the Executive's employment without Cause
or (ii) the Executive resigns from his/her position with the Company for Good
Reason, then the Executive shall be entitled to the following:
(i) the Company shall pay to the Executive, in a lump sum within
15 days after such termination or resignation, an amount equal to the sum
of (A) any unpaid base salary owed to the Executive for services performed
prior to such termination, plus (B) the amount of any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in each case to the extent
not
-9-
previously paid (the obligations set forth in clauses (A) and (B) are
collectively referred to herein as the "Accrued Obligations");
-------------------
(ii) the Company shall pay each month to the Executive,
beginning on the date of the first normal executive payroll of the Company
that occurs more than 30 days after such termination or resignation, an
amount equal to one-twelfth (1/12) of the Executive's Annual Base Salary as
of the date immediately before such termination or resignation; provided
--------
however, that such payments shall immediately cease upon the earliest to
-------
occur of (x) the Executive's death and (y) the six month anniversary of
such termination or resignation. Notwithstanding anything in this Section
6(d) to the contrary, in the event that the Executive becomes employed with
another employer, then the payments to be made by the Company pursuant to
this Section 6(d)(ii) shall be reduced (on a dollar for dollar basis) in an
amount equal to the cash compensation received by Executive from such
employer; and
(iii) the Company shall continue to provide medical insurance
benefits to the Executive and to the Executive's family at least equal to
those medical insurance benefits that would have been provided to them in
the absence of such termination or resignation; provided however, that such
-------- -------
payments shall immediately cease upon the earliest to occur of (x) the
Executive's death and (y) the six month anniversary of such termination or
resignation. Notwithstanding anything in this Section 6(d) to the
contrary, in the event that the Executive becomes employed with another
employer and is eligible for medical insurance benefits under another
employer-provided plan, then the medical insurance benefits to be provided
by the Company pursuant to this Section 6(d)(iii) shall be reduced to the
extent that the Executive and his/her family is eligible to receive medical
insurance benefits under such other employer-provided plan.
(e) Other Separations. In the event of a Separation other than a
-----------------
termination by the Company without cause or a resignation by the Executive for
Good Reason, the Company shall pay to the Executive (or his/her estate, if
applicable), in a lump sum in cash within 15 days after such Separation, an
amount equal to any Accrued Obligations.
7. Confidential Information. Executive acknowledges that the
------------------------
information, observations and data obtained by him during the course of his/her
performance under this Agreement concerning the business and affairs of the
Company and its affiliates are the property of the Company, including
information concerning acquisition opportunities in or reasonably related to the
Company's business or industry of which Executive becomes aware during the
Employment Period. Therefore, Executive agrees that he will not disclose to any
unauthorized person or use for his/her own account any of such information,
observations or data without the Company's written consent, unless and to the
extent that the aforementioned matters become generally known to and available
for use by the public other than as a result of Executive's acts or omissions to
act. Executive agrees to deliver to the Company at a Separation, or at any other
time the Company may request in writing, all memoranda, notes, plans, records,
reports and other documents (and copies thereof) relating to the business of the
Company and its affiliates (including, without limitation, all
-10-
acquisition prospects, lists and contact information) which he may then possess
or have under his/her control.
8. Noncompetition and Nonsolicitation. Executive acknowledges that
----------------------------------
in the course of his/her employment with the Company he will become familiar
with the Company's and its Subsidiaries' trade secrets and with other
confidential information concerning the Company and such Subsidiaries and that
his/her services will be of special, unique and extraordinary value to the
Company. Therefore, Executive agrees that:
(a) Noncompetition. During the Employment Period and for a period of
--------------
six months thereafter (the "Noncompete Period"), Executive shall not, within the
-----------------
United States, directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any manner engage in any internet
services business which directly competes with the business of the Company or
its Subsidiaries or any business in which the Company or any of its Subsidiaries
has requested and received information relating to the acquisition of such
business by the Company and the Subsidiaries prior to the Separation; provided
--------
that passive ownership of less than 5% of the outstanding stock of any publicly-
traded corporation shall not, in and of itself, be deemed to violate this
Section 8(a).
(b) Nonsolicitation. During the Noncompete Period, Executive shall
---------------
not directly or indirectly through another entity (i) induce or attempt to
induce any employee of the Company or its Subsidiaries to leave the employ of
the Company or such Subsidiary, or in any way interfere with the relationship
between the Company and any Subsidiary and any employee thereof, (ii) hire any
person who was an employee of the Company and any Subsidiary within 180 days
prior to the time such employee was hired by the Executive, (iii) induce or
attempt to induce any customer, supplier, licensee or other business relation of
the Company and any Subsidiary to cease doing business with the Company or such
Subsidiary or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company and any
Subsidiary or (iv) directly or indirectly acquire or attempt to acquire an
interest in any business relating to the business of the Company and any
Subsidiary and with which the Company and any Subsidiary has entertained
discussions or has requested and received information relating to the
acquisition of such business by the Company and any Subsidiary in the two-year
period immediately preceding a Separation.
