CONTRIBUTION AND RESTRICTION AGREEMENT
THIS CONTRIBUTION AND RESTRICTION AGREEMENT (this "AGREEMENT") is entered
into as of this ____ day of November, 2000, by and among CompleTel Europe N.V.,
a public corporation incorporated under the laws of the Netherlands ("EUROPE
NV"), CompleTel LLC, a Delaware, USA limited liability company ("LLC"), and
the executive officer identified in Schedule A hereto ("YOU").
RECITALS
A. You hold the number of vested time-vesting membership units of
LLC ("VESTED UNITS") and the number of unvested time-vesting membership units of
LLC ("UN-TIME-VESTED UNITS" and, together with the Vested Units, "UNITS") shown
on EXHIBIT A.
B. You wish to contribute your Units (the "CONTRIBUTION") for newly
issued ordinary shares of Europe NV ("NV SHARES"). Europe NV wishes to issue the
NV Shares to you in consideration for the Units, in an offering made in reliance
on Regulation S ("REGULATION S") under the United States Securities Act of 1933,
as amended (the "SECURITIES ACT").
AGREEMENT
NOW THEREFORE, you, Europe NV and LLC agree as follows:
1. CONTRIBUTION OF UNITS FOR NV SHARES.
(a) Subject to the conditions in Section 6, in the
Contribution you will contribute your Vested Units to Europe NV in consideration
for the number of NV Shares shown on EXHIBIT A.
(b) Subject to the conditions in Sections 3, 4 and 6, in the
Contribution you will contribute your Un-Time-Vested Units to Europe NV in
consideration for the number of NV Shares shown on EXHIBIT A. NV Shares issued
to you in consideration for Un-Time-Vested Units are referred to in this
Agreement as the "RESTRICTED SHARES."
(c) You and Europe NV agree that the total number of Units
contributed by you and the total number of NV Shares issued to you in the
Contribution have an equal value.
2. YOUR REPRESENTATIONS AND WARRANTIES TO LLC AND EUROPE NV. You
acknowledge, represent, warrant and agree that:
(a) The NV Shares you will receive have not been registered
under the Securities Act, or any other applicable securities law. You may not
offer for sale, sell, pledge (except as required under Section 3(b)) or
otherwise transfer your NV Shares, under an effective registration statement
under the Securities Act or an exemption from registration, or in accordance
with Regulation S.
(b) You are not a resident of the United States of America
or any of its territories or possessions (the "US"). You are not acquiring the
NV Shares for the account or benefit of any US resident. You have not
pre-arranged a transfer of the NV Shares to a US resident.
(c) The offer and sale of the NV Shares to you has taken
place outside of the US. You have executed this Agreement outside of the US.
(d) You are acquiring the NV Shares for investment and will
not:
(i) offer for sale, sell or otherwise transfer any
NV Shares before November 27, 2001, except (A) under an effective registration
statement under the Securities Act, (B) in compliance with Rules 904 and 905 of
Regulation S, or (C) under an exemption from the registration requirements of
the Securities Act as confirmed in an opinion of counsel satisfactory to Europe
NV; or
(ii) engage in any hedging transaction with respect
to any NV Shares, except in compliance with the Securities Act.
If you propose any resale or other transfer (except under an effective
registration statement under the Securities Act) before November 27, 2001, you
will provide Europe NV with an opinion of counsel satisfactory to Europe NV that
the proposed transaction is exempt from the registration requirements of the
Securities Act. Europe NV may require you and your transferee to provide
satisfactory investment representations.
(e) You understand that the NV Shares are "restricted
securities" under US securities laws because they are being acquired from Europe
NV in a non-public transaction under Rules 901-903, and 905 under Regulation S.
You understand that under applicable laws and regulations, the NV Shares may be
resold without registration under the Securities Act only in limited
circumstances. You represent that you are familiar with Rule 144 under the
Securities Act, as currently in effect, and understand the resale limitations
imposed by Rule 144 and by the Securities Act.
(f) You are not an underwriter of, or dealer in, the NV
Shares, and are not participating in any distribution of the NV Shares, either
directly or through any affiliate.
(g) You own the Units you are contributing to Europe NV in
the Contribution as shown on EXHIBIT A, and when you contribute them, the Units
will be free from any liens or other adverse claims.
(h) The vesting schedule of the Time-Un-Vested Units you are
contributing to Europe NV will not be accelerated by the contribution. To
preserve LLC's rights under the original vesting arrangement, you agree to the
Transfer Restrictions (defined in Section 3) and the Call Option (defined in
Section 4).
