EXHIBIT 10.11
AMENDED AND RESTATED
MANAGEMENT EQUITY AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT EQUITY AGREEMENT (this "AGREEMENT") is
made as of September 5, 2002, among MDCP Acquisitions plc, a public limited
company organized under the laws of Ireland (the "COMPANY"), and each of
executives that become party hereto from time to time pursuant to the Management
Equity Plan (as hereinafter defined) by executing a signature page to be
attached hereto (each an "EXECUTIVE").
The Company and each Executive desire to enter into an agreement pursuant
to which such Executive shall purchase, and the Company shall sell, certain of
the Company's Ordinary Shares, nominal value E0.001 per share (the "ORDINARY
SHARES"), and certain of the Company's Class A Convertible Shares, Class B
Convertible Shares and Class C Convertible Shares, each of which is convertible
(indirectly through the automatic conversion into Class D Convertible Shares
upon vesting) upon payment of the conversion price therefor into Ordinary
Shares. The Ordinary Shares and Convertible Shares to be acquired by an
Executive hereunder are being issued pursuant to and subject to the MDCP
Acquisitions plc Amended and Restated 2002 Management Equity Plan, a copy of
which is attached as ANNEX A hereto (as amended from time to time in accordance
with its terms, the "MANAGEMENT EQUITY PLAN"). Upon execution hereof by each of
the Company, Xxxxxxx X.X. Smurfit, Xxxx XxXxxx, Xxxxxxx X.X. Smurfit and Xxx
Xxxxxx, this Agreement shall amend and restated in its entirety that certain
Management Equity Agreement, dated as of July 4, 2002. Capitalized terms not
otherwise defined herein have the meanings set forth in PARAGRAPH 10 of this
Agreement.
The parties hereto agree as follows:
1. PURCHASE AND SALE OF ORDINARY SHARES.
(a) PURCHASE AND SALE. At the Closing (as defined in paragraph 1(b)
hereof), each Executive shall subscribe for in cash by electronic transfer in
immediately available funds to the Company, and the Company shall issue to each
such Executive, the number of Ordinary Shares set forth on such Executive's
signature page attached hereto, at a subscription price per share equal to the
Per Share Subscription Price.
(b) THE CLOSING. The closing of the subscription and issue of the
Ordinary Shares (the "CLOSING") shall take place at the offices of Xxxxxx Xxx,
Earlsfort Terrace, Dublin at 10:00 a.m. on September 17, 2002 or such other day
as may be agreed to by the Company and any Executive. At the Closing, the
Company shall enter such Executive's name or, if applicable, the name of his
nominee or custodian, on the Company's register of members as the holder of the
number of Ordinary Shares set forth on such Executive's signature page attached
hereto, and such Executive shall deliver to the Company cash by electronic
transfer in immediately available funds in the aggregate amount set forth on
such Executive's signature page attached hereto.
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2. PURCHASE AND SALE OF CONVERTIBLE SHARES.
(a) PURCHASE AND SALE. On the date that an Executive executes and
delivers a counterpart to this Agreement to the Company or such other date as
the Company and such Executive may agree (for any Executive, any such date, the
"INCENTIVE CLOSING DATE"), such Executive shall subscribe in cash by electronic
transfer in immediately available funds to the Company and the Company shall
issue to each such Executive, the number of Class A Convertible Shares, Class B
Convertible Shares and Class C Convertible Shares set forth on such Executive's
signature page attached hereto at a price of E0.001 per share. On the Incentive
Closing Date, the Company shall enter such Executive's name or, if applicable,
the name of his nominee or custodian, on the Company's register of members as
the holder of the number of Convertible Shares purchased by such Executive
hereunder, and such Executive shall deliver to the Company cash by electronic
transfer in immediately available funds in the aggregate amount set forth on
such Executive's signature page attached hereto.
(b) CONVERTIBILITY OF CLASS A CONVERTIBLE SHARES, CLASS B CONVERTIBLE
SHARES AND CLASS C CONVERTIBLE SHARES. Each Class A Convertible Share, Class B
Convertible Share and Class C Convertible Share will automatically convert into
one Class D Convertible Share in accordance with this Agreement once it has
fully vested.
(c) VESTING. Subject to PARAGRAPH 2(d):
(i) Each Executive's Class A Convertible Shares shall become
vested in accordance with the following schedule, if, but only if, as of
each such date such Executive is and has continued to be employed by or to
serve as an officer or director for the Company and its Subsidiaries:
Cumulative Percentage of
Class A Convertible
Vesting Date Shares Vested
---------------------------- ----------------------------
December 31, 2005 33.3%
December 31, 2006 66.7%
December 31, 2007 100%
None of an Executive's Class A Convertible Shares shall become vested if
such Executive ceases to be employed by, or to serve as an officer or
director for, the Company or its Subsidiaries prior to December 31, 2005.
If any Executive ceases to be employed by, or to serve as an officer or
director for, the Company or its Subsidiaries on any date other than any
Vesting Date set forth in this PARAGRAPH 2(c)(i) after December 31, 2005
but prior to December 31, 2007, the cumulative percentage of such
Executive's Class A Cumulative Shares to become vested shall be determined
on a pro rata basis according to the number of days elapsed since the
immediately preceding Vesting Date. Notwithstanding the foregoing, upon the
occurrence of a Sale of the Company or a Listing, all of an Executive's
Class A Convertible Shares which have not previously
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vested shall become vested and shall convert to an equal number of Class D
Convertible Shares upon the occurrence of such event; PROVIDED that no
Class A Convertible Shares shall vest for any Executive (or Executive's
transferees) upon the occurrence of a Sale of the Company or a Listing if
the Executive holding such Class A Convertible Shares or from whom the
Class A Convertible Shares were transferred is no longer employed by, or no
longer serves as an officer or director for, the Company and its
Subsidiaries as of the date of the occurrence of the Sale of the Company or
a Listing.
(ii) 33.3% of the aggregate number of each Executive's Class B
Convertible Shares issued to him pursuant to PARAGRAPH 2(a) will become
vested on each Applicable Class B Valuation Date if, but only if, the IRR
of the MDCP Co-Investors as of such Applicable Class B Valuation Date
equals or exceeds 25%; PROVIDED that if the IRR of the MDCP Co-Investors as
of such Applicable Class B Valuation Date is greater than 15%, but less
than 25%, the percentage of the aggregate Class B Convertible Shares which
will become vested as of such Applicable Class B Valuation Date shall be
the percentage determined by multiplying 3.33 by the excess of (A) the IRR
of the MDCP Co-Investors as of the Applicable Class B Valuation Date over
(B) 15%. In the event that an Accelerated Valuation Date occurs prior to
any Applicable Class B Valuation Date, 100% of the Class B Convertible
Shares not previously vested pursuant to this PARAGRAPH 2(c)(ii) will
become vested as of such Accelerated Valuation Date if, but only if, the
IRR of the MDCP Co-Investors as of such Accelerated Valuation Date equals
or exceeds 25%; PROVIDED that if the IRR of the MDCP Co-Investors as of the
Accelerated Valuation Date is greater than 15%, but less than 25%, the
percentage of Eligible Class B Convertible Shares which shall vest as of
such Accelerated Valuation Date shall be the percentage determined by
multiplying 10 by the excess of (A) the IRR of the MDCP Co-Investors as of
the Accelerated Valuation Date over (B) 15%. Vesting with respect to the
Class B Convertible Shares shall be cumulative such that if the IRR of the
MDCP Co-Investors as of an Accelerated Valuation Date or any subsequent
Applicable Class B Valuation Date is greater than any preceding Applicable
Class B Valuation Date, the percentage of each Executive's entire holding
of Class B Convertible Shares vested shall be recalculated to be equal to
the percentage vested for such Accelerated Valuation Date or subsequent
Applicable Class B Valuation Date (i.e., if the IRR of the MDCP
Co-Investors as of a preceding Applicable Class B Valuation Date was 15%
and the IRR of the MDCP Co-Investors as of a subsequent Applicable Class B
Valuation Date is 20%, the aggregate percentage of Class B Convertible
Shares vested (inclusive of Class B Convertible Shares already vested as of
such preceding Applicable Class B Valuation Date) with respect to both
Applicable Class B Valuation Dates shall be, effective as of the subsequent
Applicable Class B Valuation Date, 50%). For the avoidance of doubt, in the
event that an Accelerated Valuation Date arises prior to any Applicable
Class B Valuation Date, the determination of vesting with respect to all
unvested Class B Convertible Shares otherwise eligible for vesting on any
subsequent Applicable Class B Valuation Date shall be made solely as of
such Accelerated Valuation Date and shall not be re-eligible for vesting as
of such subsequent Applicable Class B Valuation Date. Notwithstanding
anything else to the contrary set forth in this PARAGRAPH 2(c)(ii), no
Class B Convertible Shares shall vest for any Executive (or Executive's
transferees) as of any Applicable Class
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B Valuation Date or Accelerated Valuation Date if the Executive holding
such Class B Convertible Shares or from whom the Class B Convertible Shares
were transferred is no longer employed by, or no longer serves as an
officer, or director for, the Company and its Subsidiaries as of such
Applicable Class B Valuation Date or Accelerated Valuation Date.