(c) Enforcement. If, at the time of enforcement of Section 7 or this
-----------
Section 8, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
duration, scope or geographical area reasonable under such circumstances shall
be substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
duration, scope and area permitted by law. Because Executive's services are
unique and because Executive has access to confidential information, the parties
hereto agree that money damages would be an inadequate remedy for any breach of
this Agreement. Therefore, in the event a breach or threatened breach of this
Agreement, the Company or its successors or assigns may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance
-11-
and/or injunctive or other relief in order to enforce, or prevent any violations
of, the provisions hereof (without posting a bond or other security).
(d) Additional Acknowledgments. Executive acknowledges that the
--------------------------
provisions of this Section 8 are in consideration of: (i) employment with the
Company, (ii) the issuance of the Executive Stock and (iii) additional good and
valuable consideration as set forth in this Agreement. In addition, Executive
agrees and acknowledges that the restriction contained in Section 7 and this
Section 8 do not preclude Executive from earning a livelihood, nor do they
unreasonably impose limitations on Executive's ability to earn a living. In
addition, Executive agrees and acknowledges that the potential harm to the
Company of the non-enforcement of Section 7 and this Section 8 outweighs any
potential harm to Executive of its enforcement by injunction or otherwise.
Executive acknowledges that he has carefully read this Agreement and has given
careful consideration to the restraints imposed upon Executive by this
Agreement, and is in full accord as to their necessity for the reasonable and
proper protection of confidential and proprietary information of the Company now
existing or to be developed in the future. Executive expressly acknowledges and
agrees that each and every restraint imposed by this Agreement is reasonable
with respect to subject matter, time period and geographical area.
GENERAL PROVISIONS
10. Definitions.
-----------
"Affiliate" of an Investor means any direct or indirect general or
---------
limited partner of such Investor, or any employee or owner thereof, or any other
person, entity or investment fund controlling, controlled by or under common
control with such Investor, and will include, without limitation, its owners and
employees.
"Cause" means (i) the commission of a felony or a crime involving
-----
moral turpitude or the commission of any other material act or omission
involving dishonesty or fraud with respect to the Company or any of its
Subsidiaries or any of their customers or suppliers, (ii) conduct which brings
the Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure to perform duties of the
office held by Executive as reasonably directed by the President after written
notice and a reasonable opportunity to cure, (iv) gross negligence or willful
misconduct with respect to the Company or any of its Subsidiaries or (v) any
material breach of Section 6(a)(ii), 7 or 8 of this Agreement.
"Closing" shall have the meaning set forth in the Purchase Agreement.
-------
"Executive's Family Group" means Executive's spouse and descendants
------------------------
(whether natural or adopted), any trust solely for the benefit of Executive
and/or Executive's spouse and/or descendants and any retirement plan for the
Executive.
"Executive Stock" will continue to be Executive Stock in the hands of
---------------
any holder
-12-
other than Executive (except for the Company and the Investors and except for
transferees in a Public Sale), and except as otherwise provided herein, each
such other holder of Executive Stock will succeed to all rights and obligations
attributable to Executive as a holder of Executive Stock hereunder. Executive
Stock will also include shares of the Company's capital stock issued with
respect to Executive Stock by way of a stock split, stock dividend or other
recapitalization. Notwithstanding the foregoing, all Unvested Shares shall
remain Unvested Shares after any Transfer thereof.
"Fair Market Value" of each share of Executive Stock means the average
-----------------
of the closing prices of the sales of such Executive Stock on all securities
exchanges on which such Executive Stock may at the time be listed, or, if there
have been no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such day, or, if
on any day such Executive Stock is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York time, or, if on any day such Executive Stock is not quoted in the
NASDAQ System, the average of the highest bid and lowest asked prices on such
day in the domestic over-the-counter market as reported by the National
Quotation Bureau Incorporated, or any similar successor organization, in each
such case averaged over a period of 21 days consisting of the day as of which
the Fair Market Value is being determined and the 20 consecutive business days
prior to such day. If at any time such Executive Stock is not listed on any
securities exchange or quoted in the NASDAQ System or the over-the-counter
market, the Fair Market Value will be the fair value of such Executive Stock as
determined in good faith by the Board. If the Executive reasonably disagrees
with such determination, the Executive shall deliver to the Board a written
notice of objection within ten days after delivery of the Repurchase Notice (or
if no Repurchase Notice is delivered, then within ten days after delivery of the
Supplemental Repurchase Notice). Upon receipt of the Executive's written notice
of objection, the Board and the Executive will negotiate in good faith to agree
on such Fair Market Value. If such agreement is not reached within 30 days after
the delivery of the Repurchase Notice (or if no Repurchase Notice is delivered,
then within 30 days after the delivery of the Supplemental Repurchase Notice),
Fair Market Value shall be determined by an appraiser jointly selected by the
Board and the Executive, which appraiser shall submit to the Board and the
Executive a report within 30 days of its engagement setting forth such
determination. If the parties are unable to agree on an appraiser within 45 days
after delivery of the Repurchase Notice or the Supplemental Repurchase Notice,
within seven days, each party shall submit the names of four nationally
recognized investment banking firms, and each party shall be entitled to strike
two names from the other party's list of firms, and the appraiser shall be
selected by lot from the remaining four investment banking firms. The expenses
of such appraiser shall be borne by the party whose Fair Market Value
determination when subtracted from the appraiser's determination of Fair Market
Value has the greater absolute value; provided that, in the event that there is
no difference between each party's absolute value, then the expenses of such
appraiser shall be shared equally by the parties. The determination of such
appraiser as to Fair Market Value shall be final and binding upon all parties.
