Exhibit 10.7
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.___________________________________________________________________
FIFTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
EAGLE VENTURES LLC
A XXXXXXXX ISLANDS LIMITED LIABILITY COMPANY
___________________________________________________________________
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ARTICLE I DEFINED TERMS
Section 1.1 Definitions..................................................................................1
ARTICLE II FORMATION OF THE COMPANY
Section 2.1 Formation...................................................................................13
Section 2.2 Company Name................................................................................13
Section 2.3 The Certificate, etc........................................................................13
Section 2.4 Term of Company.............................................................................14
Section 2.5 Registered Agent and Office.................................................................14
Section 2.6 Principal Place of Business.................................................................14
Section 2.7 Qualification in Other Jurisdictions........................................................14
Section 2.8 Fiscal Year; Taxable Year...................................................................14
ARTICLE III PURPOSE AND POWERS OF THE COMPANY
Section 3.1 Purpose.....................................................................................14
Section 3.2 Powers of the Company.......................................................................15
Section 3.3 Certain Tax Matters.........................................................................15
ARTICLE IV MEMBERS
Section 4.1 Powers of Members...........................................................................15
Section 4.2 Units Generally.............................................................................15
Section 4.3 Meetings of Members.........................................................................16
Section 4.4 Business Transactions of a Member with the Company..........................................17
Section 4.5 No Cessation of Membership upon Bankruptcy..................................................17
Section 4.6 Confidentiality; Nonsolicitation; Non-Disparagement.........................................17
Section 4.7 Other Business for Kelso Members and Certain Members........................................19
Section 4.8 Additional Members..........................................................................20
ARTICLE V MANAGEMENT
Section 5.1 Board.......................................................................................21
Section 5.2 Meetings of the Board.......................................................................22
Section 5.3 Quorum and Acts of the Board................................................................23
Section 5.4 Electronic Communications...................................................................23
Section 5.5 Committees of Directors.....................................................................23
Section 5.6 Compensation of Directors...................................................................24
Section 5.7 Resignation.................................................................................24
Section 5.8 Removal of Directors........................................................................24
Section 5.9 Vacancies...................................................................................24
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Section 5.10 Directors as Agents.........................................................................25
Section 5.11 Subsidiaries................................................................................25
ARTICLE VI INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations, Warranties and Covenants of Members........................................26
Section 6.2 Additional Representations and Warranties of Management Members, Outside Investor
Members and Other Investor Members..........................................................27
Section 6.3 Additional Representations and Warranties of Xxxxx Members..................................28
Section 6.4 Additional Representations and Warranties of Zoullas, the Management Members and the
Outside Investor Members....................................................................29
Section 6.5 Certain Members.............................................................................29
ARTICLE VII CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS
Section 7.1 Capital Accounts............................................................................29
Section 7.2 Adjustments.................................................................................30
Section 7.3 Initial Capital Contributions; Initial SMI Funds Advance....................................30
Section 7.4 Additional Capital Contributions by Xxxxx...................................................30
Section 7.5 Additional Capital Contributions............................................................31
Section 7.6 Negative Capital Accounts...................................................................32
ARTICLE VIII POINTS
Section 8.1 Points......................................................................................32
Section 8.2 Ex-Management Members.......................................................................33
Section 8.3 Allocation of Points to Management Members upon Termination of Employment...................34
Section 8.4 Nontransferability of Awards................................................................36
Section 8.5 Amendment to the Points Plan................................................................37
ARTICLE IX ALLOCATIONS
Section 9.1 Book Allocations of Net Profit and Net Loss.................................................37
Section 9.2 Special Book Allocations....................................................................37
Section 9.3 Tax Allocations.............................................................................38
ARTICLE X DISTRIBUTIONS
Section 10.1 Explanation of Terms........................................................................39
Section 10.2 Distributions Generally.....................................................................41
Section 10.3 Distributions In Kind.......................................................................43
Section 10.4 No Withdrawal of Capital....................................................................44
Section 10.5 Withholding.................................................................................44
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Section 10.6 Restricted Distributions....................................................................45
Section 10.7 Tax Distributions...........................................................................45
Section 10.8 Eagle Bulk Shipping Advances................................................................45
Section 10.9 Benchmarked Points - Catch Up Payment.......................................................45
ARTICLE XI BOOKS AND RECORDS
Section 11.1 Books, Records and Financial Statements.....................................................46
Section 11.2 Filings of Returns and Other Writings; Tax Matters Partner..................................47
Section 11.3 Accounting Method...........................................................................47
Section 11.4 Appraisal...................................................................................48
ARTICLE XII LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 12.1 Liability...................................................................................48
Section 12.2 Exculpation.................................................................................48
Section 12.3 Fiduciary Duty..............................................................................48
Section 12.4 Indemnification.............................................................................48
Section 12.5 Expenses....................................................................................49
Section 12.6 Severability................................................................................49
ARTICLE XIII TRANSFERS OF INTERESTS
Section 13.1 Restrictions on Transfers of Interests or Special Membership Interests by Management
Members, Outside Investor Members and Other Investor Members................................49
Section 13.2 Estate Planning Transfers; Transfers upon Death of a Management Member, Outside Investor
Members or Other Investor Members...........................................................50
Section 13.3 Effect of Assignment........................................................................50
Section 13.4 Overriding Provisions.......................................................................51
Section 13.5 Put Rights with respect to Interests and Special Membership Interests Owned by Zoullas
and the Outside Investor Members............................................................51
Section 13.6 Involuntary Transfers.......................................................................53
Section 13.7 Assignment by the Company...................................................................54
Section 13.8 Substitute Members..........................................................................54
Section 13.9 Release of Liability........................................................................55
Section 13.10 Tag-Along and Drag-Along Rights; Initial Members Participation Rights.......................55
Section 13.11 Initial Public Offering.....................................................................58
Section 13.12 Right of First Offer........................................................................58
ARTICLE XIV DISSOLUTION, LIQUIDATION AND TERMINATION
Section 14.1 Dissolving Events...........................................................................59
Section 14.2 Dissolution and Winding-Up..................................................................59
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Section 14.3 Distributions in Cash or in Kind............................................................60
Section 14.4 Termination.................................................................................61
Section 14.5 Claims of the Members.......................................................................61
ARTICLE XV MISCELLANEOUS
Section 15.1 Notices.....................................................................................61
Section 15.2 Securities Act Matters......................................................................62
Section 15.3 Headings; Interpretation....................................................................62
Section 15.4 Entire Agreement............................................................................62
Section 15.5 Counterparts................................................................................62
Section 15.6 Governing Law; Attorneys' Fees; Forum; Jurisdiction; Service of Process.....................63
Section 15.7 Waiver of Jury Trial........................................................................63
Section 15.8 Waiver of Partition.........................................................................63
Section 15.9 Severability................................................................................63
Section 15.10 Further Actions.............................................................................63
Section 15.11 Amendments..................................................................................64
Section 15.12 Outside Investor Members Representative; Power of Attorney..................................64
Section 15.13 Power of Attorney...........................................................................65
Section 15.14 Fees and Expenses...........................................................................66
EXHIBITS
Exhibit A Joinder Agreement
SCHEDULES
Schedule A Initial Capital Commitments by Xxxxx Members, Management
Members, Outside Investor Members and Other Investor Members
Schedule B Management Points
Schedule C Initial Directors
Schedule D Post IPO Performance Percentages - Definitions
Schedule E Special Membership Interests
Schedule F Vested IPO Percentages for Management Members
Schedule 10.9 Benchmarked Points
Schedule 10.10 Fifth Amended Catch Up Payments
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FIFTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Fifth Amended and Restated Limited Liability Company Agreement of
Eagle Ventures LLC, a Xxxxxxxx Islands limited liability company (the
"Company"), is made as of November [ ], 2006 by and among the individuals or
entities listed under the heading "Xxxxx Members" on Schedule A hereto (each a
"Kelso Member" and collectively, the "Xxxxx Members"), Xxxxxxxxx Xxxxxxx
("Zoullas"), Xxxxxx X. Xxxxx ("Xxxxx"), Xxxxxx Xxxxxxx ("Xxxxxxx"), Xxxx
Xxxxxxxx ("Xxxxxxxx"), Xxxxx Xxxxxxx ("Xxxxxxx"), Intercontinental Shipping and
Trading Corp. ("IST"), Xxxxx Xxxxxxx ("Xxxxx"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"),
Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxx Xxxxx ("Xxxxx"), and Magnetite Asset
Investors III L.L.C. ("Magnetite," and, together with the Kelso Members,
Xxxxxxx, Xxxxx, Thouret, Ginsberg, IST, Xxxxx, Xxxxxxx, Xxxxxxxx and Xxxxx, the
"Initial Members") and such other Persons as may become Members of the Company
after the date hereof in accordance with Section 4.8 of this Agreement. Xxxxxxx,
Xxxxx, Thouret, Xxxxxxxx and Xxxxxxx and such other employees of the Company or
any Subsidiary of the Company as shall become members of the Company after the
date hereof are referred to as the "Management Members." IST, Xxxxx, Xxxxxxx and
Xxxxxxxx are collectively referred to as the "Outside Investor Members." Xxxxx
and Magnetite are collectively referred to as the "Other Investor Members." The
Xxxxx Members, Management Members, Outside Investor Members and Other Investor
Members are collectively referred to herein as the "Members."
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions.
"Accounting Period" means, for the first Accounting Period, the period
commencing on the day after the Initial Capital Contribution Date and ending on
the next Adjustment Date. All succeeding Accounting Periods shall commence on
the day after an Adjustment Date and end on the next Adjustment Date.
"Additional Capital Contribution Event" has the meaning set forth in
Section 7.4(a) of this Agreement.
"Additional Member" has the meaning set forth in Section 4.8(a) of this
Agreement.
"Adjusted Aggregate Post IPO Performance Percentage" has the meaning
set forth in Section 10.1(a)(ii) of this Agreement.
"Adjusted Carry Percentage" means, with respect to any Management
Member, the product of (x) such Management Member's Carry Percentage multiplied
by (y) the Carry Adjustment Factor.
"Adjusted Total Vested IPO Percentage" has the meaning set forth in
Section 10.1(a)(iii) of this Agreement.
"Adjusted Total Vested Service Percentage" shall have the meaning set
forth in Section 10.1(a)(i) of this Agreement.
"Adjustment Date" means the last day of each fiscal year of the Company
or any other date determined by the Board, in its sole discretion, as
appropriate for an interim closing of the Company's books.
"Affiliate" means, with respect to a specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with the specified Person. As used in
this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise; provided, that, for purposes of this Agreement, the
Company shall not be considered an Affiliate of any Kelso Member or any
affiliate or portfolio company of any Xxxxx Member.
"Aggregate Benchmark Withholdings" has the meaning set forth in Section
10.9 of this Agreement.
"Aggregate Investment" has the meaning set forth in Section 10.2(c) of
this Agreement.
"Aggregate Post IPO Performance Percentage" has the meaning set forth
in Section 10.1(a)(ii) of this Agreement.
"Aggregate Retainable Service Points" has the meaning set forth in
Section 8.3(d) of this Agreement.
"Agreement" means this Limited Liability Company Agreement of the
Company, as this agreement may be amended, modified, supplemented or restated
from time to time after the date hereof.
"Appraisal" has the meaning set forth in Section 11.4 of this
Agreement.
"Appraisal Date" has the meaning set forth in Section 11.4 of this
Agreement.
"Appraiser" has the meaning set forth in Section 11.4 of this
Agreement.
"Benchmark Amount" has the meaning set forth in Section 10.1(b) of this
Agreement.
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"Board" has the meaning set forth in Section 5.1(a) of this Agreement.
"Bulk Advance" has the meaning set forth in Section 10.8 of this
Agreement.
"Capital Account" has the meaning set forth in Section 7.1 of this
Agreement.
"Capital Contribution" means, for any Member, the total amount of cash
and the Fair Market Value of any property contributed to the Company by such
Member. For the avoidance of doubt, Special Membership Interest Funds shall not
be considered Capital Contributions.
"Carry Adjustment Factor" means a fraction, the numerator of which is
$125,000,000, and the denominator of which is the aggregate value of all Capital
Contributions and advances of Special Membership Interest Aggregate Funds made
to the Company since January 31, 2005 (other than Capital Contributions or
advances of Special Membership Interest Funds not made to the Company for good
xxxxx xxxx fide Company purposes); provided that in no event shall the Carry
Adjustment Factor be more than 1.
"Carry Percentage" has the meaning set forth in Section 10.1 of this
Agreement.
"Carrying Value" means with respect to any Interest of any Management
Member, Outside Investor Member or Other Investor Member purchased by the
Company, the value equal to the Capital Contribution made by the selling
Management Member, Outside Investor Member or Other Investor Member in respect
of any such Interest plus simple interest at a rate per annum equal to 6%, which
shall be deemed to be the carrying cost, from the date of such Capital
Contribution by such Management Member, Outside Investor Member or Other
Investor Member through the date of such purchase by the Company, less the
amount of distributions made in respect of such Interest (to the extent the
amount of such distributions does not exceed simple interest).
"Catch Up Payment" has the meaning set forth in Section 10.9 of this
Agreement.
"Certificate" means the Certificate of Formation of the Company and any
and all amendments thereto and restatements thereof filed on behalf of the
Company pursuant to the Xxxxxxxx Islands Act with the Republic of the Xxxxxxxx
Islands Registrar of Corporations.
"Code" means the U.S Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the recitals to this Agreement.
"Compensation Committee" has the meaning set forth in Section 5.5 of
this Agreement.
"Confidential Information" has the meaning set forth in Section 4.6(a)
of this Agreement.
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"Covered Person" means a current or former Member or Director, an
Affiliate of a current or former Member or Director, any officer, director,
shareholder, partner, member, employee, representative or agent of a current or
former Member or Director or any of their respective Affiliates, or any current
or former officer, employee or agent of the Company or any of its Affiliates.
"Deficit" has the meaning set forth in Section 9.2(a) of this
Agreement.
"Director" has the meaning set forth in Section 5.1(a) of this
Agreement.