(iii) 100% of each Executive's Class C Convertible Shares will
become vested on the Class C Valuation Date if, but only if, the IRR of the
MDCP Co-Investors as of the Class C Valuation Date is equal to or greater
than 30%. In the event that an Accelerated Valuation Date occurs prior to
the Class C Valuation Date, 100% of the Class C Convertible Shares will
become vested as of such Accelerated Valuation Date if, but only if, the
IRR of the MDCP Co-Investors as of such Accelerated Valuation Date is equal
to or greater than 30%. For the avoidance of doubt, in the event that an
Accelerated Valuation Date arises prior to the Class C Valuation Date, the
determination of vesting with respect to all unvested Class C Convertible
Shares otherwise eligible for vesting on the subsequent Class C Valuation
Date shall be made solely as of such Accelerated Valuation Date and shall
not be re-eligible for vesting as of such subsequent Class C Valuation
Date. Notwithstanding anything else to the contrary set forth in this
PARAGRAPH 2(c)(iii), no Class C Convertible Shares shall vest for any
Executive (or Executive's transferees) as of the Class C Valuation Date or
Accelerated Valuation Date if the Executive holding such Class C
Convertible Shares or from whom the Class C Convertible Shares were
transferred is no longer employed by, or no longer serves as an officer or
director for, the Company and its Subsidiaries as of such Class C Valuation
Date or Accelerated Valuation Date.
(iv) Notwithstanding the provisions of paragraphs (i), (ii) and
(iii), as a condition to accelerated vesting of such Executive's
Convertible Shares in connection with a Sale of the Company, such Executive
shall, if requested by the purchaser of the Company and for no additional
consideration therefor, agree to continued employment for up to 12 months
following such Sale of the Company so long as such Executive's compensation
package and job description immediately following such Sale of the Company
is substantially similar with respect to remuneration (other than with
respect to equity participation), scope of duties, responsibility and job
location to such Executive's compensation package and job description
immediately prior to such event.
(v) The IRR of the MDCP Co-Investors on any Applicable Valuation
Date shall be determined with reference to the Total Value of the Company
and its Subsidiaries as of such Applicable Valuation Date, which Total
Value (including the components thereof) shall be determined, to the extent
possible, on the basis of the audited annual financial statements for the
Company and its Subsidiaries for the period ended on such Applicable
Valuation Date and otherwise in good faith by the Company. The IRR of the
MDCP Co-Investors as of such Applicable Valuation Date shall be calculated
(A) assuming that on such Applicable Valuation Date, the MDCP Co-Investors
are receiving Cash Inflows for any Preferred Equity Securities equal to the
stated value thereof plus accrued but unpaid dividends thereon and with
respect to its Ordinary Shares is receiving Cash Inflows equal to the Total
Value multiplied by the percentage of fully-diluted
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Ordinary Shares of the Company held by the MDCP Co-Investors as of such
Applicable Valuation Date and (B) with regard to all sales of equity
securities prior to such Applicable Valuation Date by calculating all Cash
Inflows received or receivable with respect to such equity securities sold
prior to such Applicable Valuation Date. The IRR of the MDCP Co-Investors
on an Accelerated Valuation Date that arises as a result of a Sale of the
Company shall be determined on the basis of the aggregate Cash Inflows
received or receivable by the MDCP Co-Investors in respect of all sales of
equity securities of the Company by the MDCP Co-Investors through and
including such Accelerated Valuation Date (and in the event that the MDCP
Co-Investors have not sold all of their equity securities as of such
Accelerated Valuation Date, assuming that the MDCP Co-Investors would sell
their remaining Preferred Equity Securities at an amount equal to the
stated value thereof plus accrued and unpaid dividends thereon and its
remaining Ordinary Shares at the average price per share received or
receivable by the MDCP Co-Investors in respect of their Ordinary Shares
through such Accelerated Valuation Date). The IRR of the MDCP Co-Investors
on an Accelerated Valuation Date that arises as a result of a Listing shall
be determined assuming that the MDCP Co-Investors will receive Cash Inflows
on such Accelerated Valuation Date with respect to all of their
then-outstanding Ordinary Shares at the gross per share offering price for
Ordinary Shares on the date that the Listing becomes effective (the
"OFFERING PRICE") and will receive Cash Inflows in respect of all of their
then-outstanding Preferred Equity Securities in an amount equal to the
stated value thereof plus accrued and unpaid dividends (with it being
understood that all Cash Outflows and Cash Inflows for the MDCP
Co-Investors with respect to Ordinary Shares sold prior to the date of such
Listing shall be disregarded in calculating IRR of the MDCP Co-Investors on
an Accelerated Valuation Date that arises as a result of a Listing).
(vi) In determining IRR of the MDCP Co-Investors for purposes of
calculating vesting with respect to Class B Convertible Shares, as of any
date of determination, all Class A Convertible Shares shall be assumed to
have vested and been converted into Class D Convertible Shares, a number of
Class B Convertible Shares that would be vested and convertible as a result
of the IRR calculation as of the date of determination shall be assumed to
have vested and been converted into Class D Convertible Shares, no Class C
Convertible Shares shall be assumed to have vested and been converted into
Class D Convertible Shares and all Class D Convertible Shares (including as
assumed issued as a result of this sentence) shall be assumed to have been
converted into Ordinary Shares. In determining IRR of the MDCP Co-Investors
for purposes of calculating vesting with respect to the Class C Convertible
Shares, as of any date of determination, all Class A Convertible Shares,
Class B Convertible Shares and Class C Convertible Shares shall be assumed
to have vested and been converted into Class D Convertible Shares and all
Class D Convertible Shares (including as assumed issued as a result of this
sentence) shall be assumed to have been converted into Ordinary Shares.
(vii) In addition to the vesting otherwise herein described, all
or any portion of the Class A Convertible Shares, Class B Convertible
Shares and Class C Convertible Shares may be vested in the discretion of
the Board exercised at any time.
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(d) EFFECT OF TERMINATION ON VESTING. If an Executive's employment
with the Company terminates for any reason, such Executive's Convertible Shares
shall be vested and fully convertible with respect to that portion of such
Executive's Convertible Shares that were vested and convertible on the date of
such termination (such Executive's "TERMINATION DATE"), and, unless otherwise
determined by the Board, any portion of such Executive's Convertible Shares that
were not vested and convertible as of such Executive's Termination Date shall
not vest from and after the Termination Date and shall not be convertible into
Class D Convertible Shares from and after the Termination Date.
(e) CONVERSION PROCEDURES FOR CLASS D CONVERTIBLE SHARES. An Executive
may, upon payment in full in cash of the Conversion Price per share, convert all
or any portion of his or her outstanding Class D Convertible Shares into
Ordinary Shares at any time and from time to time. As a condition to any
conversion of any Class D Convertible Shares, such Executive shall make all
investment representations as required by the Management Equity Plan. An
Executive shall effect conversion of his Class D Convertible Shares into
Ordinary Shares by delivering (i) written notice of such conversion to the
Company (to the attention of the Company's Chief Executive Officer or
Secretary), together with such Executive's written acknowledgment that he or she
has read and has been afforded an opportunity to ask questions of management of
the Company regarding all financial and other information provided to or
requested by such Executive regarding the Company and (ii) payment of an amount
equal to the product of (A) the Conversion Price per share multiplied by (B) the
number of Ordinary Shares to be acquired upon such conversion. Payment of the
conversion price for Class D Convertible Shares shall be made in cash (including
check, bank draft or money order) or, in the sole discretion of the Board, by
delivery of a promissory note (if in accordance with policies approved by the
Board). No Convertible Share issued hereunder or upon conversion of any other
class of Convertible Shares, shall be convertible after the seventh anniversary
of the Underlying Date of Issuance. When used herein, the "Underlying Date of
Issuance" means (i) with respect to any Class A Convertible Share, Class B
Convertible Share or Class C Convertible Share, the date of issuance for such
Convertible Share and (ii) with respect to any Class D Convertible Share, the
date of issuance for the Class A Convertible Share, the Class B Convertible
Share or the Class C Convertible Share from which such Class D Convertible Share
has been converted.
3. REPRESENTATIONS AND WARRANTIES: ACKNOWLEDGMENTS.
(a) In connection with the purchase and sale of Executive Stock, each
Executive represents and warrants as follows:
(i) Executive Stock being acquired by such Executive pursuant to
this Agreement shall not be disposed of in contravention of applicable
securities laws.
(ii) Such Executive is sophisticated in financial matters and is
able to evaluate the risks and benefits of the investment in the Executive
Stock.
(iii) Such Executive is able to bear the economic risk of such
Executive's investment in Executive Stock acquired hereunder for an
indefinite period of time and
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acknowledges that the Executive Stock may not be sold in contravention of
applicable securities laws.
(iv) This Agreement constitutes the legal, valid and binding
obligation of such Executive, enforceable in accordance with its terms, and
the execution, delivery and performance of this Agreement by such Executive
do not and will not conflict with, violate or cause a breach of any
agreement, contract or instrument to which such Executive is a party or any
judgment, order or decree to which such Executive is subject.