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(i) Europe NV and others will rely upon the truth and
accuracy of all of your statements in this Agreement. If any of your statements
is no longer accurate, you will promptly notify Europe NV of the inaccuracy.
3. TRANSFER RESTRICTIONS.
(a) You agree that you will not sell, pledge or otherwise
transfer any interest in any Restricted Shares (a "TRANSFER"), except under the
call provisions of Section 4 or under applicable laws of descent and
distribution (the "TRANSFER RESTRICTIONS").
(b) The number of your NV Shares that are Restricted Shares,
and therefore subject to the Transfer Restrictions and to the Call Option (as
defined in Section 4), will decrease over time as follows:
-------------------------------------------------------------------------------
Number of Your
Date Restricted Shares
-------------------------------------------------------------------------------
Closing Date _______
-------------------------------------------------------------------------------
December 31, 2000 _______
-------------------------------------------------------------------------------
November 12, 2001 0
-------------------------------------------------------------------------------
Each of the dates in this schedule, except the Closing Date, is referred to as a
"LAPSE DATE." No Transfer Restrictions on any of your NV Shares will lapse after
a Call Event (defined in Section 4(a)) has occurred.
(c) PLEDGE. You agree to pledge certain of your Restricted
Shares to LLC, as security for monetary damages provided for in Section 5 below,
by executing the deed of pledge ("DEED OF PLEDGE"), attached to this Agreement
as EXHIBIT B.
(d) CANCELLATION OF PLEDGE. Europe NV agrees that, after
each Lapse Date, it will cause the pledge of your NV Shares that are no longer
Restricted Shares to be cancelled.
4. CALL OPTION.
(a) You grant LLC the option to purchase any or all of your
Restricted Shares (the "CALL OPTION") if you cease to be employed by Europe NV
or its subsidiaries, voluntarily or involuntarily, with or without cause, for
any reason or for no reason (a "CALL EVENT").
(b) You agree that the call price (the "CALL PRICE") for any
Restricted Shares purchased under this Section 4 will be $0.001044 per share.
(c) When a Call Event occurs, LLC must deliver to you the
"CALL NOTICE" attached to this Agreement as EXHIBIT C, notifying you of the
exercise of its Call Option and
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indicating the number of Restricted Shares LLC will purchase and the total Call
Price. LLC agrees to pay the purchase price within ten business days after the
date of the Call Notice.
(d) You agree that as security for the Call Option, LLC will
have custody of the share certificates issued for your Restricted Shares, and
you will sign and deliver the letter attached to this Agreement as EXHIBIT D,
instructing Europe NV's registrar to deliver those certificates to LLC.
(e) You agree to execute in blank the stock powers attached
to this Agreement as EXHIBIT E ("STOCK POWERS"), as requested by LLC. You
understand and agree that when LLC has paid you the total Call Price, it will
use the Stock Powers to change the ownership of the repurchased Restricted
Shares in its custody.
(f) LLC agrees that, after each Lapse Date, it will return
to you or your designated agent the NV Share certificates on which the Transfer
Restrictions have lapsed, together with the corresponding Stock Power.
5. PENALTIES UPON TRANSFER. You agree that any Transfer in
violation of Section 3 will be a material breach of this Agreement entitling LLC
to monetary damages equal to the difference between the Call Price and the
greater of:
(a) the price or value you received, directly or indirectly,
on any Transfer of the Restricted Shares; or
(b) the closing price of Europe NV's ordinary shares on the
Nasdaq National Market on the date of the Transfer.
6. CONDITIONS TO CLOSING. Europe NV will not be obligated to
complete any Contribution or issue NV Shares under Section 7(b) of this
Agreement unless the following conditions are satisfied:
(a) Your representations and warranties in Section 2 are
true and correct on the Closing Date.
(b) You have delivered an executed counterpart of this
Agreement, an executed Deed of Pledge and executed Stock Powers to Europe NV.
7. ACTIONS ON CLOSING DATE. The closing of the Contribution will
occur on the date you have satisfied all of the closing conditions (the "Closing
Date"). On the Closing Date:
(a) You will contribute to Europe NV all of the Units shown
on EXHIBIT A;
(b) Europe NV will issue to you the number of NV Shares
shown EXHIBIT A. The share certificates will be delivered to you within seven
business days of the Closing Date.
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8. SHARE CERTIFICATE LEGENDS.
(a) You understand and agree that any certificate
representing the NV Shares will bear the following legend:
"The Securities represented by this certificate (the "Securities")
have not been registered under the United States Securities Act of
1933, as amended (the "Securities Act"), or any other securities
laws, and may not be transferred except in accordance with the
provisions of Regulation S (Section 230,901 through Section 230,905,
and Preliminary Notes), pursuant to registration under the Securities
Act or pursuant to an available exemption from registration. Hedging
transactions involving the Securities may not be conducted other than
in compliance with the Securities Act."