"Disability" means with respect to a Management Member, the termination
of the employment of any Management Member by the Company or any Subsidiary of
the Company that employs such individual (or by the Company on behalf of any
such Subsidiary) as a result of such Management Member's incapacity due to
reasonably documented physical or mental illness that shall have prevented such
Management Member from performing his or her duties for the Company on a
full-time basis for more than six months and within 30 days after written notice
has been given to such Management Member, such Management Member shall not have
returned to the full time performance of his or her duties, in which case the
date of termination shall be deemed to be the last day of the aforementioned
30-day period, provided that in the case of any Management Member who, as of the
date of determination, is party to an effective services, severance or
employment agreement with the Company or any of its Subsidiaries, "Disability"
shall have the meaning, if any, specified in such agreement.
"Distributable Amounts" has the meaning set forth in Section 10.2 of
this Agreement.
"Drag-Along Rights" has the meaning set forth in Section 13.10(b) of
this Agreement.
"Eagle Shipping" means Eagle Shipping International (USA) LLC, a
Xxxxxxxx Islands Limited Liability Company.
"Economic Interest" means a Member's or Ex-Management Member's share of
the profits and losses of the Company and such Member's or Ex-Management
Member's right to receive distributions of the Company's assets, but shall not
include the right to vote on or participate in any decision or action of or by
the Members or any right to receive information concerning the business and
affairs of the Company.
"Ex-Management Member" has the meaning set forth in Section 8.2 of this
Agreement.
"Exit Event" shall mean a transaction or series of transactions (other
than an Initial Public Offering):
(a) involving the sale, transfer or other disposition by the Kelso
Members to one or more Persons that are not, immediately prior to
such sale, Affiliates of the Company or any Kelso Member, of all
or substantially all of both the Interests
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and Special Membership Interests of the Company beneficially owned
by the Xxxxx Members as of the date of such transaction; or
(b) involving the sale, Transfer or other disposition of all or
substantially all of the assets of the Company and its
Subsidiaries, taken as a whole, to one or more Persons that are
not, immediately prior to such sale, Transfer or other
disposition, Affiliates of the Company or any Xxxxx Member.
"Fair Market Value" means, as of any date,
(a) for purposes of determining the value of any property contributed
to or distributed by the Company, (i) in the case of
publicly-traded securities, the average of their last sales prices
on the applicable trading exchange or quotation system on each
trading day during the five trading-day period ending on such date
and (ii) in the case of any other property, the fair market value
of such property, as determined in good faith by the Board, or
(b) for purposes of determining the value of any Member's Interest or
Special Membership Interest in connection with Section 13.5 ("Put
Rights"), Section 13.6 ("Involuntary Transfers") or for other
purposes contemplated in this Agreement, (i) the fair market value
of such Interest as reflected in the most recent Appraisal without
additional premiums for control or discounts for minority
interests or restrictions on transfer or (ii) in the event no such
Appraisal exists with respect thereto or the Appraisal Date is
more than one year prior to the date of determination or the Board
otherwise determines in good faith that the use of such Appraisal
is inappropriate, the fair market value of such Interest or
Special Membership Interest, as applicable, as determined in good
faith by the Board;
provided that, in the event fair market value is to be determined
by the Board hereunder and such determination is disputed in good
faith on reasonable grounds by a majority of the Members directly
affected by such determination, then fair market value shall be
finally determined by arbitration in New York City in accordance
with the commercial rules of the American Arbitration Association,
and any such determination by the arbitration panel shall be final
and binding (the expenses of such arbitration to be borne equally
by the Company, on the one hand, and the affected disputing
Members, on the other hand).
"Financing Documents" has the meaning set forth in Section 13.5(b) of
this Agreement.
"Fifth LLC Effective Date" means the date of the Company's Fifth
Amended and Restated Limited Liability Company Agreement.
"Xxxxxxxx" has the meaning set forth in the recitals to this Agreement.
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"Xxxxx" has the meaning set forth in the recitals to this Agreement.
"Initial Capital Commitment" means, with respect to any Member, the
amount as set forth opposite the name of such Member on Schedule A hereto under
the heading "Initial Capital Commitment."
"Initial Capital Contribution" means, for any Member, the amount of
cash and the Fair Market Value of any property contributed to the Company by
such Member on or prior to the Initial Capital Contribution Date.
"Initial Capital Contribution Date" shall mean May 11, 2005.
"Initial SMI Funds Advance" means, for any Member, the amount of
Special Membership Interest Funds advanced to the Company by such Member on or
prior to the Initial Capital Contribution Date.
"Initial Members" has the meaning set forth in the recitals to this
Agreement.
"Initial Public Offering" or "IPO" means the first underwritten public
offering of the common stock of a Subsidiary of the Company to the general
public through a registration statement filed with the Securities and Exchange
Commission that covers (together with prior effective registrations) (i) not
less than 25% of the then outstanding shares of common stock of such Subsidiary
of the Company on a fully diluted basis or (ii) shares of such Subsidiary of the
Company that will be traded on any of the New York Stock Exchange, the American
Stock Exchange or the National Association of Securities Dealers Automated
Quotation System after the close of any such general public offering.
"Interest" means a Member's limited liability interest in the Company
(other than any Special Membership Interest), including such Member's Economic
Interest, the right, if any, to vote on or participate in any decision or action
of or by the Members (as such voting rights are represented by such Member's
Units) and the right to receive information concerning the business and affairs
of the Company, in each case to the extent provided for herein or as otherwise
required by the Xxxxxxxx Islands Act.
"Interest Priority Payments" means an aggregate amount equal to
$101,370.28
"Involuntary Transfer" has the meaning set forth in Section 13.6 of
this Agreement.
"Involuntary Transferee" has the meaning set forth in Section 13.6 of
this Agreement.
"IST" has the meaning set forth in the recitals to this Agreement.
"Xxxxx" has the meaning set forth in the recitals to this Agreement.
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"Xxxxxxx" has the meaning set forth in the recitals to this Agreement.
"Xxxxx" means KIA VII together with KEP VI.
"Xxxxx Investment Multiple" has the meaning set forth on Schedule D to
this Agreement.
"Xxxxx IRR" has the meaning set forth on Schedule D to this Agreement.
"Xxxxx Member" has the meaning set forth in the recitals to this
Agreement.
"Xxxxx Restriction Period" has the meaning set forth in Section
13.10(b) of this Agreement.
"Xxxxx Threshold Date" shall be deemed to occur at such time as the
Xxxxx Total Invested Capital has reached and amount equal to $126,681,771.
"Xxxxx Total Invested Capital" means the aggregate amount of all
Capital Contributions and advances of Special Membership Interest Aggregate
Funds by the Xxxxx Members.
"KEP VI" means KEP VI, LLC, a Delaware limited liability company.
"KIA VII" means Xxxxx Investment Associates VII, L.P., a Delaware
limited partnership.
"Management Member" has the meaning set forth in the recitals to this
Agreement. A Management Member shall be deemed not to be a "manager" within the
meaning of the Xxxxxxxx Islands Act (except to the extent Section 5.1(b)(i) of
this Agreement applies).
"Majority in Interest" means the holders of a majority of the Units
held by Members having the right to vote at a meeting of the Members.
"Magnetite" has the meaning set forth in the recitals to this
Agreement.
"Xxxxx" has the meaning set forth in the recitals to this Agreement.
"Xxxxxxxx Islands Act" means the Xxxxxxxx Islands Limited Liability
Company Act of 1996 (SS.22.1 et seq of the Republic of the Xxxxxxxx Islands
Associations Law), as the same may be amended from time to time.
"Maximum Amount" has the meaning set forth in Section 13.5(c) of this
Agreement.
"Member" has the meaning set forth in the recitals to this Agreement
and includes any Person admitted as an additional or substitute Member of the
Company pursuant to this Agreement.
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"Net Profits" and "Net Losses" means, with respect to any Accounting
Period, net income or net loss of the Company for such Accounting Period,
determined in accordance with ss. 703(a) of the Code, including any items that
are separately stated for purposes of ss. 702(a) of the Code, as determined in
accordance with federal income tax accounting principles with the following
adjustments:
(a) any income of the Company that is exempt from United States
federal income tax shall be included as income;
(b) any expenditures of the Company described in ss. 705(a)(2)(B) of
the Code or treated as expenditures pursuant to ss.
1.704-1(b)(2)(iv)(i) of the Treasury Regulations shall be treated
as current expenses;
(c) any items of income, gain, loss or deduction specially allocated
pursuant to this Agreement, including pursuant to Section 9.2,
shall be excluded from the determination of Net Profit and Net
Loss; and
(d) treating as an item of gain (loss) the excess (deficit), if any,
of the gross fair market value of property distributed in such
Accounting Period over (under) the amount at which such property
was carried on the books of the Company.
"Nordhaus" has the meaning set forth in the recitals to this Agreement.
"Other Investor Members" has the meaning set forth in the recitals to
this Agreement.
"Outside Investor Members" has the meaning set forth in the recitals to
this Agreement.
"Partnership Minimum Gain" shall have the meaning set forth in sections
1.704-2(b)(2) and 1.704-2(d) of the Treasury Regulations.
"Performance Factor" has the meaning set forth on Schedule D to this
Agreement.
"Performance Percentage" has the meaning set forth in Section
10.1(a)(ii) of this Agreement.
"Performance Points" has the meaning set forth in Section 8.1(a) of
this Agreement.
"Person" means any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
or other legal entity or organization.
"Points" has the meaning set forth in Section 8.1(a) of this Agreement.
"Post IPO Awarded Performance Points" has the meaning set forth in
Section 10.1(a)(ii) of this Agreement.
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"Post IPO Performance Percentage" has the meaning set forth in Section
10.1(a)(ii) of this Agreement.
"Post IPO Remaining Percentage" has the meaning set forth in Section
10.1(a)(ii) of this Agreement.
"Put Notice" has the meaning set forth in Section 13.5(a) of this
Agreement.
"Put Rights" has the meaning set forth in Section 13.5(a) of this
Agreement.
"Retainable Service Points" has the meaning set forth in Section 8.3(d)
of this Agreement.
"Resignation for Good Reason" means a voluntary termination of a
Member's employment with the Company or any Subsidiary of the Company that
employs such individual by such Member of his employment with the Company or any
such Subsidiary as a result of either of the following:
(a) without the Member's prior written consent, a significant
reduction by the Company or any such Subsidiary of his or her
current salary, other than any such reduction which is part of a
general salary reduction or other concessionary arrangement
affecting all employees or affecting the group of employees of
which the Member is a member (after receipt by the Company of
written notice from such Member and a 20-day cure period); or
(b) the taking of any action by the Company or any such Subsidiary
that would substantially diminish the aggregate value of the
benefits provided him or her under the Company's or such
Subsidiary's accident, disability, life insurance and any other
employee benefit plans in which he or she was participating on
the date of his or her execution of this Agreement, other than
any such reduction which is (i) required by law, (ii) implemented
in connection with a general concessionary arrangement affecting
all employees or affecting the group of employees of which the
Member is a member, (iii) generally applicable to all
beneficiaries of such plans (after receipt by the Company of
written notice and a 20-day cure period) or (iv) in accordance
with the terms of any such plan.
or, if such Member is a party to a services, severance or employment agreement
with the Company or a Subsidiary of the Company, the meaning as set forth in
such services or employment agreement.
"Restriction Period" means, with respect to any Management Member, a
period commencing on the date hereof and ending on the later of (i) the date on
which a Management Member or any transferee thereof permitted under Section 13.2
hereof, directly or indirectly, no longer retains any equity interest in the
Company and (ii) the termination of any severance
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payable pursuant to any employment, termination or severance agreement, if any,
entered into between such Management Member and the Company or any Subsidiary of
the Company.
"Retirement" means the termination of a Member's employment on or after
the date the Member attains age 65. Notwithstanding the foregoing, (i) with
respect to any Member who is a party to a services or employment agreement with
the Company or a Subsidiary of the Company, "Retirement" shall have the meaning,
if any, specified in such Member's services, severance or employment agreement
and (ii) in the event a Member whose employment with the Company or a Subsidiary
of the Company terminates due to Retirement continues to serve as a Director of
or a consultant to the Company or a Subsidiary of the Company, such
participant's employment with the Company or a Subsidiary of the Company shall
not be deemed to have terminated for purposes of Sections 8.3 and 13.5, until
the date as of which such Member's services as a Director of or consultant to
the Company or a Subsidiary of the Company shall have also terminated, at which
time the Member shall be deemed to have terminated employment due to retirement.
"ROFO" has the meaning set forth in Section 13.12(a) of this Agreement.
"ROFO Notice" has the meaning set forth in Section 13.12(a) of this
Agreement.
"Rule 144" has the meaning set forth in Section 6.1(b) of this
Agreement.
"Securities Act" means the Securities Act of 1933 as amended from time
to time.
"Service Percentage" has the meaning set forth in Section 10.1(a)(i) of
this Agreement.
"Service Points" has the meaning set forth in Section 8.1(a) of this
Agreement.
"Ship Sale" has the meaning set forth in Section 13.12(a) of this
Agreement.
"Special Interest Payment" has the meaning set forth in Section 10.8 of
this Agreement.
"Special Membership Interest" means, with respect to any Member, the
special debt membership interest in the Company issued to such Member in the
amount set forth on Schedule E, as such schedule may be amended from time to
time (including to account for any reduction in the Special Membership Interest
by virtue of Section 10.8).
"Special Membership Interest Aggregate Funds" means, with respect to
any Member, aggregate Special Membership Interest Funds advanced by such Member
in respect of all Special Membership Interests (whether or not currently
outstanding) issued to such Member.
"Special Membership Interest Funds" means, with respect to any
particular advance by a Member, cash funds advanced by a Member to the Company
in exchange for Special Membership Interests.
10
"Stub Performance Percentage Allocation" has the meaning set forth in
Section 10.1(a)(ii) of this Agreement.
"Subject Members" means the Management Members, Outside Investor
Members and any Additional Members.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture or other legal entity of which such Person (either
alone or through or together with any other Subsidiary) (a) owns, directly or
indirectly, fifty percent (50%) or more of the stock, partnership interests or
other equity interests which are generally entitled to vote for the election of
the board of directors or other governing body of such corporation, partnership,
joint venture of other legal entity; or (b) possesses, directly or indirectly,
control over the direction of management or policies of such corporation,
partnership, joint venture or other legal entity (whether through ownership of
voting securities, by agreement or otherwise).