(b) As an inducement to the Company to issue Executive Stock hereunder
to each Executive, and as a condition thereto, each such Executive acknowledges
and agrees that:
(i) neither the issuance of the Executive Stock hereunder to such
Executive nor any provision contained herein shall entitle such Executive
to remain in the employment of, or to serve as an officer or director to,
the Group Companies or affect the right of the Company to terminate such
Executive's employment or service as an officer, or director at any time;
(ii) this Agreement and the Management Equity Plan shall not form
part of any contract of employment or contract for services between the
Company or any Subsidiary and each Executive;
(iii) the benefit to each Executive of participation in this
Agreement and the Management Equity Plan shall not form any part of his
remuneration or count as his remuneration for any purpose and shall not be
pensionable;
(iv) if an Executive ceases to be employed by the Company or any
Subsidiary, he shall not be entitled to compensation for the loss of any
right or benefit or prospective right or benefit under this Agreement and
the Management Equity Plan whether by way of damages for unfair dismissal,
wrongful dismissal, breach of contract or otherwise; and
(v) the Company shall have no duty or obligation to disclose to
such Executive, and such Executive shall have no right to be advised of,
any material information regarding the Company and its Subsidiaries at any
time prior to, upon or in connection with the repurchase of Executive Stock
upon the termination of such Executive's employment with the Company and
its Subsidiaries, the transfer of Executive Stock pursuant to PARAGRAPHS 4,
5, or 8 hereto, the conversion of a Convertible Share granted hereunder or
as otherwise provided hereunder.
4. REDEMPTION OPTION.
(a) In the event any Executive ceases to be employed by, or to serve
as an officer, or director for, the Company or its Subsidiaries for any reason
(such Executive's "TERMINATION"), all of such Executive's Executive Stock other
than Ordinary Shares acquired pursuant to PARAGRAPH 1 hereof (whether held by
such Executive or one or more of such Executive's transferees, "REDEEMABLE
STOCK") may be redeemed or purchased by the Company and/or the
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MDCP Co-Investors pursuant to the terms and conditions set forth in this
PARAGRAPH 4 (the "REDEMPTION OPTION"). For the avoidance of doubt (but without
prejudice to rights to redeem or purchase Ordinary Shares issued or issuable
upon conversion of Convertible Shares), Ordinary Shares acquired pursuant to
PARAGRAPH 1 hereof are not subject to redemption or purchase pursuant to this
PARAGRAPH 4 or otherwise.
(b) In the case of any Termination other than a termination of an
Executive's employment for Cause, the purchase price for each Class A
Convertible Share, Class B Convertible Share and Class C Convertible Share shall
be such Executive's Original Cost for such share, and the purchase price for
each Class D Convertible Share and Ordinary Share shall be the Fair Market Value
for such share. In the event of an Executive's termination for Cause, the
purchase price for each Convertible Share and each Ordinary Share shall be the
lower of (i) the Fair Market Value of such share and (ii) the Original Cost for
such share.
(c) The Company may elect to redeem or purchase all or any portion of
an Executive's Redeemable Stock by delivering written notice (the "REDEMPTION
NOTICE") to the holder or holders of such Executive's Redeemable Stock within 90
days after such Executive's Termination (180 days in the case of such
Executive's Termination upon death or disability). The Redemption Notice shall
set forth the number of shares of Redeemable Stock to be acquired from each
holder of such Executive's Redeemable Stock, 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 redeemed or purchased by the Company shall first be
satisfied to the extent possible from the shares of Redeemable Stock held by
such Executive at the time of delivery of the Redemption Notice. If the number
of shares of Redeemable Stock then held by such Executive is less than the total
number of shares of Redeemable Stock the Company has elected to redeem or
purchase, the Company shall purchase the remaining shares elected to be redeemed
or purchased from the other holder(s) of such Executive's Redeemable Stock under
this Agreement, pro rata according to the number of shares of such Executive's
Redeemable Stock held by such other holder(s) at the time of delivery of such
Redemption Notice (determined as close as practicable to the nearest whole
shares). The number of shares of Redeemable Stock to be purchased hereunder
shall be allocated among such Executive and the other holders of such
Executive's Redeemable Stock (if any) pro rata according to the number of shares
of such Executive's Redeemable Stock to be purchased from such persons.
(d) If for any reason following an Executive's Termination, the
Company does not elect to purchase all of such Executive's Redeemable Stock
pursuant to the Redemption Option, the MDCP Co-Investors shall be entitled to
exercise the Redemption Option for the shares of Redeemable Stock the Company
has not elected to purchase in accordance with PARAGRAPH 4(c) (the "AVAILABLE
SHARES"). As soon as practicable after the Company has determined that there
will be Available Shares, but in any event within 45 days after such Executive's
Termination, the Company shall give written notice (the "REDEMPTION OPTION
NOTICE") to the MDCP Co-Investors setting forth the number of Available Shares
and the aggregate purchase price therefor. The MDCP Co-Investors may elect to
purchase any or all of the Available Shares by giving written notice to the
Company within 30 days after the Redemption Option Notice has been given by the
Company. As soon as practicable, and in any event within ten days after the
expiration of the 30-day period set forth above, the Company shall notify each
holder of Redeemable Stock as to the
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number of shares being purchased from such holder hereunder by the MDCP
Co-Investors (the "SUPPLEMENTAL REDEMPTION NOTICE"). At the time the Company
delivers the Supplemental Redemption Notice to the holder(s) of Redeemable
Stock, the Company shall also deliver written notice to the MDCP Co-Investors
setting forth the number of shares the MDCP Co-Investors are entitled to
purchase, the aggregate purchase price and the time and place of the closing of
the transaction. The number of Class A Convertible Shares, Class B Convertible
Shares, Class C Convertible Shares, Class D Convertible Shares and Ordinary
Shares to be repurchased under PARAGRAPH 4(c) and this PARAGRAPH 4(d) shall be
allocated among the Company and the MDCP Co-Investors pro rata according to the
number of shares of Redeemable Stock to be purchased by each of them.
(e) The closing of the purchase and sale of the Redeemable Stock
pursuant to the Repurchase Option shall take place on the date designated by the
Company in the Redemption Notice or Supplemental Redemption Notice (as the case
may be), which date shall not be more than 60 days nor less than five days after
the delivery of the later of either such notice to be delivered. The Company
and/or the Investors shall pay for the Redeemable Stock to be purchased pursuant
to the Redemption Option by delivery of a check or wire transfer of funds in the
aggregate amount of the purchase price for such shares. The purchasers of
Redeemable Stock hereunder shall be entitled to receive customary
representations and warranties from the sellers regarding the sellers' good
title to such shares free and clear of any liens or encumbrances).
(f) In the event that the Company or the MDCP Co-Investors elect to
exercise rights to redeem or purchase Redeemable Stock pursuant to this
PARAGRAPH 4, the Company or MDCP Co-Investors shall make all Redeemable Stock
acquired pursuant to this PARAGRAPH 4 available for sale to any member of the
Company's management approved in accordance with the Management Equity Plan as
promptly as practicable after a transferee has been identified in accordance
with the Management Equity Plan; PROVIDED that the obligations of the Company
and the MDCP Co-Investors pursuant to this PARAGRAPH 4(f) shall be subject to
the management member so identified purchasing the Convertible Shares or
Ordinary Shares at the same price, in the same manner and on the same terms on
which the Company or the MDCP Co-Investors acquired the Redeemable Stock.
(g) The right of the Company and the MDCP Co-Investors to repurchase
Class D Convertible Shares and Ordinary Shares pursuant to this PARAGRAPH 4
shall terminate upon the earlier of a Sale of the Company or a Listing.
5. RESTRICTIONS ON TRANSFER.
(a) TRANSFER OF EXECUTIVE STOCK. No Executive shall sell, transfer,
assign, pledge or otherwise dispose of (whether with or without consideration
and whether voluntarily or involuntarily or by operation of law) (a "TRANSFER")
any interest in any shares of Executive Stock, except pursuant to the provisions
of PARAGRAPH 4 hereof, this PARAGRAPH 5 or in connection with a Sale of the
Company, unless otherwise agreed to by the Company.
(b) CERTAIN PERMITTED TRANSFERS. The restrictions contained in this
PARAGRAPH 5 shall not apply with respect to transfers of shares of Executive
Stock (i) pursuant to applicable
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laws of descent and distribution or (ii) among an Executive's family group;
provided that such restrictions shall continue to be applicable to shares of
such Executive Stock after any such transfer and the transferees of such
Executive Stock shall have agreed in writing to be bound by the provisions of
this Agreement. An Executive's "FAMILY GROUP" means such Executive's spouse,
descendants (whether natural or adopted), siblings and siblings' descendants and
any trust solely for the benefit of Executive and/or such Executive's spouse,
descendants, siblings and/or siblings' descendants.