"GAAP" means United States generally accepted accounting principles as
----
in effect from time to time.
-13-
"Good Reason" means an action by the Company which results in (i) a
-----------
significant diminution of the duties of Executive from the standard duties of
senior executives of companies comparable to the Company, or (ii) a reduction of
the Executive's Annual Base Salary.
"Original Cost" means, with respect to each share of Common Stock
-------------
purchased hereunder, $.17 (as proportionately adjusted for all subsequent stock
splits, stock dividends and other recapitalizations).
"Person" means an individual, a partnership, a limited liability
------
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Offering" means the sale in an underwritten public offering
---------------
registered under the Securities Act of shares of the Company's Common Stock
approved by the Board.
"Public Sale" means (i) any sale pursuant to a registered public
-----------
offering under the Securities Act or (ii) any sale to the public pursuant to
Rule 144 promulgated under the Securities Act effected through a broker, dealer
or market maker (other than pursuant to Rule 144(k) prior to a Public Offering).
"Sale of the Company" means any transaction or series of transactions
-------------------
pursuant to which any person(s) or entity(ies) other than the Investor and its
Affiliates in the aggregate acquire(s) (i) capital stock of the Company
possessing the voting power (other than voting rights accruing only in the event
of a default, breach or event of noncompliance) to elect a majority of the
Company's board of directors (whether by merger, consolidation, reorganization,
combination, sale or transfer of the Company's capital stock, shareholder or
voting agreement, proxy, power of attorney or otherwise) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time.
"Stockholders Agreement" means the Stockholders Agreement of even date
----------------------
herewith among the Company and certain of its stockholders.
"Subsidiary" means any corporation of which the Company owns
----------
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
"Transfer" means to sell, transfer, assign, pledge or otherwise
--------
dispose of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law).
11. Notices. Any notice provided for in this Agreement must be in
-------
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt
-14-
requested) or sent by reputable overnight courier service (charges prepaid) to
the recipient at the address below indicated:
If to the Company:
-----------------
ZEFER Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
with copies to:
--------------
GTCR Fund VI, L.P.
GTCR VI Executive Fund, L.P.
GTCR Associates VI
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Xxxxxxx X. XxXxxx
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
If to the Executive:
-------------------
Xxxxxx X. Xxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
-15-
If to the Investors:
-------------------
GTCR Fund VI, L.P.
GTCR VI Executive Fund, L.P.
GTCR Associates VI
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Xxxxxxx X. XxXxxx
with a copy to:
--------------
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
12. General Provisions.
------------------
(a) Expenses. The Company agrees to pay the reasonable legal expenses
--------
of the Executive incurred in connection with the negotiation and execution of
this Agreement. In addition, expenses (including reasonable attorneys' fees)
incurred by the Executive in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding, unless otherwise
determined by the Outside Directors (as defined in that certain Stockholders
Agreement, dated as of March 23, 1999, by and among the Company, the Investors,
the Executive and certain other stockholders), upon receipt of an undertaking by
or on behalf of the Executive to repay such amount if it shall ultimately be
determined that the Executive is not entitled to indemnification by the Company.
(b) Transfers in Violation of Agreement. Any Transfer or attempted
-----------------------------------
Transfer of any Executive Stock in violation of any provision of this Agreement
shall be void, and the Company shall not record such Transfer on its books or
treat any purported transferee of such Executive Stock as the owner of such
stock for any purpose.
(c) Severability. Whenever possible, each provision of this Agreement
------------
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other
-16-
provision or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(d) Complete Agreement. 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.
(e) Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(f) Successors and Assigns. Except as otherwise provided herein, this
----------------------
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company, the Investors and their respective successors and
assigns (including subsequent holders of Executive Stock); provided that the
rights and obligations of Executive under this Agreement shall not be assignable
except in connection with a permitted transfer of Executive Stock hereunder.
(g) Choice of Law. The laws of Delaware shall govern all issues
-------------
concerning the relative rights of the Company and its stockholders and all other
questions concerning the construction, validity and interpretation of this
Agreement, without giving effect to any choice of law or other conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
(h) Remedies. Each of the parties to this Agreement (including the
--------
Investors) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorney's fees) caused by
any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may be
--------------------
amended and waived only with the prior written consent of the Company, the
Executive and the Majority Holders (as defined in the Purchase Agreement).