"Subsidiary Board" has the meaning set forth in Section 5.11(a) of this
Agreement.
"Tag-Along Rights" has the meaning set forth in Section 13.10(a) of
this Agreement.
"Tax Matters Partner" has the meaning set forth in Section 11.2(b) of
this Agreement.
"Termination for Cause" means a termination of a Member's employment by
the Company or any Subsidiary of the Company that employs such individual (or by
the Company on behalf of any such Subsidiary), provided that any of the events
described below that give rise to such termination shall not have been cured
within 30 days after a Member receives written notice of termination from the
Company, due to such Member's (i) refusal or neglect to perform substantially
his or her employment-related duties, (ii) dishonesty, incompetence, willful
misconduct or breach of fiduciary duty, (iii) indictment for, conviction of, or
entering a plea of guilty or no lo contedere to, a crime constituting a felony
or his or her willful violation of any law, rule, or regulation (other than a
traffic violation or other offense or violation outside of the course of
employment which in no way adversely affects the Company and its Subsidiaries or
its reputation or the ability of the Member to perform his or her
employment-related duties or to represent the Company or any Subsidiary of the
Company that employs such Management Member) or (iv) material breach of any
written covenant or agreement with the Company or any of its Subsidiaries not to
disclose any information pertaining to the Company or such Subsidiary or not to
compete or interfere with the Company or such Subsidiary, provided that, in the
case of any Member who, as of the date of determination, is party to an
effective services, severance or employment agreement with the Company or a
Subsidiary of the Company, "Termination for Cause" shall have the meaning, if
any, specified in such agreement.
"Third Party" shall mean, in respect of any Transfer, one or more
Persons other than the Company, any Member or any of their respective
Affiliates.
"Thouret" has the meaning set forth in the recitals to this Agreement.
11
"Total Available Post IPO Remaining Performance Percentage" has the
meaning set forth on Schedule D to this Agreement.
"Total Performance Pool Points" has the meaning set forth in Section
10.1(a)(ii) of this Agreement.
"Total Service Percentage" shall have the meaning set forth in Section
10.1(a)(i) of this Agreement.
"Total Service Pool Points" shall have the meaning set forth in Section
10.1(a)(i) of this Agreement.
"Total Stub Performance Percentage" has the meaning set forth on
Schedule D to this Agreement.
"Total Vested IPO Percentage" has the meaning set forth in Section
10.1(a)(iii) of this Agreement.
"Transfer" means to directly or indirectly transfer, sell, pledge,
hypothecate or otherwise dispose of.
"Transferor Member" has the meaning set forth in Section 13.10(d).
"Treasury Regulations" means the Regulations of the Treasury Department
of the United States issued pursuant to the Code.
"Trigger Achieving Balance" has the meaning set forth in Section
10.2(b) of this Agreement.
"Trigger Multiple" means the Xxxxx Investment Multiple set forth on
Schedule 10.9.
"Unallocated Points" has the meaning set forth in Section 8.1(a) of
this Agreement.
"Units" has the meaning set forth in Section 4.2 of this Agreement.
"Unreturned Benchmark Withholdings" shall have the meaning set forth in
Section 10.9 of this Agreement.
"Unreturned Capital" means, with respect to any Member on any date of
determination, an amount equal to the excess, if any, of (x) the aggregate
amount of Capital Contributions made by such Member on or after the date of this
Agreement over (y) the aggregate amount of distributions made by the Company on
or after the date of this Agreement that constitute a return of the Capital
Contributions of such Member pursuant to Section 10.2.
12
"Vested IPO Percentage" has the meaning set forth in Section
10.1(a)(iii) of this Agreement.
"Vesting Service Catch Up Payments" means an aggregate amount equal to
$741,276.84.
"Zoullas" has the meaning set forth in the recitals to this Agreement.
ARTICLE II
FORMATION OF THE COMPANY
Section 2.1 Formation. The Company was formed upon the filing of the
Certificate pursuant to the Xxxxxxxx Islands Act with the Republic of the
Xxxxxxxx Islands Registrar of Corporations on January 27, 2005.
Section 2.2 Company Name. The name of the Company shall be Eagle
Ventures LLC. The business of the Company may be conducted under such other
names as the Board may from time to time designate, provided that the Company
complies with all relevant state laws relating to the use of fictitious and
assumed names.
Section 2.3 The Certificate, etc. Xxxxxx X. Xxxxx, Xx. is hereby
designated as an authorized person within the meaning of the Xxxxxxxx Islands
Act and shall be authorized to execute, deliver and file (or direct the
execution, delivery and filing of) any necessary amendments to the Certificate
with the Republic of the Xxxxxxxx Islands Registrar of Corporations. Each
Director is hereby authorized to execute, deliver, file and record all such
other certificates and documents, including amendments to or restatements of the
Certificate, and to do such other acts as may be appropriate to comply with all
requirements for the formation, continuation and operation of a limited
liability company, the ownership of property, and the conduct of business under
the laws of the Xxxxxxxx Islands and any other jurisdiction in which the Company
may own property or conduct business.
Section 2.4 Term of Company. The term of the Company commenced on the
date of the initial filing of the Certificate with the Republic of the Xxxxxxxx
Islands Registrar of Corporations. The Company may be terminated in accordance
with the terms and provisions hereof, and shall continue unless and until
dissolved as provided in Article XIV. The existence of the Company as a separate
legal entity shall continue until the cancellation of the Certificate as
provided in the Xxxxxxxx Islands Act.
Section 2.5 Registered Agent and Office. The Company's registered agent
in the Xxxxxxxx Islands shall be The Trust Company of the Xxxxxxxx Islands,
Inc., and office of such registered agent shall be Trust Company Complex,
Ajeltake Island, Ajeltake Road, Majuro,
13
Xxxxxxxx Xxxxxxx XX 00000. The Board may designate another registered
agent and/or registered office from time to time in accordance with the then
applicable provisions of the Xxxxxxxx Islands Act and any other applicable laws.
Section 2.6 Principal Place of Business. The principal place of
business of the Company shall be located at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The location of the Company's principal place of business may be changed
by the Board from time to time in accordance with the then applicable provisions
of the Xxxxxxxx Islands Act and any other applicable laws.
Section 2.7 Qualification in Other Jurisdictions. Any authorized Person
of the Company shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in a jurisdiction in which the Company may wish to conduct business.
Section 2.8 Fiscal Year; Taxable Year. The fiscal year of the Company
for financial accounting purposes shall end on December 31. The taxable year of
the Company for federal, state and local income tax purposes shall end on
December 31.
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY
Section 3.1 Purpose. The purposes of the Company are, and the nature of
the business to be conducted and promoted by the Company is, engaging in any
lawful act or activity for which limited liability companies may be formed under
the Xxxxxxxx Islands Act and engaging in all acts or activities as the Company
deems necessary, advisable or incidental to the furtherance of the foregoing.
Section 3.2 Powers of the Company. The Company shall have the power and
authority to take any and all actions that are necessary, appropriate,
advisable, convenient or incidental to or for the furtherance of the purposes
set forth in Section 3.1.
Section 3.3 Certain Tax Matters. The Members agree that, pursuant to
Treasury Regulation Section 301.7701-3, the Company shall elect to be classified
as a partnership for U.S. federal income tax purposes and under all
corresponding provisions of state or local income tax law and that Zoullas is
hereby authorized, in the name of and on behalf of the Company and each of the
Members, to sign and file with the U.S. Internal Revenue Service an Entity
Classification Election (IRS Form 8832) electing to have the Company classified
as a partnership for U.S. federal income tax purposes retroactive to the date of
formation of the Company, and any such action heretofore taken by Zoullas is
hereby ratified, confirmed and approved in all respects. The Company and the
Board shall not permit the registration or listing of interests in the
14
Company on an "established securities market," as such term is used in
Treasury Regulations section 1.7704-1.
ARTICLE IV
MEMBERS
Section 4.1 Powers of Members. The Members shall have the power to
exercise any and all rights or powers granted to the Members pursuant to the
express terms of this Agreement. The approval or consent of the Members shall
not be required in order to authorize the taking of any action by the Company
unless and then only to the extent that (i) this Agreement shall expressly
provide therefor, (ii) such approval or consent shall be required by
non-waivable provisions of the Xxxxxxxx Islands Act or (iii) the Board shall
determine that obtaining such approval or consent would be appropriate or
desirable. The Members, as such, shall have no power to bind the Company.
Section 4.2 Units Generally. The right of a Member to vote in its
capacity as a member of the Company shall be represented by membership units
(the "Units"). Unless otherwise determined by the Board, each Member shall
receive one Unit for each dollar of such Member's Capital Contribution. The
number of Units of each Member shall be set forth on Schedule A. Notwithstanding
anything to the contrary, Special Membership Interests shall not have voting
rights.
Section 4.3 Meetings of Members.
(a) Meetings; Notice of Meetings. Meetings of the Members, including
any special meeting, may be called by (i) the Board from time to time, (ii) any
Member, or Members, holding 25% or more of the Units or (iii) Zoullas so long as
he is Chief Executive Officer of Eagle Shipping and a Member of the Company.
Notice of any such meeting shall be given to all Members not less than three nor
more than 30 business days prior to the date of such meeting and shall state the
location, date and hour of the meeting and, in the case of a special meeting,
the nature of the business to be transacted. Meetings shall be held at the
location at the date and hour set forth in the notice of the meeting.
(b) Waiver of Notice. No notice of any meeting of Members need be given
to any Member who submits a signed waiver of notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Members need be specified in a written waiver
of notice. The attendance of any Member at a meeting of Members shall constitute
a waiver of notice of such meeting, except when the Member attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
15
(c) Quorum. Except as otherwise required by law or by the Certificate,
the presence in person or by proxy of the holders of record of a Majority in
Interest shall constitute a quorum for the transaction of business at such
meeting.
(d) Voting. If the Board has fixed a record date, every holder of
record of Units entitled to vote at a meeting of Members or to consent in
writing in lieu of a meeting of Members shall be entitled to one vote for each
such Unit outstanding in such Member's name at the close of business on such
record date. If no record date has been so fixed, then every holder of record of
such Units entitled to vote at a meeting of Members shall be entitled to one
vote for each Unit outstanding in his name on the close of business on the day
next preceding the day on which notice of the meeting is given or the first
consent in respect of the applicable action is executed and delivered to the
Company, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. Except as otherwise required by
applicable law, the Certificate or this Agreement, the vote of a majority of the
Units represented in person or by proxy at any meeting at which a quorum is
present shall be sufficient for the transaction of any business at such meeting.
(e) Proxies. Each Member may authorize any Person to act for such
Member by proxy on all matters in which a Member is entitled to participate,
including waiving notice of any meeting, or voting or participating at a
meeting. Every proxy must be signed by the Member or such Member's
attorney-in-fact. No proxy shall be valid after the expiration of three years
from the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Member executing it unless otherwise
provided in such proxy, provided, that such right to revocation shall not
invalidate or otherwise affect actions taken under such proxy prior to such
revocation.
(f) Organization. Each meeting of Members shall be conducted by such
Person as the Board may designate.
(g) Action Without a Meeting. Unless otherwise provided in this
Agreement, any action which may be taken at any meeting of the Members may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by a Majority in
Interest. Prompt notice of the taking of the action without a meeting by less
than unanimous written consent shall be given to those Members who have not
consented in writing.
Section 4.4 Business Transactions of a Member with the Company. Subject
to prior approval of the Board, a Member may lend money to, borrow money from,
act as surety or endorser for, guarantee or assume one or more specific
obligations of, provide collateral for, or transact any other business with the
Company, provided that any such transaction pursuant to any agreement entered
into after the date hereof shall be approved by a majority of the non-interested
Directors.
16
Section 4.5 No Cessation of Membership upon Bankruptcy. A Person shall
not cease to be a Member of the Company upon the happening, with respect to such
Person, of any of the events specified in Section 21 of the Xxxxxxxx Islands
Act.
Section 4.6 Confidentiality; Nonsolicitation; Non-Disparagement. The
covenants and restrictions contained in this Section 4.6 shall be in addition to
and not in lieu of any covenants or restrictions applying to any Member pursuant
to any employment, severance or services agreement between such Member and the
Company or any of its Subsidiaries.
(a) Confidentiality; Tax Information. Without the prior written consent
of a majority of the Board, except to the extent required by law, rule,
regulation or court order, each Subject Member shall not disclose any trade
secrets, customer lists, drawings, designs, marketing plans, sales plans,
management organization information (including data and other information
relating to members of the Board or management), operating policies or manuals,
business plans, financial records or other financial, commercial, business or
technical information relating to the Company or any of its Subsidiaries or
information designated as confidential or proprietary that the Company or any of
its Subsidiaries may receive belonging to suppliers, customers or others who do
business with the Company or any of its Subsidiaries (collectively,
"Confidential Information") to any third person unless such Confidential
Information has been previously disclosed to the public by the Company or is in
the public domain (other than by reason of such Subject Member's breach of this
Section 4.6(a)). Notwithstanding anything to the contrary herein or contained in
any other materials relating to an investment in the Company, each Subject
Member (and each employee, representative, or other agent of the foregoing) may
disclose to any and all persons, without limitation of any kind, the tax
treatment and any facts that may be relevant to the tax structure of the Company
and its Subsidiaries, provided, however, that no Subject Member (and no
employee, representative, or other agent thereof) shall disclose any other
information that is not relevant to understanding the tax treatment and tax
structure of the Company and its Subsidiaries (including the identity of any
Subject Member and any information that could lead another to determine the
identity of any Subject Member), or any other information to the extent that
such disclosure could reasonably result in a violation of any applicable
securities law.
(b) Non-Solicitation of Employees. Except as permitted under any
employment, severance or services agreement between such Subject Member and the
Company or any of its Subsidiaries, during the Restriction Period, no Subject
Member shall directly or indirectly induce any employee of the Company or any of
its Subsidiaries to terminate employment with such entity, and no Subject Member
shall directly or indirectly, either individually or as owner, agent, employee,
consultant or otherwise, employ, offer employment to or otherwise interfere with
the employment relationship of the Company or any of its Subsidiaries with any
person who is or was employed by the Company or such Subsidiary unless, at the
time of such employment, offer or other interference, such person shall have
ceased to be employed by such entity for a period of at least six months,
provided that, nothing in this Section 4.6(b) shall preclude such Subject Member
from placing advertisements during the Restriction Period in periodicals of
17
general circulation soliciting persons for employment or from employing any
person who comes to such Subject Member solely in response to such
advertisements.