(c) TAG-ALONG RIGHTS. At least 30 days prior to any sale by any MDCP
Co-Investor of Ordinary Shares, which sale will cause the aggregate number of
Ordinary Shares sold by the MDCP Co-Investors and the Co-Investors subsequent to
September 17, 2002 to be more than 25% of the total issued share capital of the
Company in any transaction or series of transactions (excluding any Transfer (v)
to any Person as an equity kicker in connection with financing or sales of
Preferred Equity Securities in connection with the Take-Over Offer and related
transactions, (w) in a Public Sale, (x) to any of its members or Affiliates or
their members, partners, shareholders or Affiliates, (y) to a co-investor (each,
a "CO-INVESTOR") on or prior to September 17, 2003 or (z) to a member of
management of the Company and its Subsidiaries (the "EXCLUDED TRANSFERS")), such
MDCP Co-Investor shall deliver written notice (the "SALE NOTICE") to each
Executive specifying in reasonable detail the identity of the prospective
transferee(s), the number of shares to be sold and the terms and conditions of
the proposed Transfer. Each Executive may elect to include any Ordinary Shares
and Class D Convertible Shares in the contemplated Transfer at the same price
per share and on the same terms by delivering written notice to the MDCP
Co-Investors within 30 days after delivery of the Sale Notice; PROVIDED that in
the event that an Executive elects to transfer Class D Convertible Shares
pursuant to this PARAGRAPH 5(c), the price per share paid to an Executive in
respect of each Class D Convertible Share shall be reduced by the Conversion
Price per share for such Class D Convertible Share and upon such Transfer and
the payment of the per share price, each such Class D Convertible Share shall be
convertible into one Ordinary Share upon payment of the Conversion Price per
share to the Company. If any Executive has elected to participate in such
Transfer, each of the MDCP Co-Investors proposing to make such Transfer and each
such Executive shall be entitled to sell in the contemplated Transfer, at the
same price and on the same terms, a number of Ordinary Shares and Class D
Convertible Shares equal to the product of (i) the quotient determined by
dividing (A) the percentage of Ordinary Shares and Class D Convertible Shares
owned by such Person by (B) the aggregate percentage of Ordinary Shares and
Class D Convertible Shares collectively owned by all persons participating in
such Transfer and (ii) the aggregate number of Ordinary Shares to be sold in the
contemplated Transfer. In determining whether the 25% threshold has been
crossed, all related Transfers shall be taken into account, but no Excluded
Transfers shall be taken into account.
FOR EXAMPLE, if the Sale Notice contemplated a sale of 100 Ordinary
Shares, and if the MDCP Co-Investors participating in such Transfer at
such time own 40% of all Ordinary Shares and if an Executive elects to
participate and such Executive owns 2% of all Ordinary Shares and if
other persons owning an aggregate of 10% of all Ordinary Shares elect
to participate in the contemplated sale, the MDCP Co-Investors would
be entitled to sell 76.9 shares
10
(40% DIVIDED BY 52% x 100 shares), such Executive would be entitled to
sell 3.9 shares (2% DIVIDED BY 52% x 100 shares) and the other persons
would be entitled to sell 19.2 shares in the aggregate (10% DIVIDED BY
52% x 100 shares).
Notwithstanding the immediately foregoing sentence, in the event of a Transfer
(other than a Transfer in connection with which the Board and the holders of a
majority of Ordinary Shares are exercising their rights pursuant to PARAGRAPH 8
hereof) that causes the rights of the Executives pursuant to this PARAGRAPH 5(c)
to be triggered, each Executive shall be entitled to sell in the contemplated
Transfer, at the same price and on the same terms, a number of Ordinary Shares
and Class D Convertible Shares equal to the product of (i) the quotient
determined by dividing (A) the percentage of Ordinary Shares and Class D
Convertible Shares owned by such Person by (B) the aggregate percentage of
Ordinary Shares and Class D Convertible Shares collectively owned by all persons
participating in such Transfer and (ii) the aggregate number of Ordinary Shares
to be sold in the contemplated Transfer plus the aggregate number of Ordinary
Shares sold by the MDCP Co-Investors and the Co-Investors in all Transfers
(other than Excluded Transfers) prior to the date of the contemplated Transfer.
The number of Ordinary Shares and Class D Convertible Shares which an Executive
is entitled to sell pursuant to this PARAGRAPH 5(c) shall be subject to ratable
cut-back in relation to other executives that have acquired Ordinary Shares and
Class D Convertible Shares (it being understood that in such circumstances, such
executives shall have priority over the proposing transferor) in the event that
the number of shares which Executives in the aggregate are entitled to sell in
such contemplated Transfer exceeds the number of shares proposed to be sold in
the contemplated Transfer. The rights of the Executives pursuant to this
paragraph shall terminate as of the date that the aggregate percentage of shares
which the Executives have been entitled to sell pursuant to this PARAGRAPH 5(c)
(whether or not exercised) relative to their aggregate holdings of Ordinary
Shares and Class D Convertible Shares equals the aggregate percentage of
Ordinary Shares which the MDCP Co-Investors and the Co-Investors have sold in
all Transfers plus the contemplated Transfer (after giving effect to the rights
of the Executives pursuant to this sentence) relative to the aggregate holdings
of Ordinary Shares held by the MDCP Co-Investors and the Co-Investors.
Each person transferring Ordinary Shares or Class D Convertible Shares pursuant
to this PARAGRAPH 5(c) shall pay his, her or its pro rata share (determined on
the basis of consideration received or receivable by such person in such
transaction relative to the aggregate consideration received or receivable by
all persons participating in such transaction in their capacity as selling
stockholders) of the reasonable expenses incurred by the persons transferring
shares in connection with such Transfer and shall be obligated to join in any
indemnification or other obligations that the MDCP Co-Investors agree to provide
in connection with such Transfer (other than any such obligations that relate
specifically to another person such as indemnification with respect to
representations and warranties given by such other person regarding such other
person's title to and ownership of Ordinary Shares and Class D Convertible
Shares). Notwithstanding the foregoing, other than with respect to
representations and warranties given by such person regarding such person's
title to and ownership of Ordinary Shares and Class D Convertible Shares and
covenants regarding such person, (x) the aggregate indemnification obligations
or other obligations for which such person shall be liable shall not exceed such
person's pro rata portion (determined on the basis of consideration received or
receivable by such
11
person in such transaction relative to the aggregate consideration received or
receivable by all persons participating in such transaction in their capacity as
selling stockholders) of such indemnification obligation or other obligation and
(y) in no event shall any holder of Executive Stock be required to assume any
indemnification or other obligation in excess of the greater of (A) 50% of the
after-tax proceeds received or receivable by such person as a result of such
transaction and (B) the aggregate Acquisition Cost for the equity securities
sold by such holder in such transaction.
(d) TERMINATION OF RESTRICTIONS.
(i) The restrictions on Transfer of shares of Executive Stock set
forth in this PARAGRAPH 5 shall continue with respect to each share of
Executive Stock following any Transfer thereof.
(ii) Notwithstanding any provision in this Agreement to the
contrary, following the consummation of the Company's initial Listing, the
restrictions on Transfer of Ordinary Shares and Class D Convertible Shares
set forth in this PARAGRAPH 5 shall terminate (A) with respect to Ordinary
Shares purchased pursuant to PARAGRAPH 1, as of the date of the Company's
initial Listing, and (B) with respect to all other Ordinary Shares and
Class D Convertible Shares in equal tranches on each of December 31, 2005,
December 31, 2006 and December 31, 2007.
(iii) The restrictions on Transfer set forth in this PARAGRAPH 5
shall not terminate with respect to any Class A Convertible Shares, Class B
Convertible Shares and Class C Convertible Shares.
6. PARTICIPATION RIGHTS.
(a) If the Company proposes to issue any newly issued additional
Ordinary Shares (the "NEW SHARES") to the MDCP Co-Investors or any of their
Affiliates or Co-Investors after the date hereof (other than in connection with
the consummation of the Take-Over Offer) and the MDCP Co-Investors or such
Affiliates or Co-Investors participate in such issuance of New Shares, each
Executive shall have the right to purchase on the same terms and conditions a
pro rata portion of the New Shares equal to the product of (i) the total number
of New Shares to be issued, MULTIPLIED BY (ii) a fraction, (A) the numerator of
which is the number of Class D Convertible Shares and Ordinary Shares held by
such Executive as of the date hereof and (B) the denominator of which is the
total number of Class D Convertible Shares and Ordinary Shares which are held by
all shareholders immediately prior to the proposed issuance.
(b) The Company shall give each Executive written notice of any
proposed issuance of New Shares (the "OPTION ISSUANCE NOTICE") describing the
price and terms upon which the Company proposes to issue and sell such New
Shares. During the 10-day period following the date of delivery of the Option
Issuance Notice (the "ELECTION PERIOD") each Executive may exercise his, her or
its right to purchase New Shares in accordance with this PARAGRAPH 6, for the
price and upon the terms and conditions specified in the Option Issuance
12
Notice by giving written notice to the Company and stating therein the quantity
of New Shares to be purchased.
(c) In the event that any Executive fails to exercise his right to
subscribe for any New Shares which it is entitled to subscribe for under this
PARAGRAPH 6, the Company shall have 180 days following the Election Period to
issue or enter into an agreement to issue and sell the New Shares proposed to be
sold at a price and upon terms not substantially more favorable to the MDCP
Co-Investors, its Affiliates and other prospective subscribers therefor than
those specified in the Option Issuance Notice. In the event the Company has not
issued the New Shares or entered into an agreement to issue the New Shares
within the said 180-day period, the Company shall not thereafter issue or
otherwise transfer such New Shares without first offering such New Shares to the
Executives in the manner provided in this PARAGRAPH 6.
(d) If an Executive elects to subscribe for any New Shares pursuant to
this PARAGRAPH 6, the closing of such subscription shall occur at such time and
at such location selected by the Company.