(j) Insurance. The Company, at its discretion, may apply for and
---------
procure in its own name and for its own benefit life and/or disability insurance
on Executive in any amount or amounts considered available. Executive agrees to
cooperate in any medical or other examination, supply any information, and to
execute and deliver any applications or other instruments in writing
-17-
as may be reasonably necessary to obtain and constitute such insurance.
Executive hereby represents that he has no reason to believe that her life is
not insurable at rates now prevailing for healthy persons of his/her age.
(k) Business Days. If any time period for giving notice or taking
-------------
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's chief executive office is located, the time period
shall be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
(l) Indemnification and Reimbursement of Payments on Behalf of
----------------------------------------------------------
Executive. The Company and its Subsidiaries shall be entitled to deduct or
---------
withhold from any amounts owing from the Company or any of its Subsidiaries to
the Executive any federal, state, local or foreign withholding taxes, excise
taxes, or employment taxes ("Taxes") imposed with respect to the Executive's
-----
compensation or other payments from the Company or any of its Subsidiaries or
the Executive's ownership interest in the Company, including, without
limitation, wages, bonuses, dividends, the receipt or exercise of stock options
and/or the receipt or vesting of restricted stock. The Executive shall indemnify
the Company and its Subsidiaries for any amounts paid with respect to any such
Taxes, together with any interest, penalties and related expenses thereto.
(m) Termination. This Agreement (except for the provisions of Section
-----------
7) shall survive a Separation and shall remain in full force and effect after
such Separation.
(n) Generally Accepted Accounting Principles; Adjustments of Numbers.
----------------------------------------------------------------
Where any accounting determination or calculation is required to be made under
this Agreement or the exhibits hereto, such determination or calculation (unless
otherwise provided) shall be made in accordance with generally accepted
accounting principles, consistently applied, except that if because of a change
in generally accepted accounting principles the Company would have to alter a
previously utilized accounting method or policy in order to remain in compliance
with generally accepted accounting principles, such determination or calculation
shall continue to be made in accordance with the Company's previous accounting
methods and policies. All numbers set forth herein which refer to share prices
or amounts will be appropriately adjusted to reflect stock splits, stock
dividends, combinations of shares and other recapitalizations affecting the
subject class of stock.
-18-
(o) Deemed Transfer of Executive Stock. If the Company (and/or the Investors
----------------------------------
and/or any other Person acquiring securities) shall make available, at the time
and place and in the amount and form provided in this Agreement, the
consideration for the Executive Stock to be repurchased in accordance with the
provisions of this Agreement, then from and after such time, the person from
whom such shares are to be repurchased shall no longer have any rights as a
holder of such shares (other than the right to receive payment of such
consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Company (and/or the Investors and/or any other Person acquiring securities)
shall be deemed the owner and holder of such shares, whether or not the
certificates therefor have been delivered as required by this Agreement.
(p) No Pledge or Security Interest. The purpose of the Company's
------------------------------
retention of the Executive's stock certificates and executed stock powers is
solely to facilitate the repurchase provisions set forth in Section 3 herein and
does not constitute a pledge by the Executive of, or the granting of a security
interest in, the underlying stock.
(q) Rights Granted to GTCR and its Affiliates. Any rights granted to
-----------------------------------------
GTCR and its Affiliates hereunder may also be exercised (in whole or in part) by
its designees (which may be Affiliates).
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Senior
Management Agreement on the date first written above.
ZEFER CORP.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxx
Executive Vice President and General Counsel
/s/ Xxxxxx X. Xxxx
--------------------------------------------
Xxxxxx X. Xxxx
Agreed and Accepted:
GTCR FUND VI, L.P.
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ illegible
--------------------------------
Name:
--------------------------------
Its: Principal
GTCR VI EXECUTIVE FUND, L.P.
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ illegible
--------------------------------
Name:
--------------------------------
Its: Principal
GTCR ASSOCIATES VI
By: GTCR Partners VI, L.P.
Its: Managing General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ illegible
--------------------------------
Name:
--------------------------------
Its: Principal
SIGNATURE PAGE TO THE SENIOR MANAGEMENT AGREEMENT
EXHIBIT A
---------
PROMISSORY NOTE
---------------
August 17, 1999 $80,554.50
Xxxxxx X. Xxxx ("Maker"), hereby promises to pay to the order of ZEFER
-----
Corp. (the "Company"), the principal amount of $80,554.50 together with interest
-------
thereon calculated from the date hereof in accordance with the provisions of
this Note.
This Note is the Executive Note referred to in the Senior Management
Agreement, dated as of the date hereof, between the Company and Maker (the
"Management Agreement"). Section 1(a) of the Management Agreement contains
---------------------
provisions for the issuance of this Note upon the terms and conditions specified
herein. Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Management Agreement.