(c) Non-Solicitation of Clients. Except as permitted under any
employment, severance or services agreement between such Subject Member and the
Company or any of its Subsidiaries, during the Restriction Period, no Subject
Member shall solicit or otherwise attempt to establish for himself or any other
person, firm or entity any business relationship with any person, firm or entity
which is, or during the 12-month period preceding the date such Subject Member
ceases to hold any equity interest in the Company was, a customer, client or
distributor of the Company or any of its Subsidiaries.
(d) Non-Disparagement. No Subject Member shall, directly or indirectly,
either individually or as owner, agent, employee, consultant or otherwise, make,
participate in the making of, or encourage any other Person to make, any
statement, whether written or oral, that criticizes, disparages or defames the
Company, any Subsidiary of the Company or the business conducted by the Company
or any Subsidiary of the Company.
(e) Injunctive Relief with Respect to Covenants. Each Subject Member
acknowledges and agrees that the covenants and obligations of such Subject
Member with respect to non-disparagement, nonsolicitation and confidentiality
herein relate to special, unique and extraordinary matters and that a violation
or threatened violation of any of the terms of such covenants or obligations
will cause the Company irreparable injury for which adequate remedies are not
available at law. Therefore, each Subject Member agrees, to the fullest extent
permitted by law, that the Company shall be entitled to an injunction,
restraining order or such other equitable relief (without the requirement to
post bond) restraining such Subject Member from committing any violation of the
covenants or obligations contained in this Section 4.6. These injunctive
remedies are cumulative and are in addition to any other rights and remedies the
Company may have at law or in equity. In connection with the foregoing
provisions of this Section 4.6, each Subject Member represents that his economic
means and circumstances are such that such provisions will not prevent him from
providing for himself and his family on a basis satisfactory to him.
(f) Unenforceable Restriction. It is expressly understood and agreed
that although each Subject Member and the Company consider the restrictions
contained in this Section 4.6 to be reasonable, if a final determination is made
by an arbitrator to whom the parties have assigned the matter or a court of
competent jurisdiction that any restriction contained in this Agreement is an
unenforceable restriction against any Subject Member, the provisions of this
Agreement shall not be rendered void but shall be reformed to apply as to such
maximum time and to such maximum extent as such arbitrator or court may
determine or indicate to be enforceable. Alternatively, if such arbitrator or
court finds that any restriction contained in this Agreement is unenforceable,
and such restriction cannot be reformed so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained herein.
18
(g) Ex-Management Members. The provisions of this Section 4.6 shall
apply to both Management Members and Ex-Management Members (as defined in
Section 8.2).
Section 4.7 Other Business for Xxxxx Members and Certain Members.
(a) Notwithstanding anything to the contrary contained in Section 4.6,
any Kelso Member or Affiliate thereof may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Company, and the Company,
the Directors and the Members shall have no rights by virtue of this Agreement
in and to such independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the business of
the Company, shall not be deemed wrongful or improper. No Xxxxx Member, Director
(other than any Subject Member who serves as a Director) or Affiliate thereof
shall be obligated to present any particular investment opportunity to the
Company even if such opportunity is of a character that, if presented to the
Company, could be taken by the Company, and any Kelso Member, Director (other
than any Subject Member who serves as a Director) or Affiliate thereof shall
have the right to take for such Person's own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
opportunity, provided that this Section 4.7(a) shall not apply to Subject
Members or any other Members who are employees of the Company or any of its
Subsidiaries.
(b) Notwithstanding anything to the contrary contained in Section 4.6,
any Outside Investor Member, Other Investor Member or Affiliate thereof (other
than Zoullas) may engage in or possess an interest in other business ventures of
any nature or description, independently or with others, similar or dissimilar
to the business of the Company, and the Company, the Directors and the Members
shall have no rights by virtue of this Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Company, shall not be
deemed wrongful or improper. No Outside Investor Member, Other Investor Member
or any of its Affiliates (other than Zoullas) shall be obligated to present any
particular investment opportunity to the Company even if such opportunity is of
a character that, if presented to the Company, could be taken by the Company,
and any Outside Investor Member, Other Investor Member or Affiliate thereof
(other than Zoullas) shall have the right to take for such Person's own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment opportunity, provided that this Section 4.7(b) shall not
apply to Subject Members or any other Members who are employees of the Company
or any of its Subsidiaries.
Section 4.8 Additional Members.
(a) Admission. Upon the approval of the Board, the Company may admit
one or more additional Members (each an "Additional Member"), including
additional Management Members to the Company, to be treated as a "Member" or one
of the "Members" for all purposes hereunder. Each Person shall be admitted as an
Additional Member at the time such Person
19
(i) executes a joinder agreement to this Agreement substantially in the
form of Exhibit A hereto (subject, in the case of the admission of any
Additional Member who is a Management Member, to the following sentence), (ii)
complies with the applicable Board resolution, if any, with respect to such
admission and (iii) is named as a Member in Schedule A and Schedule B (as
described in Section 8.1) and Schedule E hereto, as applicable. Any Management
Member admitted as an Additional Member after the date hereof who is unable to
make the representation contained in Section 6.1(e) may execute a joinder
agreement which exclude such representation; provided such Additional Member
also concurrently delivers to the Company a certificate, accompanied by an
opinion of counsel, to the effect that the issuance of Units or Points to such
Member shall be exempt from the registration requirements under the Securities
Act. Xxxxx is authorized to amend Schedule A, Schedule B and Schedule E, as
applicable, to reflect any such admission and any actions pursuant to Section
4.8(b) below.
(b) Rights of Additional Members. Upon, and as a condition precedent to,
the admission of an Additional Member:
(i) the Board shall determine the Initial Capital Commitment and any
additional capital commitment (if any) of such Additional Member;
(ii) the Board shall determine the rights (if any) of such Additional
Members to appoint Directors to the Board;
(iii) the Board shall assign Units (if any) to such Additional Member;
(iv) such Additional Member shall make Capital Contributions and/or advance
Special Membership Interest Funds to the Company in an amount to be
determined by the Board;
(v) if such Additional Member is an employee of the Company or any of its
Subsidiaries, such employee will be a "Management Member" and one of
the "Management Members" for all purposes hereunder, and, subject to
the prior consultation with the Chief Executive Officer of Eagle
Shipping and further subject to the terms of any employment or services
agreement between the Company or any Subsidiary of the Company, and any
Management Member, the Board will have the right to grant such employee
Points pursuant to Article VIII and amend Schedule B accordingly;
(vi) if such Additional Member will not be a Management Member hereunder
then the Board may either designate such Member as a "Xxxxx Member," as
an "Outside Investor Member" or as an "Other Investor Member" or as a
member of such other class or designation as may be designated by the
Board, having such rights and obligations as the Board may specify; and
(vii) the Board will amend Schedule A and Schedule E, as applicable, to
reflect the actions taken pursuant to this Section 4.8.
20
ARTICLE V
MANAGEMENT
Section 5.1 Board.
(a) Generally. The business and affairs of the Company shall be managed
by or under the direction of a committee of the Company (the "Board") consisting
of up to seven (7) natural Persons (each a "Director"), which Persons shall be
elected annually by the holders of Units unless otherwise appointed pursuant to
Section 5.1(b)(ii). The initial Directors of the Company shall be as designated
pursuant to Section 5.1(b)(i). Subject to the rights granted pursuant to Section
5.1(b)(ii), the Board, in its sole discretion, may increase the authorized
number of Directors at any time with the vote of a majority of the Directors
then in office. Directors need not be Members. Subject to the consultation
rights of Zoullas set forth in his employment agreement with the Company or any
Subsidiary of the Company and except as otherwise set forth in this Agreement,
the Board shall have full, exclusive and complete discretion to manage and
control the business and affairs of the Company, to make all decisions affecting
the business and affairs of the Company and to take all such actions as it deems
necessary or appropriate to accomplish the purposes of the Company as set forth
herein, including, without limitation, to exercise all of the powers of the
Company set forth in Section 3.2.
(b) Election of Directors.
(i) Initial Directors; Term. The initial Board shall consist of
four (4) Directors. The initial Directors of the Company will be those
individuals set forth on Schedule C. Each Director shall hold office
until a successor is elected or appointed by a Majority in Interest
(unless otherwise appointed in accordance with Section 5.1(b)(ii)) or
until such Director's earlier death, resignation or removal in
accordance with the provisions hereof in which event, a successor will
be appointed in accordance with Section 5.1(b)(ii). Each Person named
as a Director herein or subsequently appointed as a Director (including
any Management Member named or appointed as such) is hereby designated
as a "manager" (within the meaning of the Xxxxxxxx Islands Act) of the
Company. Except as otherwise provided herein, no single Director may
bind the Company, and the Board shall have the power to act only
collectively in the manner specified herein.
(ii) Composition. For so long as the Board consists of four (4)
Directors, Xxxxx shall have the right to appoint, in its sole
discretion, three (3) Directors. In the event that the Board determines
to expand the size of the Board following the date hereof in accordance
with Section 5.1(a), Xxxxx shall have the right to appoint in its sole
discretion such number of additional Directors that are necessary for
Xxxxx to retain the right to appoint a majority of the Directors on the
Board (as so expanded). For so long as Zoullas is a Member of the
Company, Zoullas shall have the right to appoint one (1)
21
Director (which may be himself). For so long as Zoullas is the Chief
Executive Officer of Eagle Shipping (and a Member of the Company),
Zoullas shall have the right to appoint, in his sole discretion, a
number of additional Directors that, when taken together with the
Directors referred to in the immediately preceding sentence,
constitutes one less than a majority of the Board.
Section 5.2 Meetings of the Board. The Board shall meet from time to
time to discuss the business of the Company. Meetings of the Board may be held
without notice at such time and at such place as shall from time to time be
determined by the Board. The Chairman of the Board or Zoullas so long as he is
Chief Executive Officer of Eagle Shipping and a Member of the Company or a
majority of the Board may call a meeting of the Board on three business days'
notice to each Director, either personally, by telephone, by facsimile or by any
other similarly timely means of communication. Any Director may waive the notice
requirement described in this Section 5.2 as it relates to such Director.
Section 5.3 Quorum and Acts of the Board. At all meetings of the Board,
four Directors shall constitute a quorum for the transaction of business unless
the number of Directors is increased pursuant to Section 5.1(a), in which case
the presence of a majority of the then authorized number of Directors shall
constitute a quorum. Except as otherwise provided in this Agreement, the act of
a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. Any action required or permitted to be taken at any meeting of
the Board or of any committee thereof may be taken without a meeting, if a
majority of the members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee; each Director not executing such a
written consent shall be given prompt notice after any such action is taken by
the other Directors.
Section 5.4 Electronic Communications. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
Section 5.5 Committees of Directors. The Board (a) shall designate (i)
a compensation committee (the "Compensation Committee") and (ii) an Executive
Committee and (b) may, by resolution passed by unanimous consent of the
Directors, designate one or more additional committees. Such resolution shall
specify the duties and quorum requirements of such additional committees. Each
committee of the Board shall be comprised of at least three (3) Directors, two
(2) of whom shall be Directors designated by Xxxxx and the other Director shall
be the Chief Executive Officer of Eagle Shipping. The Board may designate one or
more Directors as alternate members of any committee, who may replace any absent
22
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
members constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Company. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board. Each committee shall keep regular minutes of
its meetings and report the same to the Board when required.
Section 5.6 Compensation of Directors. The Board shall have the
authority to fix the compensation (if any) of Directors. The Directors may be
paid their expenses (if any) of attendance at such meetings of the Board and may
be paid a fixed sum for attendance at each meeting of the Board or a stated
salary as a Director. No such payment shall preclude any Director from serving
the Company in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 5.7 Resignation. Any Director may resign at any time by giving
written notice to the Company. The resignation of any Director shall take effect
upon receipt of such notice or at such later time as shall be specified in the
notice; and, unless otherwise specified in the notice, the acceptance of the
resignation by the Company, the Members or the remaining Directors shall not be
necessary to make it effective. Upon the effectiveness of any such resignation,
such Director shall cease to be a "manager" (within the meaning of the Xxxxxxxx
Islands Act).
Section 5.8 Removal of Directors. The Members holding a Majority in
Interest shall have the right to remove any Director at any time with or without
cause. In addition, a majority of the Directors then in office shall have the
right to remove a Director for cause. Upon the taking of such action, the
Director shall cease to be a "manager" (within the meaning of the Xxxxxxxx
Islands Act). Notwithstanding anything in this Section 5.8 to the contrary, (i)
the removal from the Board or a Subsidiary Board (with or without cause) of any
Director designated hereunder by Xxxxx shall be only at the written request of
Xxxxx, and under no other circumstances, and (ii) the removal from the Board or
a Subsidiary Board (without cause) of any Director designated hereunder by
Zoullas shall be only at the written request of Zoullas. Upon receipt of any
such written removal request, the Board will promptly take all such actions as
shall be necessary or desirable to cause the removal of such Director. Any
vacancy caused by any such removal shall be filled in accordance with Section
5.9.
Section 5.9 Vacancies. If any vacancies shall occur in the Board, by
reason of death, resignation, removal or otherwise, the Directors then in office
shall continue to act, and actions that would otherwise be taken by a majority
of the Directors may be taken by a majority of the Directors then in office,
even if less than a quorum. Any vacancy shall be filled at any time in
23
accordance with Section 5.1(b)(ii). A Director elected to fill a vacancy in the
Board shall hold office until his or her successor has been elected and
qualified or until his or her earlier death, resignation or removal.
Section 5.10 Directors as Agents. The Directors, to the extent of their
powers set forth in this Agreement, are agents of the Company for the purpose of
the Company's business, and the actions of the Directors taken in accordance
with such powers shall bind the Company. Except as otherwise provided in this
Agreement, no single Director shall have the power to bind the Company and the
Board shall have the power to act only collectively in the manner specified
herein.
Section 5.11 Subsidiaries.