(e) Notwithstanding anything else to the contrary set forth herein,
the provisions of this PARAGRAPH 6 shall not apply to any Excluded Issuances.
7. ADDITIONAL RESTRICTIONS ON TRANSFER. Each holder of Executive Stock
agrees not to effect any public sale or distribution of any Executive Stock or
other equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for any of the Company's equity securities, during
the seven days prior to and the 180 days after the effectiveness of any Listing,
except as part of such Listing or if otherwise permitted by the Company.
8. SALE OF THE COMPANY.
(a) If the Board and the holders of a majority of the Ordinary Shares
approve a Sale of the Company (the "APPROVED SALE"), all holders of Executive
Stock shall consent to and raise no objections against the Approved Sale, and if
the Approved Sale is structured as a sale of stock, the holders of Executive
Stock shall agree to sell their shares of Executive Stock on the terms and
conditions approved by the Board and the holders of a majority of Ordinary
Shares. The holders of Executive Stock shall take all necessary and desirable
actions in connection with the consummation of the Approved Sale.
(b) The obligations of the holders of Executive Stock with respect to
the Approved Sale are subject to the satisfaction of the following conditions:
(i) upon the consummation of the Approved Sale, all of the holders of Ordinary
Shares shall receive the same form and amount of consideration per Ordinary
Share, or if any holders of the Ordinary Shares are given an option as to the
form and amount of consideration to be received, all holders shall be given the
same option; (ii) no holder of Executive Stock shall be required to join in any
indemnification obligations or other obligations (other than with respect to
representations and warranties given by such person regarding such person's
title to and ownership of Executive Stock or covenants with respect to such
holder) (A) in excess of such person's pro rata portion
13
(determined on the basis of consideration received or receivable by such holder
of Executive Stock in such transaction relative to the aggregate consideration
received or receivable by all holders of the Company's equity securities in
their capacity as such) of such indemnification obligations or other obligations
or (B) in excess of the greater of (I) 50% of the after-tax proceeds received or
receivable by such person as a result of such transaction and (II) the aggregate
Acquisition Cost for the equity securities sold by such holder in such
transaction and (iii) all holders of Class D Convertible Shares shall be given
an opportunity to either (A) exercise their rights to convert to Ordinary Shares
prior to the consummation of the Approved Sale and participate in such sale as
holders of Ordinary Shares or (B) upon the consummation of the Approved Sale,
receive in exchange for such Class D Convertible Shares consideration equal to
the amount determined by multiplying (1) the same amount of consideration per
Ordinary Share received by the holders of Ordinary Shares in connection with the
Approved Sale less the Conversion Price per Class D Convertible Share by (2) the
number of Ordinary Shares issuable upon conversion of such Class D Convertible
Shares.
(c) Each holder of Executive Stock shall bear his or her pro rata
share (determined on the basis of consideration received or receivable by such
holder of Executive Stock in such transaction relative to the aggregate
consideration received or receivable by all holders of the Company's equity
securities in their capacity as such) of the costs of any sale of Executive
Stock pursuant to an Approved Sale to the extent such costs are incurred for the
benefit of all holders of Ordinary Shares and are not otherwise paid by the
Company or the acquiring party. Costs incurred by each such holder of Executive
Stock on his or her own behalf shall not be considered costs of the transaction
hereunder.
(d) Notwithstanding anything else to the contrary set forth herein or
the Company's Articles of Association, in the event of a Sale of the Company
(whether or not such Sale of the Company is an Approved Sale), each holder of
Executive Stock acknowledges that (i) the consideration to be received in
exchange for each Class A Convertible Share, Class B Convertible Share and Class
C Convertible Share that is unvested as of the closing date of the Sale of the
Company (after giving effect to any acceleration under paragraph 2(c) hereof)
shall equal the LESSER OF (x) the amount per share paid to holders of Ordinary
Shares in such transaction triggering a Sale of the Company and (y) the Original
Cost for such Convertible Share and (ii) the consideration to be received or
receivable in exchange for each Class D Convertible Share shall equal the amount
determined by multiplying (x) the same amount of consideration per Ordinary
Share received or receivable by the holders of Ordinary Shares in connection
with the Sale of the Company less the Conversion Price per Class D Convertible
Share by (y) the number of Ordinary Shares issuable upon conversion of such
Class D Convertible Shares. In furtherance of the acknowledgments in this
PARAGRAPH 8(d), each holder of Executive Stock agrees that (A) all unvested
Class A Convertible Shares, Class B Convertible Shares and Class C Convertible
Shares which are not vested in connection with a Sale of the Company shall
automatically be deemed transferred to a buyer of the Company and cancelled,
without further action on the part of such buyer, the Company or any Executive,
in connection with the consummation of such Sale of the Company upon payment by
the buyer or its designee of an amount in cash (or other form of consideration
payable in connection with such Sale of the Company) equal to the LESSER OF the
number of Class A Convertible Shares, Class B Convertible Shares and Class C
Convertible Shares held by an Executive multiplied by the amount per share paid
to holders of Ordinary
14
Shares in such transaction triggering a Sale of the Company and the Original
Cost for all such unvested Class A Convertible Shares, Class B Convertible
Shares and Class C Convertible Shares and (B) all Class D Convertible Shares
which are not converted to Ordinary Shares in connection with such Sale of the
Company shall automatically be deemed transferred to a buyer of the Company and
cancelled, without further action on the part of such buyer, the Company or an
Executive, in connection with consummation of such Sale of the Company upon
payment by the buyer or its designee of an amount in cash (or other form of
consideration payable in connection with such Sale of the Company) equal to the
amount determined by multiplying (1) the same amount of consideration per
Ordinary Share received or receivable by the holders of Ordinary Shares in
connection with the Approved Sale less the Conversion Price per Class D
Convertible Share by (2) the number of Ordinary Shares issuable upon conversion
of such Class D Convertible Shares.
9. VOTING AGREEMENT. So long as the MDCP Co-Investors, their
Affiliates and Co-Investors collectively hold a majority of the Ordinary Shares
of the Company, each Executive holding Ordinary Shares shall vote all of his or
her Ordinary Shares (and, in the event such holder is entitled to vote any of
the Company's other securities for the election of directors, such holder shall
vote all such securities) and take all other necessary or desirable actions (in
such holder's capacity as a stockholder of the Company) as are requested by the
MDCP Co-Investor Majority in order to cause the representatives to be elected as
members of the Board as directed by the MDCP Co-Investor Majority. In addition,
each holder shall not vote his or her Ordinary Shares (or other voting
securities) in connection with the removal of any MDCP Co-Investor's designees
or any other Board member as a director unless and until the MDCP Co-Investor
Majority directs such holder how to vote on such removal. In addition, each
holder of Ordinary Shares shall at all such times vote his or her Ordinary
Shares (and such other voting securities) and Convertible Shares on all matters
on which they are entitled to vote as directed by the MDCP Co-Investor Majority
as long as such vote is not adversely discriminatory to an Executive or holders
of Convertible Shares in a manner different from the MDCP Co-Investor Majority
or holders of Ordinary Shares, respectively. The provisions of this paragraph 9
shall terminate as of the effective date of the Company's initial Listing or
upon consummation of a Sale of the Company. Notwithstanding anything to the
contrary set forth in this paragraph 9, each holder shall cast all votes in
respect of his Ordinary Shares, other voting securities of the Company and
Convertible Shares (to the extent that such shares are entitled to vote) in
favor of the conversion of the Company from a public company to a private
company or a private company to a public company.
10. DEFINITIONS.
(a) "ACCELERATED VALUATION DATE" means the first date on which either
a Sale of the Company or an initial Listing occurs (i.e., the date upon which
the Sale of the Company is consummated or an initial Listing becomes effective).
(b) "ACQUISITION COST" means, with respect to any equity securities,
the aggregate subscription price or purchase price for such securities together
with any other amounts contributed to or invested in the Company allocable to
such equity securities (with any such investment or contribution that is being
used to subscribe for or purchase securities being
15
allocated to the shares so purchased or subscribed for and with any such
investment or contribution that is not being used to subscribe for or purchase
securities being allocated ratably among the Ordinary Shares comprising such
equity securities).
(c) "ADJUSTED EBITDA" means, for any annual period, the consolidated
net income of the Company (excluding net income related to or derived from
exceptional items) PLUS, in each case only to the extent deducted in determining
such net income, (i) the amount of the provision for income taxes for the
Company for such period, (ii) the amount of net interest expense of the Company
during such period for Indebtedness for Borrowed Money, (iii) the amount of
dividends actually paid by the Company to, or accrued by the Company with
respect to, holders of Preferred Equity Securities (other than the Company or
one of its Subsidiaries) during such period, and (iv) depreciation and
amortization charges of the Company for such period, all determined on a
consolidated basis in accordance with Irish generally accepted accounting
principles. Adjusted EBITDA shall be determined on the basis of the audited
consolidated annual financial statements of the Company.
(d) "AFFILIATE" of any Person, means a Person controlling, controlled
by or under common control with such Person.
(e) "AGGREGATE EQUITY PRICE" means the aggregate Acquisition Cost in
respect of all Ordinary Shares issued (whether to the MDCP Co-Investors,
pursuant to the Management Equity Plan or other investors) in connection with
the settlement of consideration pursuant to the Take-Over Offer and the
refinancing of indebtedness and payment of fees and expenses in connection
therewith.