1. Interest. Interest shall accrue on the outstanding principal amount of
--------
this Note at a rate equal to the lesser of (i) 5% per annum or (ii) the highest
rate permitted by applicable law, compounded annually on each anniversary of the
date hereof.
2. Payment on Note.
---------------
(a) Term. Subject to Section 2(b) below, the entire principal amount
----
of this Note and all accrued interest thereon shall be due and payable on the
fifth anniversary of the date hereof.
(b) Mandatory Prepayments. Notwithstanding anything in Section 2(a)
---------------------
to the contrary, Maker shall make the following mandatory prepayments:
(i) Upon the purchase of Stock from time to time by the
Investors pursuant to Section 1B(b) of the Purchase Agreement dated March
23, 1999 by and among the Company and the Investors, as amended from time
to time (the "Purchase Agreement"), Maker shall make a payment of principal
------------------
in an amount equal to the product of (A) $102,000 multiplied by (B) the
---------- --
quotient of (x) the amount paid to the Company in connection with such
purchase of Stock by Investors, divided by (y) $100,000,000, plus all
------- --
accrued interest on such principal amount (or such lesser principal amount
then outstanding). For purposes hereof, "Stock" shall have the meaning set
-----
forth in the Purchase Agreement.
(ii) In the event Maker receives any net cash proceeds (A) in
connection with the payment of a dividend or other distribution by the
Company or (B) relating to any other transaction or series of transactions
in which Maker sells any of the Holder Stock, Maker shall prepay any
amounts owed pursuant to this Note by applying all of such proceeds first,
-----
to any accrued interest and second, to any principal then outstanding. Upon
------
a Sale of the Company, Maker shall pay the entire principal amount then
outstanding and any accrued
interest to the Company. For purposes hereof, a "Sale of the Company" and
-------------------
"Executive Stock" shall have the meanings set forth in the Senior
---------------
Management Agreement.
(c) Optional Prepayments. Maker may, at any time and from time to
--------------------
time without premium or penalty, prepay all of the outstanding principal amount
of the Note; provided that any prepayment will be accompanied by a payment of
accrued interest on the portion being prepaid.
(d) Right of Offset. Upon an Event of Default (as described in
---------------
Section 3 hereof) or the Company's repurchase of Executive Stock pursuant to
Section 3(e) of the Management Agreement, the Company shall be entitled to
offset any amounts owed to the Company by the Maker, now existing or hereinafter
arising, pursuant to this Note against any amounts payable by the Company to the
Maker pursuant to and as set forth in the Management Agreement between the
Company and the Maker.
3. Events of Default.
-----------------
(a) Definition. For purposes of this Note, an Event of Default shall
----------
be deemed to have occurred if:
(i) Maker fails to pay (A) within 30 days after the date when due, the
full amount of interest then accrued or (B) when due, the full amount of
any principal payment; or
(ii) Maker makes an assignment for the benefit of creditors or admits
in writing his/her inability to pay his/her debts generally as they become
due; or an order, judgment or decree is entered adjudicating Maker bankrupt
or insolvent; or any order for relief with respect to Maker is entered
under the Federal Bankruptcy Code; or Maker petitions or applies to any
tribunal for the appointment of a custodian, trustee, receiver or
liquidator of any substantial part of Maker's assets, or commences any
proceeding relating to Maker under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation
law of any jurisdiction; or any such petition or application is filed, or
any such proceeding is commenced, against Maker and either (A) Maker by any
act indicates its approval thereof, consent thereto or acquiescence therein
or (B) such petition, application or proceeding is not dismissed within 60
days.
(b) Consequences of Events of Default.
---------------------------------
If an Event of Default of the type described in subparagraph 3(a)(ii)
has occurred the aggregate principal amount of the Note (together with all
accrued interest thereon and all other amounts payable in connection therewith)
shall become immediately due and payable without any action on the part of the
Company, and Maker shall immediately pay to the Company all amounts due and
payable with respect to the Note.
If an Event of Default of the type described in subparagraph 3(a)(i)
has occurred and continued for 5 days, the Company may declare all or any
portion of the outstanding principal amount of the Note (together with all
accrued interest thereon and all other amounts due in connection therewith) due
and payable and demand immediate payment of all or any portion of the
outstanding principal amount of the Note.
Maker, or his/her successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest and demand, dishonor and
nonpayment of this Note, and expressly agrees that this Note, or any payment
hereunder, may be extended from time to time and that the Company may accept
security for this Note or release security for this Note, all without in any way
affecting the liability of Maker hereunder.
In the event that Maker fails to pay any amounts due hereunder when
due, Maker shall pay to the Company, in addition to such amounts due, all costs
of collection, including reasonable attorneys fees.
4. Amendment and Waiver. Except as otherwise expressly provided herein,
--------------------
the provisions of the Note may be amended and Maker may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if Maker has obtained the written consent of the Company.
5. Cancellation. After all principal and accrued interest at any time
------------
owed on this Note has been paid in full, this Note shall be surrendered to Maker
for cancellation and shall not be reissued.