(a) Subsidiary Boards. The composition of the board of directors of
each of the Company's Subsidiaries (a "Subsidiary Board") shall be determined by
a majority of the Directors; provided, that, the rights of Xxxxx and Zoullas to
appoint directors thereof shall be similar to their respective rights to appoint
Directors to the Board described in Section 5.1(b)(ii).
(b) Structure; Governance. For so long as Zoullas is the Chief
Executive Officer of Eagle Shipping (and a Member of the Company), the Board
shall consider recommendations of Zoullas before altering the structure or
governance of any Subsidiary of the Company. Any change in the structure or
governance of any Subsidiary of the Company shall not adversely affect any
Member or group of Members disproportionately relative to other Members without
the prior written consent of the affected Member or Members, as applicable.
(c) Protections. All Subsidiaries of the Company shall be governed in a
manner consistent with the applicable provisions of this Agreement (including
with respect to Board composition, quorum and notice requirements). The Company
shall take such actions, including causing its Subsidiaries to take such
actions, to ensure that the provisions of Subsidiaries' organizational documents
applicable to Subsidiary Boards are not inconsistent with the provisions of this
Agreement applicable to the Board or any Subsidiary Board.
ARTICLE VI
INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations, Warranties and Covenants of Members.
(a) Investment Intention and Restrictions on Disposition. Each Member
represents and warrants that such Member is acquiring the Interests and/or
Special Membership Interests, as applicable, solely for such Member's own
account for investment and not with a view to resale in connection with, any
distribution thereof. Each Member agrees that such Member will not,
24
directly or indirectly, Transfer any of the Interests or Special Membership
Interests (or solicit any offers to buy, purchase or otherwise acquire or take a
pledge of any of the Interests) or any interest therein or any rights relating
thereto or offer to Transfer, except in compliance with the Securities Act, all
applicable state securities or "blue sky" laws and this Agreement, as the same
shall be amended from time to time. Any attempt by a Member, directly or
indirectly, to Transfer, or offer to Transfer, any Interests or Special
Membership Interests, as applicable, or any interest therein or any rights
relating thereto without complying with the provisions of this Agreement, shall
be void and of no effect.
(b) Securities Laws Matters. Each Member acknowledges receipt of advice
from the Company that (i) neither the Interests nor the Special Membership
Interests have been registered under the Securities Act or qualified under any
state securities or "blue sky" laws, (ii) it is not anticipated that there will
be any public market for the Interests or the Special Membership Interests,
(iii) the Interests and the Special Membership Interests must be held
indefinitely and such Member must continue to bear the economic risk of the
investment in the Interests and the Special Membership Interests, as applicable,
unless the Interests and/or Special Membership Interests are subsequently
registered under the Securities Act and such state laws or an exemption from
registration is available, (iv) Rule 144 promulgated under the Securities Act
("Rule 144") is not presently available with respect to sales of any securities
of the Company and the Company has made no covenant to make Rule 144 available
and Rule 144 is not anticipated to be available in the foreseeable future, (v)
when and if the Interests and/or Special Membership Interests may be disposed of
without registration in reliance upon Rule 144, such disposition can be made
only in limited amounts and in accordance with the terms and conditions of such
Rule and the provisions of this Agreement, (vi) if the exemption afforded by
Rule 144 is not available, public sale of the Interests or Special Membership
Interests without registration will require the availability of an exemption
under the Securities Act, (vii) restrictive legends shall be placed on any
certificate representing the Interests and/or Special Membership Interests, as
applicable, and (viii) a notation shall be made in the appropriate records of
the Company indicating that the Interests and the Special Membership Interests
are subject to restrictions on transfer and, if the Company should in the future
engage the services of a transfer agent, appropriate stop-transfer instructions
will be issued to such transfer agent with respect to the Interests and the
Special Membership Interests.
(c) Ability to Bear Risk. Each Member represents and warrants that (i)
such Member's financial situation is such that such Member can afford to bear
the economic risk of holding the Interests and/or the Special Membership
Interests, as applicable, for an indefinite period of time and (ii) such Member
can afford to suffer the complete loss of such Member's investment in the
Interests and/or the Special Membership Interests, as applicable.
(d) Access to Information; Sophistication; Lack of Reliance. Each
Member represents and warrants that (i) such Member is familiar with the
business and financial condition, properties, operations and prospects of the
Company and that such Member has been granted the opportunity to ask questions
of, and receive answers from, representatives of the Company
25
concerning the Company and the terms and conditions of the purchase of the
Interests and/or the Special Membership Interests, as applicable, and to obtain
any additional information that such Member deems necessary, (ii) such Member's
knowledge and experience in financial and business matters is such that such
Member is capable of evaluating the merits and risk of the investment in the
Interests and/or the Special Membership Interests, as applicable, and (iii) such
Member has carefully reviewed the terms and provisions of this Agreement and has
evaluated the restrictions and obligations contained therein. In furtherance of
the foregoing, each Member represents and warrants that (x) no representation or
warranty, express or implied, whether written or oral, as to the financial
condition, results of operations, prospects, properties or business of the
Company or as to the desirability or value of an investment in the Company has
been made to such Member by or on behalf of the Company, (y) such Member has
relied upon such Member's own independent appraisal and investigation, and the
advice of such Member's own counsel, tax advisors and other advisors, regarding
the risks of an investment in the Company and (z) such Member will continue to
bear sole responsibility for making its own independent evaluation and
monitoring of the risks of its investment in the Company.
(e) Accredited Investor. Each Member represents and warrants that such
Member is an "accredited investor" as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act and, in connection with the
execution of this Agreement, agrees to deliver such certificates to that effect
as the Board may request.
Section 6.2 Additional Representations and Warranties of Management
Members, Outside Investor Members and Other Investor Members. Each Management
Member, Outside Investor Member and Other Investor Member represents and
warrants as to itself that (a) such Management Member, Outside Investor Member
or Other Investor Member has duly executed and delivered this Agreement; (b) all
actions required to be taken by or on behalf of the Management Member, Outside
Investor Member or Other Investor Member to authorize it to execute, deliver and
perform its obligations under this Agreement have been taken and this Agreement
constitutes such Management Member's, Outside Investor Member's or Other
Investor Member's legal, valid and binding obligation, enforceable against such
Management Member, Outside Investor Member or Other Investor Member in
accordance with the terms hereof; (c) the execution and delivery of this
Agreement and the consummation by the Management Member, Outside Investor Member
or Other Investor Member of the transactions contemplated hereby in the manner
contemplated hereby do not and will not conflict with, or result in a breach of
any terms of, or constitute a default under, any agreement or instrument or any
statute, law, rule or regulation, or any judgment, decree, writ, injunction,
order or award of any arbitrator, court or governmental authority which is
applicable to such Management Member, Outside Investor Member or Other Investor
Member or by which such Management Member, Outside Investor Member or Other
Investor Member or any material portion of its properties is bound; (d) no
consent, approval, authorization, order, filing, registration or qualification
of or with any court, governmental authority or third person is required to be
obtained by such Management Member, Outside Investor Member or Other Investor
Member in connection with the execution and delivery of this Agreement or the
performance of such
26
Management Member's, Outside Investor Member's or Other Investor Member's
obligations hereunder; (e) if such Management Member, Outside Investor Member
or Other Investor Member is an individual, such Management Member, Outside
Investor Member or Other Investor Member is a resident of the state set forth
below such Management Member's, Outside Investor Member's or Other Investor
Member's name on the signature page hereof; and (f) if such Management Member,
Outside Investor Member or Other Investor Member is not an individual, such
Management Member's, Outside Investor Member's or Other Investor Member's
principal place of business and mailing address is in the state or foreign
jurisdiction set forth below the Management Member's signature on the
signature page.
Section 6.3 Additional Representations and Warranties of Xxxxx Members.
(a) Due Organization; Power and Authority, etc. KIA VII represents and
warrants that it is a limited partnership duly formed, validly existing and in
good standing under the laws of the State of Delaware. KEP VI represents and
warrants that it is a limited liability company duly formed, validly existing
and in good standing under the laws of the State of Delaware. Each Xxxxx Member
further represents and warrants that it has all necessary power and authority to
enter into this Agreement to carry out the transactions contemplated herein and
therein.
(b) Authorization; Enforceability. Each Xxxxx Member represents and
warrants that such Xxxxx Member has duly executed and delivered this Agreement.
All actions required to be taken by or on behalf of such Xxxxx Member to
authorize it to execute, deliver and perform its obligations under this
Agreement have been taken, and this Agreement constitutes the valid and binding
obligation of such Xxxxx Member, enforceable against such Xxxxx Member in
accordance with its terms, except as the same may be affected by bankruptcy,
insolvency, moratorium or similar laws, or by legal or equitable principles
relating to or limiting the rights of contracting parties generally. No consent,
approval, authorization, order, filing, registration or qualification of or with
any court, governmental authority or third person is required to be obtained by
such Xxxxx Member in connection with the execution and delivery of this
Agreement or the performance of such Xxxxx Member's obligations hereunder
(c) Compliance with Laws and Other Instruments. The execution and
delivery of this Agreement and the consummation by such Xxxxx Member of the
transactions contemplated hereby in the manner contemplated hereby do not and
will not conflict with, or result in a breach of any terms of, or constitute a
default under, any agreement or instrument or any statute, law, rule or
regulation, or any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority which is applicable to such Xxxxx
Member or by which such Xxxxx Member or any material portion of its properties
is bound, except for conflicts, breaches and defaults that, individually or in
the aggregate, will not have a material adverse effect upon the financial
condition, business or operations of such Xxxxx Member or upon such Xxxxx
Member's ability to enter into and carry out its obligations under this
Agreement.
27
(d) Executing Parties. The person executing this Agreement on behalf of
each Kelso Member has full power and authority to bind such Xxxxx Member to the
terms hereof and thereof.
Section 6.4 Additional Representations and Warranties of Zoullas, the
Management Members and the Outside Investor Members. Zoullas, each Management
Member and each Outside Investor Member represents and warrants that such Member
does not, directly or indirectly (i) own any equity or other interest in Norland
Shipping & Trading Company ("Norland") or (ii) have any ownership or other
interest in any of the vessels for which Norland currently acts, or at any time
in the past has acted, as agent.
Section 6.5 Certain Members. Notwithstanding anything to the contrary
contained herein, the representations and warranties under this Article VI shall
be deemed not to be made to Members not executing this Agreement or a joinder
agreement substantially in the form of Exhibit A hereto.
ARTICLE VII
CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS
Section 7.1 Capital Accounts. A separate capital account (a "Capital
Account") shall be established and maintained for each Member. The initial
balance in each Member's Capital Account shall be zero.
Section 7.2 Adjustments.
(a) Each Member's Capital Accounts shall be credited with (i) the
amount of Capital Contributions by such Member on the Initial Capital
Contribution Date and (ii) the amount of funds advanced as Special Membership
Interest Funds, on the Initial Capital Contribution Date, as set forth on
Schedule A.
(b) As of the end of each Accounting Period, the balance in each
Member's Capital Account shall be adjusted by (i) increasing such balance by
such Member's (A) allocable share of Net Profit (allocated in accordance with
Section 9.1) and (B) the amount of cash and the Fair Market Value of any
property (as of the date of the contribution thereof and net of any liabilities
encumbering such property) contributed (or advanced as Special Membership Funds)
by such Member to the Company during such Accounting Period, if any, and (ii)
decreasing such balance by (A) the amount of cash and the Fair Market Value of
any property (as of the date of the distribution thereof and net of any
liabilities encumbering such property) distributed to such Member during such
Accounting Period (including payments in respect of Special Membership Interests
held pursuant to Section 10.8) and (B) such Member's allocable share of Net Loss
(allocated in accordance with Section 9.1). Each Member's Capital Account shall
be further adjusted with respect to any special allocations pursuant to Section
9.2. The provisions of this
28
Agreement relating to the maintenance of Capital Accounts are intended to
comply with Treasury Regulations section 1.704-1(b) and section 1.704-2 and
shall be interpreted and applied in a manner consistent with such Treasury
Regulations.
Section 7.3 Initial Capital Contributions; Initial SMI Funds Advance.
Each of the Members has made or is concurrently making (i) an initial cash
contribution to the capital of the Company and/or (ii) an initial advance of
cash funds constituting Special Membership Interest Funds, in an aggregate
amount equal to its Initial Capital Commitment on or before the Initial
Capital Contribution Date. Any contributions of property on or after the
Initial Capital Contribution Date shall be valued at their Fair Market Value.
Section 7.4 Additional Capital Contributions by Xxxxx.
(a) In addition to its Initial Capital Contribution and its Initial SMI
Funds Advance, Xxxxx, subject to receipt of its investment committee approval
and satisfaction of such other customary closing conditions for such
additional investment, may make additional Capital Contributions and/or
advance Special Membership Interest Funds to the Company at such times, if
any, as the Board shall determine such additional Capital Contributions or
advances of Special Membership Interest Funds are advisable (x) to make
acquisitions of assets, businesses or other entities which the Board
determines are desirable for the business of the Company and its Subsidiaries
and (y) for other bona fide corporate or organizational purposes (each time a
Capital Contribution is made or Special Membership Interest Funds are advanced
by Xxxxx, in either case following the date hereof, an "Additional Capital
Contribution Event").
(b) [intentionally omitted]
Section 7.5 Additional Capital Contributions. Except as required by
Section 7.4(a), no Member shall be required or permitted to make any
additional Capital Contribution or advance Special Membership Interests Funds
to the Company in respect of the Interests or Special Membership Interests, as
applicable, then owned by such Member. However, from and after the Xxxxx
Threshold Date, the Initial Members (including Zoullas and the Outside
Investor Members) shall have the right (but not the obligation) to make
additional Capital Contributions or advances of Special Membership Interest
Funds, as applicable, to the Company in the following circumstances:
(a) at the time of any Additional Capital Contribution Event from and
after the Xxxxx Threshold Date, in amounts up to such amounts as are necessary
to maintain its relative ownership interest (in respect of each of Interests
and Special Membership Interests, as applicable) in the Company; provided,
that the rights of the Initial Members (including Zoullas and the Outside
Investor Members) to make additional Capital Contributions or advances of
Special Membership Interest Funds pursuant to this Section 7.5 shall not apply
(i) at any time prior to the Xxxxx Threshold Date and (ii) in connection with
an Additional Capital Contribution Event from and after the Xxxxx Threshold
Date involving a Capital Contribution or advance of
29
Special Membership Interest Funds by Xxxxx of less than $1.0 million;
provided, that if, at any time following the Xxxxx Threshold Date, Xxxxx makes
a particular Capital Contribution or advance of Special Membership Interest
Funds of less than $1.0 million (the "Threshold Contribution") which together
with Capital Contributions or advances of Special Membership Interest Funds
made by Xxxxx over the prior 12-month period aggregates to an amount greater
than $1 million, then such Threshold Contribution shall be deemed to be not
less than $1 million; provided, that the calculation of aggregate
contributions or advances over the prior 12-month period pursuant to the
previous proviso shall exclude any contributions or advances made prior to the
Xxxxx Threshold Date; and
(b) upon the written consent of the Board acting by majority vote.