(f) "APPLICABLE CLASS B VALUATION DATE" means each of December 31,
2005, December 31, 2006 and December 31, 2007.
(g) "APPLICABLE VALUATION DATE" means any Applicable Class B Valuation
Date or the Class C Valuation Date.
(h) "ASSOCIATED COMPANY" means any company having an Equity Share
Capital of which not less than 20% in nominal value is beneficially owned by any
Group Company.
(i) "CASH EQUIVALENTS" means, as of any date of determination, cash
plus cash equivalents of the Company, determined on a consolidated basis in
accordance with Irish generally accepted accounting principles.
(j) "CASH INFLOWS" shall be calculated (i) in accordance with
paragraph 2(c)(v) with respect to (x) equity securities remaining on a Class B
Valuation Date or a Class C Valuation Date, (y) equity securities sold through
the date of a Sale of the Company and (z) equity securities remaining on the
date of a Listing and (ii) for all other purposes by calculating cash payments
actually received or receivable by the MDCP Co-Investors on or prior to the
Valuation Date in exchange for their equity securities, whether such payments
are received or receivable from the Company or a third party; PROVIDED that in
the event any consideration to be received by the MDCP Co-Investors in
connection with any sale of equity securities is deferred
16
consideration, contingent consideration or non-cash consideration, the Cash
Inflows to be received by the MDCP Co-Investors with respect to such deferred
consideration, contingent consideration and/or non-cash consideration shall,
solely for purposes of calculating Cash Inflows as of such Accelerated Valuation
Date, be determined with reference to the fair market value thereof as of such
Accelerated Valuation Date by a Person appointed by the president of the
Institute of Chartered Accountants -- England (the "APPRAISER"), whose services
shall for this purpose be paid for by the Company and whose determination shall
(absent manifest error) be binding and conclusive; PROVIDED further that for
purposes of calculating Cash Inflows, no management, closing or other fees paid
to the MDCP Co-Investors or their Affiliates by or on behalf of the Company
and/or its Subsidiaries shall be included (other than an amount equal to
E38,000,000 (or such lesser closing fee actually paid to the MDCP Co-Investors
or their Affiliates) multiplied by a fraction, (x) the numerator of which is the
aggregate Acquisition Cost of Ordinary Shares owned by the MDCP Co-Investors on
or prior to September 17, 2002 less the Acquisition Cost of Ordinary Shares
transferred by the MDCP Co-Investors to their Co-Investors and its Affiliates on
or prior to September 17, 2003 or acquired pursuant to the Management Equity
Plan on or prior to January 17, 2003 and (y) the denominator of which is the
Aggregate Equity Price minus the Acquisition Cost of Ordinary Shares acquired
pursuant to the Management Equity Plan.
(k) "CASH OUTFLOWS" as used herein shall include the sum of all cash
payments and investments made by the MDCP Co-Investors in and to the Company or
its Subsidiaries to acquire equity securities.
(l) "CAUSE" shall mean, with respect to any Executive, (i) the
commission of actual or attempted fraud, embezzlement, theft, misappropriation,
serious misconduct or gross default by such Executive against or in respect of a
Group Company or such Executive's duties for a Group Company, which relates to a
material amount or which results in a criminal conviction or settlement with
criminal penalties or future restrictions or in material loss or damage to that
Group Company or other Group Companies; (ii) the refusal or failure by such
Executive to carry out his duties to a Group Company to a material degree,
following a written warning that dismissal may result; (iii) conviction of a
crime in relation to the business or assets of a Group Company, which has, in
the reasonable opinion of the Board acting in accordance with the recommendation
of the Company's chief executive officer (or chief operating officer where such
Executive is the chief executive officer), a material adverse effect upon a
Group Company or its shareholders, other than (A) violation of the Road Traffic
Acts and (B) a criminal matter in respect of which such Executive has been
indemnified by a Group Company and is entitled to indemnification, (iv) knowing
violation of the Foreign Corrupt Practices Act, or (v) material breach of a
material, formal agreement in writing (other than an employment agreement)
between such Executive and the Company or the Group Company by which such
Executive is or was employed or serves as an officer or director; PROVIDED that
for the avoidance of doubt, the termination of an Executive's employment, or
service as an officer or director, by a Group Company shall not be for Cause if
it results wholly or mainly from (v) such Executive's death or disability, (w)
such Executive's retirement on grounds of age or pursuant to an early retirement
plan of the Group Company that employs the Executive or for which you serve as
an officer or director, (x) such Executive's voluntary resignation (unless such
Executive is subject to internal or external proceedings likely to lead to a
termination for Cause at the time of such resignation),
17
(y) such Executive's redundancy, or (z) the Group Company that employs such
Executive, or for which Executive serves as an officer, or director, ceasing for
any reason to be a Group Company.
(m) "CLASS A CONVERTIBLE SHARES" has the meaning given to such term in
the Company's Articles of Association.
(n) "CLASS B CONVERTIBLE SHARES" has the meaning given to such term in
the Company's Articles of Association.
(o) "CLASS C CONVERTIBLE SHARES" has the meaning given to such term in
the Company's Articles of Association.
(p) "CLASS C VALUATION DATE" means December 31, 2007.
(q) "CLASS D CONVERTIBLE SHARES" has the meaning given to such term in
the Company's Articles of Association.
(r) "CONVERSION PRICE" means the excess of the fair market value of an
Ordinary Share as of the date of sale of a Convertible Share over the
subscription price for such Convertible Share (or, in the case of Class D
Convertible Shares, the subscription price for the Convertible Share from which
it was converted).
(s) "CONVERTIBLE SHARES" means each of the Class A Convertible Shares,
Class B Convertible Shares, Class C Convertible Shares and Class D Convertible
Shares.
(t) "ELIGIBLE CLASS B CONVERTIBLE SHARES" means Class B Convertible
Shares that are (but for the penultimate sentence of PARAGRAPH 2(c)(ii))
scheduled to be eligible for vesting on an Applicable Class B Valuation Date
that is after the Accelerated Valuation Date (i.e., shares not eligible for
vesting prior to such Accelerated Valuation Date).
(u) "EQUITY SHARE CAPITAL" shall have the meaning assigned in Section
155 of the Companies Act, 1963.
(v) "EXCLUDED ISSUANCES" means the issuance of (i) any Ordinary Shares
after the date hereof for management incentive and/or compensation purposes,
(ii) any Ordinary Shares (other than issuances to the MDCP Co-Investors, its
Affiliates and the Co-Investors in their capacity as equity holders of the
Company) issued as consideration for an acquisition or joint venture
transaction, (iii) any Ordinary Shares issued as an "equity kicker" in respect
of indebtedness for borrowed money or in respect of Preferred Equity Securities,
(iv) any Ordinary Shares issued upon conversion of any of the Convertible
Shares, (v) any options, warrants or rights to acquire, or shares convertible
into, Ordinary Shares listed in clauses (i) through (iv), and (vi) Ordinary
Shares issued in connection with or pursuant to a Public Sale.
(w) "EXECUTIVE STOCK" shall mean all Ordinary Shares issued or
issuable hereunder or acquired hereinafter by any Executive (including any
Ordinary Shares issued or issuable (either directly or indirectly) upon
conversion of any Executive's Convertible Shares). Executive Stock shall
continue to be Executive Stock in the hands of any holder other than an
18
Executive (except for the Company and the Co-Investors and except for
transferees in a Public Sale), and except as otherwise provided herein, each
such other holder of Executive Stock shall succeed to all rights and be subject
to all and obligations attributable to an Executive as a holder of Executive
Stock hereunder. Executive Stock shall also include shares of the Company's
capital stock and other securities issued with respect to Executive Stock by way
of a stock split, stock dividend or other recapitalization.
(x) "FAIR MARKET VALUE" of each share of Executive Stock means the
average of the closing prices of the sales of Ordinary Shares on all securities
exchanges on which the Ordinary Shares may at the time be listed on the day
immediately prior to Executive's termination. If at any time the Ordinary Shares
are not listed on any securities exchange, the Fair Market Value shall be the
fair value of the Ordinary Shares determined in good faith by the Board (acting
as experts and not arbitrators and without taking into account the effect of any
contemporaneous repurchase of Class A Convertible Shares, Class B Convertible
Shares and Class C Convertible Shares under PARAGRAPH 4 hereof). If a terminated
Executive reasonably disagrees with such determination, the Board and such
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
Redemption Notice or the Supplemental Redemption Notice, Fair Market Value shall
be determined by the Appraiser, who shall be instructed to submit to the Board
and the Executive a report within 30 days of its engagement setting forth such
determination. The expenses of the Appraiser shall be borne by the terminated
Executive unless the Appraiser's valuation is not less than 7.5% greater than
the amount determined by the Board, in which case, the costs of the Appraiser
shall be borne by the Company. The determination of such Appraiser shall (absent
manifest error) be final and binding upon all parties. Notwithstanding the
foregoing, the "Fair Market Value" of any Executive Stock that is a Class A
Convertible Share, Class B Convertible Share or Class C Convertible Share shall
be the Original Cost for such Convertible Share and the "Fair Market Value" of
any Executive Stock that is a Class D Convertible Share means the Fair Market
Value of an Ordinary Share determined in accordance with this definition MINUS
the Conversion Price for such Class D Convertible Share.