6. Place of Payment. Payments of principal and interest are to be
----------------
delivered to the Company at the following address:
ZEFER Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
or to such other address or to the attention of such other person as specified
by prior written notice to Maker.
7. Usury Laws. It is the intention of the Company and Maker to conform
----------
strictly to all applicable usury laws now or hereafter in force, and any
interest payable under this Note shall be subject to reduction to the amount not
in excess of the maximum legal amount allowed under the applicable usury laws as
now or hereafter construed by the courts having jurisdiction over such matters.
If the maturity of this Note is accelerated by reason of an election by the
Company resulting from an Event of Default, voluntary prepayment by Maker or
otherwise, then earned interest may never include more than the maximum amount
permitted by law, computed from the date hereof until payment, and any interest
in excess of the maximum amount permitted by law shall be canceled automatically
and, if theretofore paid, shall at the option of the Company either be rebated
to Maker or credited on the principal amount of this Note, or if this Note has
been paid, then the excess shall be rebated to Maker. The aggregate of all
interest (whether designated as interest, service charges, points or otherwise)
contracted for, chargeable, or receivable under this Note shall under no
circumstances exceed the maximum legal rate upon the unpaid principal balance of
this Note remaining unpaid from time to time. If such interest does exceed the
maximum legal rate, it shall be deemed a mistake and such excess shall be
canceled automatically and, if theretofore paid, rebated to Maker or credited on
the principal amount of this Note, or if this Note has been repaid, then such
excess shall be rebated to Maker.
8. Governing Law. This Note is made under and governed by the internal
-------------
law, not the laws of conflicts, of the State of Delaware.
* * * * *
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the date first above written.
/s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx - Maker
EXHIBIT B
---------
August 17, 1999
ELECTION TO INCLUDE STOCK IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned purchased shares of Common Stock, par value $.01 per
share (the "Shares"), of ZEFER Corp. (the "Company") on August 17, 1999 (the
------ -------
"Closing Date"). Under certain circumstances, the Company has the right to
------------
repurchase certain of the Shares at cost from the undersigned (or from the
holder of the Shares, if different from the undersigned) should the undersigned
cease to be employed by the Company and its subsidiaries or upon certain other
events. Hence, the Shares are subject to a substantial risk of forfeiture and
are non-transferable. The undersigned desires to make an election to have the
Shares taxed under the provision of Code (S)83(b) at the time he purchased the
Shares.
Therefore, pursuant to Code (S)83(b) and Treasury Regulation (S)1.83-2
promulgated thereunder, the undersigned hereby makes an election, with respect
to the Shares (described below), to report as taxable income for calendar year
1999 the excess (if any) of the Shares' fair market value on August 17, 1999
over the purchase price thereof.
The following information is supplied in accordance with Treasury
Regulation (S)1.83-2(e):
1. The name, address and social security number of the undersigned:
Xxxxxx X. Xxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Social Security Number: ______________
2. A description of the property with respect to which the election
is being made: 600,000 shares of Common Stock, par value $.01 per share, of the
Company.
3. The date on which the property was transferred August 17, 1999.
The taxable year for which such election is made: calendar year 1999.
4. The restrictions to which the property is subject: If during the
first five years after the Closing Date, the undersigned ceases to be employed
by the Company or any of its subsidiaries, the unvested portion of the Shares
will be subject to repurchase by the Company at cost. The Shares become vested
in accordance with the terms of a certain employment agreement between the
undersigned and the issuer over a five year period.
5. The fair market value on August 17, 1999 of the property with
respect to which the election is being made, determined without regard to any
lapse restrictions: $0.38 per share of Common Stock.
6. The amount paid for such property: $0.17 per share of Common
Stock.
A copy of this election has been furnished to the Secretary of the
Company pursuant to Treasury Regulations (S)1.83-2(e)(7).
Dated: August 17, 1999
______________________________
Xxxxxx X. Xxxx
EXHIBIT C
---------
ASSIGNMENT SEPARATE FROM CERTIFICATE
------------------------------------
FOR VALUE RECEIVED, Xxxxxx X. Xxxx does hereby sell, assign and
transfer unto _______________, _____________ shares of the Common Stock, par
value $.01 per share, of Zefer Corp., a Delaware corporation (the
"Corporation"), standing in the undersigned's name on the books of the
-----------
Corporation represented by Certificate Nos. _________ herewith and does hereby
irrevocably constitute and appoint each principal of GTCR Xxxxxx Xxxxxx, L.L.C.
(acting alone or with one or more other such principals) as attorney to transfer
the said stock on the books of the Corporation with full power of substitution
in the premises.
Dated:_________ __, _____ _________________________
Xxxxxx X. Xxxx
PROMISSORY NOTE
---------------
August 17, 1999 $80,554.50
Xxxxxx X. Xxxx ("Maker"), hereby promises to pay to the order of ZEFER
-----
Corp. (the "Company"), the principal amount of $80,554.50 together with interest
-------
thereon calculated from the date hereof in accordance with the provisions of
this Note.