For the avoidance of doubt, except upon the written consent of the Board, no
Member shall have the right to make additional Capital Contributions or
advance Special Membership Interest Funds to the Company in connection with
(i) issuances of Points (as defined in Section 8.1) made to executives for
compensatory or incentive purposes, and (ii) issuances made as additional
yield or consideration in connection with the incurrence of indebtedness by
the Company. The provisions of this Section 7.5 are intended solely to benefit
the Members and, to the fullest extent permitted by applicable law, shall not
be construed as conferring any benefit upon any creditor of the Company (and
no such creditor shall be a third party beneficiary of this Agreement), and no
Member shall have any duty or obligation to any creditor of the Company to
make any additional Capital Contributions or advances of Special Membership
Interest Funds or to cause the Board to consent to the making of additional
Capital Contributions or advances of Special Membership Interest Funds.
Members shall be deemed to have contributed or advanced, as applicable, such
additional capital upon issuance of additional Interests or Special Membership
Interests, as applicable, equal to the cash purchase price for such Interests
or Special Membership Interests, as applicable, or, if no cash is paid or
there is non-cash consideration, in the amount of the Fair Market Value of
such non-cash consideration as determined by the Board in good faith at or
prior to issuance of such Interests or Special Membership Interests, as
applicable. No Member shall be permitted to finance its additional Capital
Contributions or advances of Special Membership Interest Funds pursuant to
this Section 7.5 by or through third party financing or any relationship or
arrangement with third parties (other than third party debt financing not
secured by Interests or Special Membership Interests (or otherwise by Units or
Economic Interests in the Company)). In connection with any additional Capital
Contributions to be made following the IPO of Eagle Bulk Shipping Inc.
(including any Capital Contributions made by third parties), the Board may in
its discretion make appropriate adjustments to Section 10.2(c) of this
Agreement (including to provide that distributions are made for purposes of
Section 10.2(c) on the basis of Units held) to account for any such Capital
Contributions made at a higher valuation than earlier Capital Contributions;
provided that any such adjustments affect all then current Members holding
Units in the same manner.
Section 7.6 Negative Capital Accounts. Except as required by law, no
Member shall be required to make up a negative balance in its Capital Account.
30
ARTICLE VIII
POINTS
Section 8.1 Points.
(a) General. There shall be established two pools of points. One pool
shall consist of points called "Service Points;" and one pool shall consist of
points called "Performance Points." There shall be 1000 Service Points and
1000 Performance Points. Service Points and Performance Points shall be
referred to collectively as "Points." The Compensation Committee shall have
the discretionary authority to allocate Points from time to time to any
Management Member subject to the terms of any employment or services agreement
between the Company or any Subsidiary of the Company and any Management
Member; provided, that (i) the Compensation Committee shall take into
consideration the recommendation of Zoullas (for so long as Zoullas is a
Member and the Chief Executive Officer of Eagle Shipping) in making its
allocation and (ii) the Compensation Committee may, pursuant to an employment
or services agreement between the Company or any Subsidiary of the Company and
a Management Member, delegate authority to award or allocate Points to the
Chief Executive Officer of Eagle Shipping. On the Initial Capital Contribution
Date, Zoullas and the other Management Members listed on Schedule B hereto
shall be allocated the number and type of Points set forth opposite their
respective names. Schedule B will be maintained confidentially and accurately
in the books and records of the Company by the chairman of the Compensation
Committee and each Management Member will receive a copy of Schedule B
reflecting only his or her own Point allocation. The Compensation Committee
shall have the discretion to allocate, after taking into consideration the
recommendation of Zoullas (for so long as Zoullas is a Member and the Chief
Executive Officer of Eagle Shipping) any or all of the remaining Points (the
"Unallocated Points"), to any Management Member (as determined at the time of
such allocation). Unless otherwise determined by the Board, or as otherwise
provided in an employment or services agreement between the Company or any
Subsidiary of the Company and such Management Member, all Service Points,
whether allocated or unallocated, shall expire on the tenth anniversary of the
initial date of issuance of Points hereunder and, upon such expiration, the
provisions of this Article VIII shall be of no further force and effect.
(b) Additional Management Members. The Compensation Committee may decide
at any time to award Points to an employee of the Company who is not yet a
party to this Agreement by admitting such employee as a Management Member
hereunder pursuant to Section 4.8.
(c) Economics. The economic rights of Points are set forth in Article X.
Section 8.2 Ex-Management Members. In the event that the employment with
the Company (or any Subsidiary of the Company that employs such individual) of
any Management Member terminates for any reason, such Management Member shall,
as of the earlier of the date of such termination or the repurchase by the
Company of such Management Members' Interests
31
or Special Membership Interests pursuant to Section 13.5, cease to be a Member
of the Company for all purposes and shall be thereafter referred to herein as
a "Ex-Management Member" with only the rights of a Ex-Management Member
specified herein unless such Ex-Management Member continues to own Units in
the Company by virtue of such Ex-Management Member having made a Capital
Contribution to the Company. Notwithstanding the foregoing, such Ex-Management
Member shall continue to be treated, for U.S. federal, state and local income
tax purposes, as a Member to the extent such Ex-Management Member retains any
Points following such termination, and any allocations or distributions made
to such Ex-Management Member shall be deemed for tax purposes to be made to
such Ex-Management Member in its capacity as a Member.
Section 8.3 Allocation of Points to Management Members upon Termination
of Employment.
(a) Termination for Cause. Unless otherwise determined by the
Compensation Committee in a manner more favorable to such Management Member or
Ex-Management Member, or as otherwise provided in an employment or services
agreement between the Company or any Subsidiary of the Company and such
Management Member, if a Management Member's employment with the Company or any
Subsidiary of the Company that employs such individual is terminated for
Cause, the number of Service Points and Performance Points allocated to such
Ex-Management Member shall be reduced to zero.
(b) Other Termination of Employment. Unless otherwise determined by the
Compensation Committee in a manner more favorable to such Ex-Management
Member, or as otherwise provided in an employment or services agreement
between the Company or any Subsidiary of the Company and such Management
Member, if the Management Member's employment with the Company or any
Subsidiary of the Company that employs such individual terminates for any
reason other than for Cause, then the number of Performance Points allocated
to such Ex-Management Member shall be reduced to zero (unless at the time such
Ex-Management Member's employment is terminated the Xxxxx Investment Multiple
is at least four (4) and the Xxxxx IRR is at least ten percent (10%), in which
case all of the Performance Points allocated to such Ex-Management Member
shall be retained and not forfeited) and the number of Service Points
allocated to such Ex-Management Member shall be adjusted according to the
following schedule (provided, however, that with respect to the Benchmarked
Service Points held by the individuals listed on Schedule 10.9 hereof, the
number of Benchmarked Service Points allocated to such individuals shall be
adjusted according to the schedule set forth on Schedule 10.9 hereof and shall
not be subject to the following schedule):
32
The Ex-Management
Member's Service Points shall be
If the termination occurs reduced by
Before the first quarterly anniversary of the grant of such 93.75%
Ex-Management Member's Service Points
On or after the first quarterly anniversary, but before the second 87.5%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the second quarterly anniversary, but before the third 81.25%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the third quarterly anniversary, but before the fourth 75.00%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the fourth quarterly anniversary, but before the fifth 68.75%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the fifth quarterly anniversary, but before the sixth 62.50%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the sixth quarterly anniversary, but before the seventh 56.25%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the seventh quarterly anniversary, but before the eighth 50.00%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the eighth quarterly anniversary, but before the ninth 43.75%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the ninth quarterly anniversary, but before the tenth 37.50%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
33
On or after the tenth quarterly anniversary, but before the eleventh 31.25%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the eleventh quarterly anniversary, but before the twelfth 25.00%
quarterly anniversary, of the grant of such Ex-Management Member's
Service Points
On or after the twelfth quarterly anniversary, but before the 18.75%
thirteenth quarterly anniversary, of the grant of such Ex-Management
Member's Service Points
On or after the thirteenth quarterly anniversary, but before the 12.50%
fourteenth quarterly anniversary, of the grant of such Ex-Management
Member's Service Points
On or after the fourteenth quarterly anniversary, but before the 6.25%
fifteenth quarterly anniversary, of the grant of such Ex-Management
Member's Service Points
On or after the fifteenth quarterly anniversary of the grant of such 0.0%
Ex-Management Member's Service Points
(c) Forfeiture of Points. Any Points forfeited by such Member pursuant to
this Section 8.3 shall, following such forfeiture, be considered Unallocated
Points for purposes of Section 8.1 hereof, except as otherwise provided
therein.
(d) Service Points Vesting. For purposes of this Agreement, (A)
"Retainable Service Points," with respect to any Management Member at any
particular date of determination, shall mean all of the Service Points held by
such Management Member on such date of determination if such Management Member
is employed by the Company or any Subsidiary of the Company on the date of
such determination, (B) "Ex-Management Retained Services Points," with respect
to any Ex-Management Member at any particular date of determination, shall
mean such number of Service Points that were retained and not forfeited by
such Ex-Management Member at the time such Ex-Management Member's employment
with the Company or the Subsidiary of the Company that employed such
Ex-Management Member as was determined in accordance with (x) in the case of
all Service Points (other than Benchmarked Service Points), the schedule set
forth in Section 8.3(b) hereof or (y) in the case of Benchmarked Service
Points, the schedule set forth on Schedule 10.9 hereof and (C) "Aggregate
Retainable Service Points" shall mean the sum of (a) the aggregate Retainable
Service Points of all Management Members and (b) the aggregate Ex-Management
Retained Service Points. Notwithstanding the provisions of Section 8.3(b), in
the event that any Person other than Xxxxx or Affiliates thereof shall acquire
a Majority
34
in Interests of the Company or the right to appoint a majority of the
Directors on the Board, all Service Points then allocated to any Member shall
no longer be subject to forfeiture or adjustment, other than as provided in
Section 8.3(a).
Section 8.4 Nontransferability of Awards. No Points (or Economic
Interests by virtue of such Management Member's or Ex-Management Member's, as
applicable, Vested IPO Percentages) allocated hereby may be Transferred, other
than by will or by the laws of descent and distribution or, on such terms and
conditions as the Compensation Committee shall establish, to a transferee
permitted under Section 13.2. All rights with respect to Points (or Economic
Interests by virtue of such Management Member's or Ex-Management Member's, as
applicable, Vested IPO Percentages) allocated to a Management Member or
Ex-Management Member hereunder shall be distributed during his or her lifetime
only to such Management Member or Ex-Management Member or, if applicable, a
transferee permitted under Section 13.2.
Section 8.5 Amendment to the Points Plan. The Compensation Committee will
administer the allocation of Points and will have the authority to amend the
terms of the Points at any time, however, no amendment shall adversely affect
in a material way any of the rights of a Management Member without such
Member's consent with respect to awards of Points previously granted. For so
long as Zoullas remains Chief Executive Officer of Eagle Shipping and a
Member, any such amendment shall be subject to the consent of Zoullas, which
such consent shall not be unreasonably withheld. Notwithstanding anything in
this Article VIII to the contrary, until such time as the Company shall have
received Capital Contributions and Special Membership Interest Aggregate Funds
of at least $125 million in the aggregate, the Compensation Committee and the
Board shall not be permitted to increase the number of Performance Points
(above 1000) available for allocation hereunder. Notwithstanding the
foregoing, the Compensation Committee shall have the right to make the
adjustments contemplated by the last paragraph of Schedule D attached hereto.
ARTICLE IX
ALLOCATIONS
Section 9.1 Book Allocations of Net Profit and Net Loss. Except as
provided in Section 9.2, Net Profit or Net Loss, as the case may be, with
respect to any Accounting Period, including each item of income, gain, loss
and deduction of the Company, shall be allocated among the Capital Accounts as
of the end of such Accounting Period in a manner that as closely as possible
gives effect to the provisions of Article X and the other relevant provisions
of this Agreement.
Section 9.2 Special Book Allocations.
(a) Qualified Income Offset. If any Member unexpectedly receives any
adjustment, allocation or distribution described in Treasury Regulations
section 1.704-1(b)(2)(ii)(d)(4), (5) or
35
(6) and such adjustment, allocation or distribution causes or increases a
deficit in such Member's Capital Account in excess of its obligation to make
additional Capital Contributions (a "Deficit"), items of gross income and gain
for such Accounting Period and each subsequent Accounting Period shall be
specially allocated to such Member in an amount and manner sufficient to
eliminate, to the extent required by the Treasury Regulations, the Deficit of
such Member as quickly as possible; provided that an allocation pursuant to
this Section 9.2(a) shall be made only if and to the extent that such Member
would have a Deficit after all other allocations provided for in this Article
IX have been tentatively made as if this Section 9.2(a) were not in this
Agreement. This Section 9.2(a) is intended to comply with the qualified income
offset provision of Treasury Regulations section 1.704-1(b)(2)(ii)(d) and
shall be interpreted in a manner consistent therewith.
(b) Partnership Minimum Gain. Except as otherwise provided in Treasury
Regulations section 1.704-2(f), if there is a net decrease in Partnership
Minimum Gain during any Accounting Period, each Member shall be specially
allocated items of Company income and gain for such Accounting Period in
proportion to, and to the extent of, an amount equal to the portion of such
Member's share of the net decrease in Partnership Minimum Gain, determined in
accordance with Treasury Regulations section 1.704-2(g). This Section 9.2(b)
is intended to comply with the chargeback of items of income and gain
requirement in Treasury Regulations section 1.704-2(f) and shall be
interpreted consistently therewith.