(y) "5% OWNER" means any Person that owns 5% or more of the Company's
Ordinary Shares on a fully-diluted basis.
(z) "GROUP COMPANIES" means the Company, JSG and their respective
Subsidiaries and Associated Companies and "GROUP COMPANY" means any of the Group
Companies.
(aa) "INDEBTEDNESS FOR BORROWED MONEY" means, with respect to the
Company and its Subsidiaries at any date, without duplication: (i) all
obligations of the Company and its Subsidiaries for borrowed money or in respect
of loans or advances; (ii) all obligations of the Company and its Subsidiaries
evidenced by bonds, debentures, notes or other similar instruments; (iii) all
obligations in respect of letters of credit, whether or not drawn, and bankers'
acceptances issued for the account of the Company and its Subsidiaries; (iv) all
capitalized lease liabilities of the Company and its Subsidiaries; (v) all
interest rate protection agreements of the Company and its Subsidiaries (valued
on a market quotation basis); (vi) all obligations of the Company and its
Subsidiaries secured by a contractual lien; (vii) all guarantees of obligations
of
19
Persons other than Company and its Subsidiaries in connection with any of the
foregoing; and (viii) any accrued interest, prepayment premiums or penalties
related to any of the foregoing, in each case calculated as though the payment
is made on an Accelerated Valuation Date or Applicable Valuation Date; PROVIDED
that Indebtedness for Borrowed Money shall not include any obligations of any of
the Company or any of its Subsidiaries, on the one hand, to the Company or any
other of its Subsidiaries, on the other hand.
(bb) "INDEPENDENT THIRD PARTY" means any Person who, immediately prior
to the contemplated transaction, is not a 5% Owner, is not controlling,
controlled by or under common control with any 5% Owner and is not the spouse or
descendent (by birth or adoption) of any 5% Owner.
(cc) "IRR" means, as of the Applicable Valuation Date, the annual
interest rate (compounded quarterly and expressed as a percentage) which, when
used to calculate the net present value as of such Applicable Valuation Date of
all Cash Inflows and all Cash Outflows, causes the difference between Cash
Inflows and Cash Outflows to equal zero. The IRR will be calculated in good
faith by the Board, which determination shall be conclusive and binding unless
the holders of a majority of Convertible Shares (and Ordinary Shares issued upon
conversion of Convertible Shares) then outstanding (the "MAJORITY HOLDERS")
reasonably disagree with such calculation and give written notice of such
disagreement within 30 days after the Board has made its determination of IRR (a
"DISPUTE NOTICE"). If a Dispute Notice is delivered, the Board and a
representative designated by the Majority Holders (the "REPRESENTATIVE") will
negotiate in good faith to agree on the calculation of IRR. If such agreement is
not reached within 30 days after the delivery of the Dispute Notice, IRR shall
be calculated by the Appraiser, which shall be instructed to submit to the Board
and such Executive a report within 30 days of its engagement setting forth such
calculation (with it being understood that the Appraiser shall be engaged in
reference to the calculation of IRR (but not with respect to an audit or
re-audit of the Company's books and records or the calculation of Total Value
and the components thereof)). The expenses of the Appraiser shall be borne by
the Majority Holders unless the Appraiser's IRR calculation is greater than the
amount determined by the Board, in which case, the costs of the Appraiser shall
be borne by the Company. The determination of such Appraiser shall (absent
manifest error) be final and binding upon all parties.
(dd) "JSG" means Jefferson Smurfit Group plc, an Irish public limited
company.
(ee) "LISTING" means the admission of all or any part of the Ordinary
Shares to the Official List of The Irish Stock Exchange Limited or the Official
List of the UK Listing Authority, and to trading on the market for listed
securities of the London Stock Exchange or to trading on the Alternative
Investment Market or the taking effect of any granting of permission to deal in
the same on any recognized investment exchange (as that term is used in the
Financial Services Act 1986) or the registration of all or any of the Ordinary
Shares (or equivalent securities of any Subsidiary or American Depository
Receipts with respect to any of the forgoing) on Form F-1, F-2 or F-3 (or any
similar long-form or short-form registrations) pursuant to the United States
Securities Act of 1933 (as amended) or any similar US federal law, or any
similar listing or registration by the Company of the Ordinary Shares on the
public stock exchange or securities market in any other jurisdiction.
20
(ff) "MDCP CO-INVESTOR MAJORITY" means the holders of a majority of
the Ordinary Shares held by all MDCP Co-Investors.
(gg) "MDCP CO-INVESTORS" means, collectively, MDCP IV Global
Investments LP, MDCP III Global Investments LP, MDSE III Global Investments LP
and any Affiliate of the foregoing that owns or holds Ordinary Shares as of the
date of determination and "MDCP Co-Investor" means any of the MDCP Co-Investors.
(hh) "ORIGINAL COST" of each Ordinary Share purchased hereunder on or
prior to January 17, 2003 shall be equal to the Per Share Subscription Price and
of each Convertible Share purchased hereunder shall be equal to E0.001 and
thereafter shall be the purchase price per share paid therefor as set forth on
the signature page executed by Executive and accepted by the Company, in each
case as proportionately adjusted for all subsequent stock splits, stock
dividends and other recapitalizations.
(ii) "PER SHARE SUBSCRIPTION PRICE" means E10.00 per share, or in the
event that the Aggregate Equity Price exceeds E732,000,000, the "Per Share
Subscription Price" shall equal the Aggregate Equity Price divided by 73,200,000
(with it being understood that in no event shall the Per Share Subscription
Price for Ordinary Shares issued on or before 120 days after the date that the
Take-Over Offer becomes or has been declared unconditional in all respects
exceed the Acquisition Cost per Ordinary Share for the MDCP Co-Investors).
(jj) "PERMITTED TRANSFEREE" means any holder of Executive Stock who
acquired such stock pursuant to a transfer permitted by PARAGRAPH 5(b).
(kk) "PERSON" means an individual, a partnership, a limited liability
company an unlimited liability company, a company limited by guarantee, 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.
(ll) "PREFERRED EQUITY SECURITIES" means any equity securities of the
Company or any of its Subsidiaries which are limited to a fixed sum or
percentage of stated value in respect to the rights of the holders thereof to
participate in dividends or in the distribution of assets upon any liquidation,
dissolution or winding up of the Company or any such Subsidiary.
(mm) "PUBLIC SALE" means (x) any sale after a Listing in any European
Union member state or (y) in the case of a Listing in the United States, any
sale pursuant to a registered public offering under the Securities Act or any
sale to the public pursuant to Rule 144 promulgated under the Securities Act
effected through a broker, dealer or market maker.
(nn) "SALE OF THE COMPANY" means the sale of the Company to an
Independent Third Party or affiliated group of Independent Third Parties
pursuant to which such party or parties acquire (i) capital stock of the Company
possessing the voting power to elect a majority of the Company's board of
directors (whether by merger, consolidation or sale or transfer of the Company's
capital stock) or (ii) all or substantially all of the Company's assets
determined on a consolidated basis.
21
(oo) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(pp) "SUBSIDIARY" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, not less than 50% of the total
voting power of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing general partner of such
limited liability company, partnership, association or other business entity.
(rr) "TAKE-OVER OFFER" means an offer for the entire issued and to be
issued share capital of JSG made by the Company or one of its Subsidiaries.
(ss) "TOTAL VALUE" means the result equal to (i) six (6) multiplied by
Adjusted EBITDA, PLUS (ii) Cash Equivalents in excess of E40,000,000 MINUS (iii)
Indebtedness for Borrowed Money, MINUS (iv) the aggregate stated value of, plus
accrued but unpaid dividends with respect to, any Preferred Equity Securities.
(tt) "VALUATION DATE" means an Accelerated Valuation Date or an
Applicable Valuation Date.
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 requested), sent by reputable overnight
courier service (charges prepaid) or sent by facsimile (hard copy to follow) to
the recipient at the address or facsimile number indicated below:
TO THE COMPANY:
MDCP Acquisitions plc
c/o Madison Dearborn Partners, LLC
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
22
WITH COPIES TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000)000-0000
Attn: Xxxxxxx X. Xxxxxx, P.C.
TO EXECUTIVE:
At the address listed below Executive's signature on the signature
page attached hereto.
TO THE MDCP CO-INVESTORS:
c/o Madison Dearborn Partners LLC
Three First National Plaza
Suite 3800
00 X. Xxxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
WITH COPIES TO:
c/o Madison Dearborn Partners, LLC
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
and
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000)000-0000
Attn: Xxxxxxx X. Xxxxxx, P.C.
or such other address or facsimile number or to the attention of such other
person as the recipient party shall have specified by prior written notice to
the sending part. Any notice under this
23
Agreement shall be deemed to have been given when so delivered or sent or, if
mailed, five days after deposit in the mail, two days after being sent by
reputable overnight courier service (charges prepaid) or on the same day if
received by facsimile during business hours on a business day (hard copy to
follow).
12. GENERAL PROVISIONS.
(a) 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.
(b) SEVERABILITY. Whenever possible, each provision of this Agreement
shall 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 shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) COMPLETE AGREEMENT. This Agreement, those documents expressly
referred to herein, the Company's Articles of Association, the Registration
Rights Agreement, the Corporate Governance Agreement and, with respect to any
employee party to such an employment letter, any employment letter between the
Company or one of its Subsidiaries and an Executive 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.