This Note is the Executive Note referred to in the Senior Management
Agreement, dated as of the date hereof, between the Company and Maker (the
"Management Agreement"). Section 1(a) of the Management Agreement contains
--------------------
provisions for the issuance of this Note upon the terms and conditions specified
herein. Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Management Agreement.
1. Interest. Interest shall accrue on the outstanding principal amount of
--------
this Note at a rate equal to the lesser of (i) 5% per annum or (ii) the highest
rate permitted by applicable law, compounded annually on each anniversary of the
date hereof.
2. Payment on Note.
---------------
(a) Term. Subject to Section 2(b) below, the entire principal amount
----
of this Note and all accrued interest thereon shall be due and payable on the
fifth anniversary of the date hereof.
(b) Mandatory Prepayments. Notwithstanding anything in Section 2(a)
---------------------
to the contrary, Maker shall make the following mandatory prepayments:
(i) Upon the purchase of Stock from time to time by the
Investors pursuant to Section 1B(b) of the Purchase Agreement dated March
23, 1999 by and among the Company and the Investors, as amended from time
to time (the "Purchase Agreement"), Maker shall make a payment of principal
------------------
in an amount equal to the product of (A) $102,000 multiplied by (B) the
---------- --
quotient of (x) the amount paid to the Company in connection with such
purchase of Stock by Investors, divided by (y) $100,000,000, plus all
------- --
accrued interest on such principal amount (or such lesser principal amount
then outstanding). For purposes hereof, "Stock" shall have the meaning set
-----
forth in the Purchase Agreement.
(ii) In the event Maker receives any net cash proceeds (A) in
connection with the payment of a dividend or other distribution by the
Company or (B) relating to any other transaction or series of transactions
in which Maker sells any of the Holder Stock, Maker shall prepay any
amounts owed pursuant to this Note by applying all of such proceeds first,
-----
to any accrued interest and second, to any principal then outstanding.
------
Upon a Sale of the Company, Maker shall pay the entire principal amount
then outstanding and any accrued
interest to the Company. For purposes hereof, a "Sale of the Company" and
-------------------
"Executive Stock" shall have the meanings set forth in the Senior
---------------
Management Agreement.
(c) Optional Prepayments. Maker may, at any time and from time to
--------------------
time without premium or penalty, prepay all of the outstanding principal amount
of the Note; provided that any prepayment will be accompanied by a payment of
accrued interest on the portion being prepaid.
(d) Right of Offset. Upon an Event of Default (as described in
---------------
Section 3 hereof) or the Company's repurchase of Executive Stock pursuant to
Section 3(e) of the Management Agreement, the Company shall be entitled to
offset any amounts owed to the Company by the Maker, now existing or hereinafter
arising, pursuant to this Note against any amounts payable by the Company to the
Maker pursuant to and as set forth in the Management Agreement between the
Company and the Maker.
3. Events of Default.
-----------------
(a) Definition. For purposes of this Note, an Event of Default shall
----------
be deemed to have occurred if:
(i) Maker fails to pay (A) within 30 days after the date when due,
the full amount of interest then accrued or (B) when due, the full amount
of any principal payment; or
(ii) Maker makes an assignment for the benefit of creditors or admits
in writing his/her inability to pay his/her debts generally as they become
due; or an order, judgment or decree is entered adjudicating Maker bankrupt
or insolvent; or any order for relief with respect to Maker is entered
under the Federal Bankruptcy Code; or Maker petitions or applies to any
tribunal for the appointment of a custodian, trustee, receiver or
liquidator of any substantial part of Maker's assets, or commences any
proceeding relating to Maker under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation
law of any jurisdiction; or any such petition or application is filed, or
any such proceeding is commenced, against Maker and either (A) Maker by any
act indicates its approval thereof, consent thereto or acquiescence therein
or (B) such petition, application or proceeding is not dismissed within 60
days.
(b) Consequences of Events of Default.
---------------------------------
If an Event of Default of the type described in subparagraph 3(a)(ii)
has occurred the aggregate principal amount of the Note (together with all
accrued interest thereon and all other amounts payable in connection therewith)
shall become immediately due and payable without any action on the part of the
Company, and Maker shall immediately pay to the Company all amounts due and
payable with respect to the Note.
If an Event of Default of the type described in subparagraph 3(a)(i)
has occurred and continued for 5 days, the Company may declare all or any
portion of the outstanding principal amount of the Note (together with all
accrued interest thereon and all other amounts due in connection therewith) due
and payable and demand immediate payment of all or any portion of the
outstanding principal amount of the Note.
Maker, or his/her successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest and demand, dishonor and
nonpayment of this Note, and expressly agrees that this Note, or any payment
hereunder, may be extended from time to time and that the Company may accept
security for this Note or release security for this Note, all without in any way
affecting the liability of Maker hereunder.
In the event that Maker fails to pay any amounts due hereunder when
due, Maker shall pay to the Company, in addition to such amounts due, all costs
of collection, including reasonable attorneys fees.