(b) You also understand and agree that the certificates
representing Restricted Shares will bear the following legend:
"The shares represented by this certificate are subject to additional
restrictions on transfer set forth in a Contribution and Restriction
Agreement among the CompleTel Europe N.V., CompleTel LLC, and the
initial holder of such shares. The shares are also pledged to CompleTel
LLC pursuant to a Deed of Pledge. A copy of such agreement and deed may
be obtained by the holder hereof at the issuer's principal place of
business without charge."
After each Lapse Date, LLC or its agent will cause the above legend to be
removed from the certificates representing any shares that cease to be
Restricted Shares.
9. REGISTRATION AGREEMENT. You understand that, except as provided
in the Registration Agreement dated May 18, 1998, as amended, Europe NV is not
obligated to register the NV Shares under US federal or state securities laws.
You understand that Europe NV is not obligated to assist you in the sale or
transfer of your NV Shares if you decide at a later date to sell or transfer
your NV Shares.
10. FURTHER ACTIONS. You and each other party to this Agreement
agree to execute and deliver any further documents and writings, and to
undertake and perform any further acts that may be necessary to give effect to
the terms and provisions of this Agreement.
11. SEVERABILITY. The finding by a court of competent jurisdiction
or governmental body that any term or provision of this Agreement is
unenforceable or otherwise void will not affect the effectiveness or
enforceability of any of the other terms of this Agreement.
12. BINDING EFFECT. This Agreement is binding upon, and will inure
to the benefit of, the parties, and their respective heirs, successors, and
assigns.
13. HEADINGS. All Section headings are intended solely for
convenience of reference and will not control the meaning or interpretation of
any of the provisions of this Agreement.
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14. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed by facsimile and/or in one or more counterparts, each of which will be
an original and, when taken together with other signed counterparts, will
constitute one Agreement.
15. CONTROLLING LAW. The terms and provisions of this Agreement will
be governed by and construed in accordance with the laws of the State of
Colorado, United States of America.
16. JURISDICTION; SERVICE OF PROCESS. Any actions or proceedings,
whether at law or in equity, seeking to enforce or to enjoin the enforcement of
any provision of this Agreement, or based on any right arising out of this
Agreement shall be brought, tried and litigated against any of the parties in
the courts of the State of Colorado, or, if it has or can acquire jurisdiction,
in the United States District Court for the District of Colorado. You and each
of the other parties hereby consent to the jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and waive any
and all possible objections to venue laid therein, including without limitation
FORUM NON CONVENIENS. Process in any action or proceeding referred to in the
preceding sentence may be served on you or any other party anywhere in the world
by prepaid Federal Express, DHL or other international air courier to you at the
address reflected on NV's share register and to Europe NV or LLC at its
principal office address.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have signed this Agreement as of the
date first written above.
COMPLETEL EUROPE N.V.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Managing Director
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Xxxxxx Xxxxx, Managing Director
COMPLETEL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
/s/
------------------------------------------------
Executive Officer
SCHEDULE A
SCHEDULE OF UNITS AND NV SHARES
NUMBER OF NUMBER OF NUMBER OF
NAME OF NUMBER OF NV SHARES VESTED NV UN-TIME-VESTED NV SHARES RESTRICTED
MEMBER VESTED UNITS PER UNIT SHARES UNITS PER UNIT NV SHARES
------ ------------ -------- ------ ----- -------- ---------
Xxxxxxxx Xxxxxx 290.86 958 278,644 194.73 958 186,554
Xxxxxx Xx Xxxxx 281.98 958 270,136 203.61 958 195,062
EXHIBIT B
DEED OF PLEDGE
Please see attached.
EXHIBIT C
CALL NOTICE
Name
Street Address
City, State Zip Code
Dear_________:
NOTICE
CompleTel LLC ("LLC") intends to exercise the Call Option you granted to it in
the Contribution and Restriction Agreement dated as of November 27, 2000 among
you, CompleTel Europe N.V., and LLC (the "CONTRIBUTION AGREEMENT"). Capitalized
terms used in this letter have the meanings given to them in the Contribution
Agreement.
LLC intends to purchase ______ of your Restricted Shares at $0.001044 per share
for a total purchase price of $ _______. A check representing the purchase price
is enclosed with this Notice.
COMPLETEL EUROPE N.V.
By:
---------------------------------------
By:
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EXHIBIT D
REGISTRAR LETTER
Please see attached.
EXHIBIT E
STOCK POWERS
Please see attached.