(d) 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.
(e) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by each
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.
(f) CHOICE OF LAW. This Agreement shall be governed by the internal
law of Ireland. Any suit or action brought against any Executive hereunder
should be brought exclusively in the courts of Ireland (it being understood
that, except as set forth in this sentence, nothing contained in this
SUBPARAGRAPH (f) shall limit any party's rights to bring any suit against any
party (other than any Executive) or with respect to the subject matter hereof in
any other jurisdiction); provided that in the case more than one Executive is
bringing a claim against the Company on a set of related facts, all such claims
shall be joined in a single proceeding in Ireland.
24
(g) REMEDIES. Each of the parties to this Agreement (including the
Investors) shall be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including reasonable attorneys 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 an 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.
(h) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived with respect to any Executive only with the prior written
consent of the Company and the Majority Holders; provided that any such
amendment or waiver that adversely discriminates against an Executive in a
manner that is adversely disproportionate to such Executive relative to the
Majority Holders shall be effective against such Executive only with the prior
written consent of such Executive; provided further that this Agreement may be
amended and waived with respect to the MDCP Co-Investors' rights under this
Agreement only with the prior written consent of the MDCP Co-Investor Majority.
(i) THIRD-PARTY BENEFICIARIES. Certain provisions of this Agreement
are entered into for the benefit of and shall be enforceable by the MDCP
Co-Investors as provided herein.
(j) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal 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.
(k) RIGHTS OF THE COMPANY. Nothing in this Agreement shall interfere
with or limit in any way the right of the Company to terminate an Executive's
employment, or service as an officer or director at any time (with or without
cause), nor confer upon any Executive any right to continue in the employ of, or
to serve as an officer or director for, the Company for any period of time or to
continue his or her present (or any other) rate of compensation, and in the
event of his or her termination of employment or termination of his service as
an officer, or director (including, but not limited to, termination by the
Company without cause) any portion of such Executive's Convertible Shares that
were not previously vested and convertible shall be forfeited. Nothing in this
Agreement shall confer upon any Executive any right to be selected again as a
Management Equity Plan participant.
(l) ADJUSTMENTS. In the event of a reorganization, recapitalization,
stock dividend or stock split, or combination or other change in the Ordinary
Shares, the Board may, in order to prevent the dilution or enlargement of rights
granted hereunder, make such adjustments in the number and type of shares
authorized by the Management Equity Plan, the number and type of shares in
respect of which the Convertible Shares granted hereunder are convertible and
the Conversion Price specified herein as may be determined to be appropriate and
equitable. Any such adjustment shall be subject to confirmation by the Company's
auditors.
25
(m) EFFECTIVENESS. This Agreement shall become effective upon
execution of this Agreement by each of the Company and an Executive. In the
event that this Agreement terminates pursuant to this SUBPARAGRAPH (m), each
Class A Convertible Share, Class B Convertible Share and Class C Convertible
Share purchased by an Executive pursuant to this Agreement prior to such
termination, shall, subject to any restrictions under applicable law, be
repurchased by the Company at the Original Cost therefor.
(n) TAXES. The Company shall be entitled, if necessary or desirable,
to withhold (or secure or require payment from an Executive in lieu of
withholding) the amount of any withholding or other tax due with respect to any
amount payable and/or shares issuable under this Agreement or the Management
Equity Plan, and the Company may defer any payment or issuance unless
indemnified to its satisfaction with regard to any tax matter for the amounts
payable or shares issuable. Each Executive hereby indemnifies the Company for
any tax, liability, loss, expense or penalty that the Company incurs as a result
of an Executive not paying the aggregate taxes which an Executive is required to
pay in respect of the Convertible Shares issued hereunder or the Ordinary Shares
issued in respect thereof (including, in each case, upon sale or disposition
thereof). Prior to withholding any amount or requiring any indemnification from
any Executive, the Company shall consult with the Executive and his tax advisors
regarding the withholding and the indemnification requested.
(p) TAX ADVICE. Each Executive will consult with his or her own tax
advisor regarding the tax treatment of the Ordinary Shares and the Convertible
Shares (it being understood that the Company is not giving an opinion with
respect to nor guaranteeing, and shall not be deemed to be giving an opinion
with respect to nor guaranteeing, any tax results or consequences). Without
limiting the generality of the foregoing, nothing herein shall prohibit the
Company from making any filings or reports it reasonably believes may be
required to be made with local governmental authorities in respect of the
Convertible Shares or the Ordinary Shares issued or issuable hereunder
(including upon sale or disposition thereof).
13. LISTING. In the event that the Board and the holders of a majority
of the Ordinary Shares (voting as a single class) then outstanding approve a
Listing, each Executive shall take all necessary or desirable actions in
connection with the consummation of the Listing as requested by the Company. In
the event that such Listing is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the capital
stock structure would adversely affect the marketability of the offering, each
Executive shall consent to and vote for a recapitalization, reorganization
and/or exchange of Ordinary Shares into securities that the managing
underwriters, the Board and the holders of a majority of the Ordinary Shares
then outstanding (voting as a single class) find acceptable, and each Executive
shall take all necessary or desirable actions in connection with the
consummation of the recapitalization, reorganization and/or exchange as
requested by the Company: provided that the resulting securities reflect and are
consistent with the rights and preferences set forth in the Company's Articles
of Association as in effect immediately prior to such Listing.
14. CERTIFICATES. In the event that any Executive requests or demands
that the Company issue one or more certificates representing the shares of
Executive Stock purchased hereunder, the Company may require that the
certificate be registered in the name of a nominee
26
or custodian designated by the Company (the "NOMINEE"), and that, as a condition
to such issuance, the Nominee will enter into an agreement with the Company and
the MDCP Co-Investor Majority which shall include, among other things, a
provision that the Nominee will not Transfer such Executive Stock except in
strict accordance with the terms of this Agreement (in which case the Nominee
shall give prior written notice of such Transfer to the Company and the MDCP
Co-Investor Majority) without the prior written consent of the Company and MDCP
Co-Investor Majority. In the event that the Nominee does not agree to enter into
an agreement with the Company, each holder of Executive Stock irrevocably agrees
that the Company shall be entitled to retain the certificates representing such
Executive Stock in furtherance of such holder's obligations hereunder.
* * * * *
27
IN WITNESS WHEREOF, this Amended and Restated
Management Equity
Agreement has been executed as of the date first written above.
MDCP ACQUISITIONS PLC
By: /s/ XXXXXX X. XXXXXXX
---------------------------
Its: --------------------------
28
/s/ XXXX XxXXXX
-------------------------------
Xxxx XxXxxx
Ordinary Shares Determined by
dividing E1,500,000 by the Per
Share Subscription Price
Aggregate Purchase Price for
Ordinary Shares E1,500,000
Class A Convertible Shares:______
Class B Convertible Shares:______
Class C Convertible Shares:______
Aggregate Purchase Price for
Convertible Shares:_____________
Executive's Address:
Xxxxxxxxxxx
Xxxxxxxxxx
Xxxxxxxxxx
Xxxxxx 0
(SIGNATURE PAGE TO
MANAGEMENT EQUITY AGREEMENT)
/s/ XXXXXXX X.X. SMURFIT
-------------------------------
Xxxxxxx X.X. Smurfit
Ordinary Shares Determined by
dividing E1,500,000 by the Per
Share Subscription Price
Aggregate Purchase Price for
Ordinary Shares E1,500,000
Class A Convertible Shares:______
Class B Convertible Shares:______
Class C Convertible Shares:______
Aggregate Purchase Price for
Convertible Shares:_____________
Executive's Address:
Fournaughts
Johnstown
Naas
Co Kildare
(SIGNATURE PAGE TO
MANAGEMENT EQUITY AGREEMENT)
/s/ XXX X. XXXXXX
-------------------------------
Xxx X. Xxxxxx
Ordinary Shares Determined by
dividing E1,500,000 by the Per
Share Subscription Price
Aggregate Purchase Price for
Ordinary Shares E1,500,000
Class A Convertible Shares:______
Class B Convertible Shares:______
Class C Convertible Shares:______
Aggregate Purchase Price for
Convertible Shares:_____________
Executive's Address:
0 Xxxxx Xxxxx
Xxxxxxxxxxx Xxxx
Xxxxxx
Xx Xxxxxx
(SIGNATURE PAGE TO
MANAGEMENT EQUITY AGREEMENT)
/s/ DR. XXXXXXX X.X. SMURFIT
-------------------------------
Dr. Xxxxxxx X.X. Smurfit
Ordinary Shares Determined by
dividing E54,000,000 by the Per
Share Subscription Price
Aggregate Purchase Price for
Ordinary Shares E54,000,000
Class A Convertible Shares:______
Class B Convertible Shares:______
Class C Convertible Shares:______
Aggregate Purchase Price for
Convertible Shares:_____________
Executive's Address:
Dr. Xxxxxxx X.X. Smurfit
Xxxxx Xxx Xxxxxxxx
0 Xxxxx Xxxxxx Xxxxxx
00000 Xxxxxx
(SIGNATURE PAGE TO
MANAGEMENT EQUITY AGREEMENT)