4. Amendment and Waiver. Except as otherwise expressly provided herein,
--------------------
the provisions of the Note may be amended and Maker may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if Maker has obtained the written consent of the Company.
5. Cancellation. After all principal and accrued interest at any time
------------
owed on this Note has been paid in full, this Note shall be surrendered to Maker
for cancellation and shall not be reissued.
6. Place of Payment. Payments of principal and interest are to be
----------------
delivered to the Company at the following address:
ZEFER Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
or to such other address or to the attention of such other person as specified
by prior written notice to Maker.
7. Usury Laws. It is the intention of the Company and Maker to conform
----------
strictly to all applicable usury laws now or hereafter in force, and any
interest payable under this Note shall be subject to reduction to the amount not
in excess of the maximum legal amount allowed under the applicable usury laws as
now or hereafter construed by the courts having jurisdiction over such matters.
If the maturity of this Note is accelerated by reason of an election by the
Company resulting from an Event of Default, voluntary prepayment by Maker or
otherwise, then earned interest may never include more than the maximum amount
permitted by law, computed from the date hereof until payment, and any interest
in excess of the maximum amount permitted by law shall be canceled automatically
and, if theretofore paid, shall at the option of the Company either be rebated
to Maker or credited on the principal amount of this Note, or if this Note has
been paid, then the excess shall be rebated to Maker. The aggregate of all
interest (whether designated as interest, service charges, points or otherwise)
contracted for, chargeable, or receivable under this Note shall under no
circumstances exceed the maximum legal rate upon the unpaid principal balance of
this Note remaining unpaid from time to time. If such interest does exceed the
maximum legal rate, it shall be deemed a mistake and such excess shall be
canceled automatically and, if theretofore paid, rebated to Maker or credited on
the principal amount of this Note, or if this Note has been repaid, then such
excess shall be rebated to Maker.
8. Governing Law. This Note is made under and governed by the internal
-------------
law, not the laws of conflicts, of the State of Delaware.
* * * * *
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the date first above written.
/s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx - Maker
ASSIGNMENT SEPARATE FROM CERTIFICATE
------------------------------------
FOR VALUE RECEIVED, Xxxxxx X. Xxxx does hereby sell, assign and
transfer unto _______________, _____________ shares of the Common Stock, par
value $.01 per share, of Zefer Corp., a Delaware corporation (the
"Corporation"), standing in the undersigned's name on the books of the
-----------
Corporation represented by Certificate Nos. _________ herewith and does hereby
irrevocably constitute and appoint each principal of GTCR Xxxxxx Xxxxxx, L.L.C.
(acting alone or with one or more other such principals) as attorney to transfer
the said stock on the books of the Corporation with full power of substitution
in the premises.
Dated:_________ __, _____ /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
August 17, 1999
ELECTION TO INCLUDE STOCK IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned purchased shares of Common Stock, par value $.01 per
share (the "Shares"), of ZEFER Corp.(the "Company") on August 17, 1999 (the
------ -------
"Closing Date"). Under certain circumstances, the Company has the right to
------------
repurchase certain of the Shares at cost from the undersigned (or from the
holder of the Shares, if different from the undersigned) should the undersigned
cease to be employed by the Company and its subsidiaries or upon certain other
events. Hence, the Shares are subject to a substantial risk of forfeiture and
are non-transferable. The undersigned desires to make an election to have the
Shares taxed under the provision of Code (S)83(b) at the time he purchased the
Shares.
Therefore, pursuant to Code (S)83(b) and Treasury Regulation (S)1.83-2
promulgated thereunder, the undersigned hereby makes an election, with respect
to the Shares (described below), to report as taxable income for calendar year
1999 the excess (if any) of the Shares' fair market value on August 17, 1999
over the purchase price thereof.
The following information is supplied in accordance with Treasury
Regulation (S)1.83-2(e):
1. The name, address and social security number of the undersigned:
Xxxxxx X. Xxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Social Security Number:
-----------
2. A description of the property with respect to which the election
is being made: 600,000 shares of Common Stock, par value $.01 per share, of the
Company.
3. The date on which the property was transferred August 17, 1999.
The taxable year for which such election is made: calendar year 1999.
4. The restrictions to which the property is subject: If during the
first five years after the Closing Date, the undersigned ceases to be employed
by the Company or any of its subsidiaries, the unvested portion of the Shares
will be subject to repurchase by the Company at cost. The Shares become vested
in accordance with the terms of a certain employment agreement between the
undersigned and the issuer over a five year period.
5. The fair market value on August 17, 1999 of the property with
respect to which the election is being made, determined without regard to any
lapse restrictions: $0.38 per share of Common Stock.
6. The amount paid for such property: $0.17 per share of Common
Stock.
A copy of this election has been furnished to the Secretary of the
Company pursuant to Treasury Regulations (S)1.83-2(e)(7).
Dated: August 17, 1999
/s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