(c) Restorative Allocations. Any special allocations of items of income
or gain pursuant to this Section 9.2 shall be taken into account in computing
subsequent allocations pursuant to this Agreement, so that the net amount for
any item so allocated and all other items allocated to each Member pursuant to
this Agreement shall be equal, to the extent possible, to the net amount that
would have been allocated to each Member pursuant to the provisions of this
Agreement if such special allocations had not occurred.
(d) Bulk Advances. Notwithstanding anything to the contrary, interest
income derived from Bulk Advances shall be allocated only to the Capital
Accounts of Members holding Special Membership Interests (on a basis pro rata
for Special Membership Interests held).
Section 9.3 Tax Allocations. The income, gains, losses, credits and
deductions recognized by the Company shall be allocated among the Members, for
U.S. federal, state and local income tax purposes, to the extent permitted
under the Code and the Treasury Regulations, in the same manner that each such
item is allocated to the Members' Capital Accounts. Notwithstanding the
foregoing, the Board shall have the power to make such allocations for U.S.
federal, state and local income tax purposes as may be necessary to maintain
substantial economic effect, or to ensure that such allocations are in
accordance with the Members' interests in the Company, in each case within the
meaning of the Code and the Treasury Regulations, it being anticipated that no
Management Member or Additional Management Member shall be allocated taxable
income in excess of the amount of cash to be received by such Member or
Additional Member. In accordance with section 704(c) of the Code and the
Treasury
36
Regulations thereunder, income, gain, loss and deduction with respect to any
property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take account of any
variation between the adjusted basis of such property to the Company for U.S.
federal income tax purposes and its fair market value at the time of
contribution.
ARTICLE X
DISTRIBUTIONS
Section 10.1 Explanation of Terms.
(a) Carry Percentage. For purposes of computing the amount to be
distributed to each Member, certain Members will have a "Carry Percentage,"
which shall be based upon the following two elements: a Service Percentage and
a Performance Percentage. The Carry Percentage shall be, for each Management
Member, the quotient obtained by dividing (i) the sum of such Member's Service
Percentage and such Member's Performance Percentage by (ii) the sum of (w)
100% plus (x) the Adjusted Total Vested Service Percentage plus (y) the
Adjusted Aggregate Post IPO Performance Percentage plus (z) the Adjusted Total
Vested IPO Percentage.
(i) Service Percentage. The "Service Percentage" for each Management
Member (or Ex-Management Member, as applicable) shall be the Total
Service Percentage multiplied by the quotient obtained by dividing (x)
the number of Retainable Service Points allocated to such Management
Member (or, in the case of any Ex-Management Member, the number of
Ex-Management Retained Service Points held by such Ex-Management Member)
by (y) 1000 (or, if the pool of allocated Service Points has been
increased above 1000 (such increased number, the "Total Service Pool
Points"), the Total Service Pool Points). For purposes of this Agreement,
(A) the "Total Service Percentage" means five percent (5%), (B) the
"Adjusted Total Vested Service Percentage" means the product of (x) the
Total Service Percentage and (y) the Carry Adjustment Factor.
(ii) Performance Percentage. The "Performance Percentage" for each
Management Member (or Ex-Management Member, if applicable) on any date of
determination shall be the sum of (a) such Management Member's (or
Ex-Management Member's) Vested IPO Percentage (as defined in Section
10.1(a)(iii)), if any, and (b) such Management Member's (or Ex-Management
Member's, if applicable) Post IPO Performance Percentage (as defined
below).
1. A Management Member's (or Ex-Management Member's, if
applicable) "Post IPO Performance Percentage" shall be the sum of
(a) such Management Member's (or Ex-Management Member's, if
applicable) Post IPO Remaining Percentage (as defined below) and (b)
such Management Member's
37
(or Ex-Management Member's, if applicable) Stub Performance
Percentage Allocation (as defined below), if any.
2. A Management Member's (or Ex-Management Member's, if
applicable) "Post IPO Remaining Percentage" shall be calculated by
dividing (x) the number of Performance Points allocated to such
Management Member (or, in the case of any Ex-Management Member, the
allocated and retained Performance Points of such Ex-Management
Member, if any) by (y) 1000 (or, if the pool of allocated
Performance Points has been increased above 1000 (such increased
number, the "Total Performance Pool Points"), the Total Performance
Pool Points); and then multiplying the resulting quotient by the
Total Available Post IPO Remaining Performance Percentage for such
date of determination.
3. A Management Member's (or Ex-Management Member's, if
applicable) "Stub Performance Percentage Allocation" shall be
calculated by dividing (x) the number of Post IPO Awarded
Performance Points, if any, allocated to such Management Member (or,
in the case of any Ex-Management Member, the allocated and retained
Post IPO Awarded Performance Points of such Ex-Management Member, if
any) by (y) 120 (or, if the total Post IPO Awarded Performance
Points are greater than 120, then such greater number of total Post
IPO Awarded Performance Points); and then multiplying the resulting
quotient by the Total Stub Performance Percentage for such date of
determination.
4. For purposes of this Agreement, (A) the "Total Available
Post IPO Remaining Performance Percentage" means, on any date of
determination, the percentage determined by reference to Schedule D
of this Agreement, (B) the "Total Stub Performance Percentage"
means, on any date of determination, the percentage determined by
reference to Schedule D of this Agreement, (C) the "Aggregate Post
IPO Performance Percentage" means the sum of (i) Total Available
Post IPO Remaining Performance Percentage plus (ii) Total Stub
Performance Percentage, (D) the "Adjusted Aggregate Post IPO
Performance Percentage" means the product of (x) the Carry
Adjustment Factor and (y) the Aggregate Post IPO Performance
Percentage and (E) "Post IPO Awarded Performance Points" mean
Performance Points (including any previously forfeited Performance
Points) that are newly awarded after the IPO of Eagle Bulk Shipping
Inc. to Management Members (it being understood that the 880
Performance Points set forth on Schedule B as of the date hereof
shall be excluded unless, and to the extent that, any of such
Performance Points are forfeited and reallocated to Management
Members after the IPO of Eagle Bulk Shipping Inc.).
(iii) Vested IPO Percentage. The "Vested IPO Percentage," with
respect to any Management Member or Ex-Management Member, as applicable,
is the percentage
38
(if any) set forth on Schedule F with respect to such Management Member
or Ex-Management Member, as applicable; provided that if the applicable
Ex-Management Member's employment with the Company or the Subsidiary of
the Company that employed such Ex-Management Member was terminated for
Cause, then the "Vested IPO Percentage" of such Ex-Management Member
shall be reduced to zero percent (0%). For purposes of this Agreement,
(A) the "Total Vested IPO Percentage" means the sum of all Vested IPO
Percentages of Management Members and Ex-Management Members set forth on
Schedule F hereof, as indicated opposite "Total Vested IPO Percentage"
thereon (reduced by any forfeited amounts pursuant to the proviso of the
preceding sentence) and (B) the "Adjusted Total Vested IPO Percentage"
means the product of (x) the Carry Adjustment Factor and (y) the Total
Vested IPO Percentage.
(b) Benchmark Amounts.
(i) Management Members who receive Points after the Initial
Contribution Date may be assigned, in respect of any Points allocated to
a Management Member, a "Benchmark Amount," which shall be an amount
determined by the Compensation Committee (or the Board, as applicable) at
the time the Compensation Committee (or the Board, as applicable)
assigned such Points (such Points to which a Benchmark applies, the
"Benchmarked Points"). The Benchmark Amount may be used by the
Compensation Committee to calculate an appropriate adjustment to a
Management Member's Carry Percentage, and/or the manner and timing of
distributions to Management Members, to reflect the increase or decrease
in the value of the Company between the Initial Contribution Date and the
date of such award or as otherwise required by the Compensation Committee
in its discretion. The Benchmark Amounts (if any) for each Management
Member will be reflected on Schedule B.
Section 10.2 Distributions Generally. This section provides for the
distribution of certain amounts ("Distributable Amounts") to the Members. The
term "Distributable Amounts" means (a) upon the occurrence of an Exit Event,
all amounts held by the Company immediately following such Exit Event, reduced
by existing liabilities (including the pro rata payment of all amounts owed in
respect of outstanding Special Membership Interests) and expenses of the
Company and a reasonable reserve for future liabilities and expenses; and (b)
at any other time determined by the Board, any amounts designated by the Board
in its sole discretion (subject to Section 10.8 hereof). Immediately prior to
the making of any distribution, a tentative distribution schedule shall be
made for the purpose of determining each Member's Performance Percentage, if
any. Distributable Amounts shall then be distributed in the following order
and priority:
(a) First, to the Members and Ex-Management Members, an amount equal to
their aggregate Unreturned Capital (in the proportion that each such Member's
or Ex-Management Member's share of Unreturned Capital immediately prior to
such distribution bears to the aggregate Unreturned Capital of all Members and
Ex-Management Members immediately prior
39
to such distribution), until each Member and Ex-Management Member has received
distributions in an amount equal to its Unreturned Capital immediately prior
to such distribution, and no distribution or portion thereof shall be made
under any of Section 10.2(b)-(e) below until the entire amount of the
Unreturned Capital for all Members and Ex-Management Members has been paid in
full;
(b) Second, from and after the Fifth Amended Effective Date, the Interest
Priority Payments (if any) required to be paid to the applicable individuals
pursuant to Section 10.10 shall be paid until the aggregate Interest Priority
Payments required to be paid pursuant thereto have been paid and following
(and only following) the payment of the aggregate Interest Priority Payments,
the Vesting Service Catch Up Payment (if any) required to be paid to the
applicable individuals pursuant to Section 10.10 shall be paid until the
aggregate Vesting Service Catch Up Payments required to be paid pursuant
thereto have been paid;
(c) Third, until such time as Xxxxx achieves the Trigger Multiple,
(i) to each Management Member and Ex-Management Member (other than
the individuals set forth on Schedule 10.9 in respect of any Benchmarked
Points held by such individuals), the product of (A) the amount that is
the lesser of (I) the Trigger Achieving Balance and (II) the remaining
balance to be distributed at such time (after giving effect to Section
10.2(a) above) and (B) each such Management Member's or Ex-Management
Member's Adjusted Carry Percentage (it being understood that (x)
Benchmarked Points of the individuals set forth on Schedule 10.9 shall be
treated as non-Benchmarked Points solely for purposes of calculating
clause (ii) of the definition of "Carry Percentage" in Section 10.1(a)
(and in turn the calculation of Adjusted Carry Percentages of all
Management Members for purposes of this clause (b)(i)) and (y)
Benchmarked Points shall not be included for purposes of calculating
clause (i) of the definition of "Carry Percentage" in Section 10.1(a)
(and in turn the calculation of Adjusted Carry Percentage) for
individuals holding Benchmarked Points but otherwise participating under
this Section 10.2(c)(i) by virtue of non-Benchmarked Points), and
(ii) to the Members (and Ex-Management Members, if applicable) in
proportion to their respective Aggregate Investments (as defined in
Section 10.2(f)), the lesser of (I) the remaining amount of the Trigger
Achieving Balance and (II) the remaining amount of the balance to be
distributed at such time (in each case after giving simultaneous effect
to distributions made under clause (c)(i) above);
For purposes of this Section 10.2(c), the "Trigger Achieving Balance"
means the amount of the distribution in question which, after giving effect to
clause 10.2(c)(ii), results in Xxxxx achieving the Trigger Multiple.
(d) Fourth, following (and only following) achievement by Xxxxx of the
Trigger Multiple, the Catch Up Payments (if any) required to be paid to the
applicable individuals pursuant to
40
Section 10.9 shall be paid until the aggregate Catch Up Payments required to
be paid pursuant thereto have been paid;
(e) Fifth, following (and only following) achievement by Xxxxx of the
Trigger Multiple and the payment of Catch Up Payments pursuant to Section
10.2(d) above, to each Management Member and Ex-Management Member, an amount
equal to the product of (i) the sum of (A) the balance remaining to be
distributed at such time (after giving effect to clauses (a), (b), (c) and (d)
above, in each case to the extent applicable to the distribution in question)
and (B) aggregate Catch Up Payments being paid pursuant to Section 10.2(d)
above (if any), and (ii) the Adjusted Carry Percentage of such Management
Member or Ex-Management Members (it being understood that, if Catch Up
Payments are being paid pursuant to Section 10.2(d) above, the sum of (A) and
(B) in clause (i) hereof is simply a notional amount, but that the product of
(i) and (ii) shall be an actual distribution); and
(f) Sixth, to the Members (and Ex-Management Members, if applicable), the
remaining balance to be distributed (in proportion to their respective
Aggregate Investments). For purposes of this Agreement, the "Aggregate
Investment," with respect to any Member or Ex-Management Member, as
applicable, shall mean the sum of such Member's (or Ex-Management Member's, as
applicable) aggregate Capital Contributions and advances of Special Membership
Interest Aggregate Funds.
Notwithstanding the foregoing, for purposes of Sections 10.2(c) or (e),
as applicable, if any Management Member has Benchmarked Points, then
distributions to such Management Member pursuant to this Section 10.2 in
respect of such Benchmarked Points shall be made as though the aggregate
Unreturned Capital of all Members immediately prior to the time of the
granting of the applicable Benchmarked Points had been equal to such
Management Member's applicable Benchmark Amount (which has the effect of
making less proceeds assumed to be available for distribution pursuant to
Sections 10.2(c) or (e), as applicable, since more amounts are assumed to be
distributed pursuant to Section 10.2(a)); provided that the foregoing shall in
no event apply to the individuals set forth on Schedule 10.9 hereof in respect
of any Benchmarked Points held by such individuals. An amount equal to the
amount of any reduction in distributions to a Management Member resulting from
the application of the foregoing sentence (i.e., the incremental amount that
such Management Member with a Benchmark Amount would have otherwise been
distributed pursuant to any particular distribution but for the application of
the prior sentence) shall be distributed, in accordance with Section 10.2(c)
or (e), as applicable, and Section 10.2(f), to all of the other Members then
entitled to participate in distributions pursuant thereto. For the avoidance
of doubt, with respect to any Management Member holding both (i) Benchmarked
Points and (ii) Points without an assigned Benchmark Amount, such Management
Member's distributions pursuant to Section 10.2(c) or (e), as applicable, will
be reduced, as applicable, solely in respect of the Benchmarked Points.
In the event that an Exit Event is structured as a sale of Interests by
the Members, rather than a distribution of proceeds by the Company, the
purchase agreement governing such Interest
41
sale will have provisions therein which replicate, to the greatest extent
possible, the economic result which would have been attained under this
Article X had the Exit Event been structured as a distribution of proceeds.
Section 10.3 Distributions In Kind. In the event of a distribution of
Company property, such property shall for all purposes of this Agreement be
deemed to have been sold at its Fair Market Value and the proceeds of such
sale shall be deemed to have been distributed to the Members.
Section 10.4 No Withdrawal of Capital. Except as otherwise expressly
provided in Article XIV, no Member shall have the right to withdraw capital
from the Company or to receive any distribution or return of such Member's
Capital Contributions or advance of Special Membership Interest Funds, as
applicable.
Section 10.5 Withholding.
(a) Each Member shall, to the fullest extent permitted by applicable law,
indemnify and hold harmless each Person who is or who is deemed to be the
responsible withholding agent for U.S. federal, state, local or foreign income
tax purposes against all claims, liabilities and expenses of whatever nature
(other than any claims, liabilities and expenses in the nature of penalties
and accrued interest thereon that result from such Person's fraud, willful
misfeasance, bad faith or gross negligence) relating to such Person's
obligation to withhold and to pay over, or otherwise pay, any withholding or
other taxes payable by the Company or as a result of such Member's
participation in the Company, provided that such liability of any Member shall
not exceed the sum of the balance of such Member's Capital Account, after
giving effect to all adjustments hereunder, and the aggregate amount of all
prior distributions made to such Member by the Company.
(b) Notwithstanding any other provision of this Article X, (i) each
Member hereby authorizes the Company to withhold and to pay over, or otherwise
pay, any withholding or other taxes payable by the Company or any of its
Affiliates with respect to such Member or as a result of such Member's
participation in the Company and (ii) if and to the extent that the Company
shall be required to withhold or pay any such taxes (including any amounts
withheld from amounts payable to the Company to the extent attributable, in
the judgment of the Compensation Committee, to the interest of such Member in
the Company), such Member shall be deemed for all purposes of this Agreement
to have received a payment from the Company as of the time such withholding or
tax is required to be paid, which payment shall be deemed to be a distribution
with respect to such Member's interest in the Company to the extent that the
Member (or any successor to such Member's interest in the Company) is then
entitled to receive a distribution. To the extent that the aggregate of such
payments to a Member for any period exceeds the distributions to which such
Member is entitled for such period, such Member shall make a prompt payment to
the Company of such amount.
42
(c) If the Company makes a distribution in kind and such distribution is
subject to withholding or other taxes payable by the Company on behalf of any
Member, such Member shall make a prompt payment to the Company of the amount
of such withholding or other taxes by wire transfer.
Section 10.6 Restricted Distributions. Notwithstanding any provision to
the contrary contained in this Agreement, the Company shall not make a
distribution to any Member on account of its interest in the Company if such
distribution would violate Section 40 of the Xxxxxxxx Islands Act or other
applicable law.
Section 10.7 Tax Distributions. In the event the Company allocates net
taxable income to any of the Company's Members for any accounting period,
then, at the Compensation Committee's discretion (or the Board, if there shall
be no Compensation Committee), the Company will make distributions of cash to
such members prior to any other distributions provided for in Article X in an
amount determined by the Compensation Committee (or the Board, if there shall
be no Compensation Committee) for the purpose of allowing such members to
satisfy their tax liability arising as a result of such allocation. Tax
distributions made pursuant to the foregoing shall be treated as advances
against distributions payable to members pursuant to Section 10.2.
Section 10.8 Eagle Bulk Shipping Advances. Notwithstanding anything to
the contrary, all principal payments paid to the Company in respect of any
Bulk Advances (as defined below), and quarterly (or such other scheduled
payment intervals that is on a basis consistent with the timing of payments in
respect of such Bulk Advances) cash payments at a fixed per annum rate of
seven percent (7.0%) on the amount equal to the daily outstanding principal
amount of any Bulk Advances (the "Special Interest Payment"), shall be paid
pro rata to (and only to) the holders of outstanding Special Membership
Interests, until the Bulk Advances are repaid to the Company in full;
provided, however, that no such payments shall be made if, after giving effect
to such payments, the Company would be insolvent. Any repayment of principal
on the Bulk Advances subsequently paid to any Member pursuant to the foregoing
shall reduce such Member's Special Membership Interest on a dollar for dollar
basis (and, as result, only such reduced amount shall be considered
outstanding as a Special Membership Interest for purposes of this Agreement,
and Schedule E shall be amended accordingly). For purposes of this Agreement,
"Bulk Advances" shall be loans made by the Company to Eagle Bulk Shipping
Inc., a Xxxxxxxx Islands corporation and a Subsidiary of the Company, as
determined to be made by the Board in its discretion, of funds advanced to the
Company as Special Membership Interest Funds.
Section 10.9 Benchmarked Points - Catch Up Payment. Notwithstanding
anything to the contrary, following Xxxxx'x achievement of the Trigger
Multiple, a Catch Up Payment (as defined below) shall be paid to each of the
individuals set forth on Schedule 10.9 as a priority distribution before
payment of any amounts are distributed to the other Members or Management
Members (or Ex-Management Members), as applicable; provided, that, once a
Catch Up
43
Payment is paid in full to an individual set forth on Schedule 10.9 in
accordance with Section 10.2(d) such individual shall no longer have a right
to receive any Catch Up Payment in future distributions under this Agreement.
For purposes of this Section 10.9, (i) a "Catch Up Payment", with respect to
each of the individuals set forth on Schedule 10.9, shall mean a distribution
in an amount equal to the lesser of (A) such individual's pro rata portion
(determined pro rata for relative Unreturned Benchmark Withholdings) of
Distributable Amounts remaining to be distributed (after giving effect to
Section 10.2(c)), and (B) such individual's Unreturned Benchmark Withholdings,
(ii) "Unreturned Benchmark Withholdings", with respect to each of the
individuals set forth on Schedule 10.9, means that portion of such
individual's Aggregate Benchmark Withholding which has not been paid to such
individual pursuant to any priority catch up distribution or otherwise, and
(iii) "Aggregate Benchmark Withholdings", with respect to each of the
individuals set forth on Schedule 10.9, means the aggregate incremental
reduction in such Management Member's distributions pursuant to Section 10.2
resulting from the fact that such individual's Benchmarked Points were
excluded from distributions under Section 10.2(c) (i.e, the aggregate
incremental amount that such Management Member would have otherwise been
distributed under Section 10.2(c) pursuant to any prior distribution or
distributions if all of such Management Member's Points (including Benchmarked
Points) were included for purposes of clause (i) of the definition of Carry
Percentage with respect to such individual). Notwithstanding the foregoing, if
in connection with an Exit Event distribution, any remaining proceeds (after
giving effect to Section 10.2(c)) are not sufficient (A) to make payments of
all required Catch Up Payments pursuant to Section 10.2(d) and (B) to pay any
amounts required to be paid to all Management Members and Ex-Management
Members pursuant to the terms of Section 10.2(e), then the Compensation
Committee shall have discretion to allocate any such remaining proceeds among
the Management Members and Ex-Management Members (including in respect of
Catch Up Payments then due) in an equitable manner taking into account the
intent of this Agreement. The implementation of, and all decisions with
respect to, this Section 10.9 shall be determined by the Board or the
Compensation Committee in its good faith discretion.
Section 10.10 Fifth Amended Catch Up Payments. Notwithstanding anything
to the contrary, with respect to any distributions of Distributable Amounts
following the Fifth Amended LLC Effective Date, prior to making any
distributions pursuant to Section 10.2 (other than as set forth in Section
10.2(b)), first an Interest Priority Payment (as defined below) and then a
Vesting Service Catch Up Payment (as defined below) shall be paid to each of
the individuals set forth on Schedule 10.10 (pro rata to each individual in
accordance with the amount of such payment required to be made to such
individual relative to the aggregate amount of all such payments to all
individuals as listed on Schedule 10.10) as a priority distribution before
payment of any amounts are distributed to any other Members; provided, that,
once the Interest Priority Payment and Vesting Service Catch Up Payment is
paid in full to each of the individuals set forth on Schedule 10.10 in
accordance with Section 10.2(b) such individuals shall no longer have a right
to receive any Interest Priority Payments and Vesting Service Catch Up
Payments in future distributions under this Agreement. For purposes of this
Section 10.10, (i) an "Interest Priority Payment" means, for each Management
Member, the amount set forth
44
opposite such Management Member's name on Schedule 10.10 under the heading
"Interest Priority Payment," and (ii) a "Vesting Service Catch Up Payment",
means, for each Management Member, the amount set forth opposite such
Management Member's name on Schedule 10.10 under the heading "Vesting Service
Catch Up Payment". Notwithstanding the foregoing, if in connection with an
Exit Event distribution, any remaining proceeds are not sufficient to make
payments of all required Interest Priority Payments and Vesting Service Catch
Up Payments pursuant to Section 10.2(b), then the Compensation Committee shall
have discretion to allocate any such remaining proceeds among the Management
Members and Ex-Management Members (including in respect of Interest Priority
Payments and Vesting Service Catch Up Payments then due) in an equitable
manner taking into account the intent of this Agreement. The implementation
of, and all decisions with respect to, this Section 10.10 shall be determined
by the Board or the Compensation Committee in its good faith discretion.
Section 10.11 Periodic Catch Up Payments. From and after the time the
Interest Priority Payments and Vesting Service Catch Up Payments are made in
full pursuant to Section 10.2(b), the Board shall have discretion to make
periodic upward adjustments to the allocation of Distributable Amounts to the
Management Members in respect of Points held by such Management Members that
have a different Carry Percentage at the time of such distribution in question
as compared to the Carry Percentage that was used to calculate the allocation
of Distributable Amounts made to such Management Members at the time of any
prior interim distributions. The intention of the foregoing is to allocate an
additional portion of future Distributable Amounts to Management Members in
respect of Points then held in an incremental amount (in excess of actual
receipts) that such Management Member would have received pursuant to Section
10.2 at each such prior interim distribution if the Points held by such
Management Member had participated at the then existing Carry Percentage,
after giving effect to this Section 10.11, (as opposed to the Carry Percentage
that existed at the time of the prior distribution). To illustrate the
foregoing, if the Board determines to make an upward adjustment as
contemplated by this Section 10.11 at a future distribution of Distributable
Amounts, the Board may make a comparative evaluation to determine the
difference between (x) the actual amount of distributions received by the
Management Members prior to such distribution in question plus the amount that
would be distributed to the Management Members in such distribution in
question if this Section 10.11 adjustment was not applicable to such
distribution and (y) the aggregate amount that the Management Members would
have received if all prior distributions were being made in one lump sum
payment at the time of the distribution in question (including the amounts
actually being distributed at the time of such distribution). The positive
difference between (x) and (y) may represent the aggregate adjustment to be
made at the time of such distribution in which the Board determines to
implement the principles of Section 10.11. The implementation of, and all
decisions (including, without limitation, the calculation of the actual amount
payable and the timing of such payments) with respect to, this Section 10.10
shall be determined by the Board or the Compensation Committee in its good
faith discretion.
45
ARTICLE XI
BOOKS AND RECORDS
Section 11.1 Books, Records and Financial Statements. At all times during
the continuance of the Company, the Company shall maintain, at its principal
place of business, separate books of account for the Company that shall show a
true and accurate record of all costs and expenses incurred, all charges made,
all credits made and received and all income derived in connection with the
operation of the Company's business in accordance with generally accepted
accounting principles consistently applied, and, to the extent inconsistent
therewith, in accordance with this Agreement. Such books of account, together
with a copy of this Agreement and the Certificate, shall at all times be
maintained at the principal place of business of the Company and shall be open
to inspection and examination at reasonable times by each Member owning Units
and its duly authorized representative for any purpose reasonably related to
such Member's interest in the Company, provided that the Company may maintain
the confidentiality of Schedule B. The Company shall provide to all Members
owning Units, within 120 days of fiscal year end, annual audited financial
statements of the Company. The annual audited financial statements may be
provided to all such Members, in the sole discretion of the Board, either
electronically or via hard copy.
Section 11.2 Filings of Returns and Other Writings; Tax Matters Partner.
(a) The Company shall timely file all Company tax returns and shall
timely file all other writings required by any governmental authority having
jurisdiction to require such filing. Within 90 days after the end of each
taxable year (or as soon as reasonably practicable thereafter), the Company
shall send to each Person that was a Member at any time during such year such
information as may be necessary for such Person to file his, her or its United
States federal income tax returns.
(b) KIA VII shall be the tax matters partner of the Company, within the
meaning of section 6231 of the Code (the "Tax Matters Partner") unless a
Majority in Interest votes otherwise. Each Member hereby consents to such
designation and agrees that upon the request of the Tax Matters Partner, such
Member will execute, certify, acknowledge, deliver, swear to, file and record
at the appropriate public offices such documents as may be necessary or
appropriate to evidence such consent.
(c) Promptly following the written request of the Tax Matters Partner,
the Company shall, to the fullest extent permitted by law, reimburse and
indemnify the Tax Matters Partner for all reasonable expenses, including
reasonable legal and accounting fees, claims, liabilities, losses and damages
incurred by the Tax Matters Partner in connection with any administrative or
judicial proceeding with respect to the tax liability of the Members, except
to the extent arising from the bad faith, gross negligence, willful violation
of law, fraud or breach of this Agreement by such Tax Matters Partner.
46
(d) The provisions of this Section 11.2 shall survive the termination of
the Company or the termination of any Member's interest in the Company and
shall remain binding on the Members for as long a period of time as is
necessary to resolve with the Internal Revenue Service any and all matters
regarding the U.S. federal income taxation of the Company or the Members.
Section 11.3 Accounting Method. For both financial and tax reporting
purposes, the books and records of the Company shall be kept on the accrual
method of accounting applied in a consistent manner and shall reflect all
Company transactions and be appropriate and adequate for the Company's
business.
Section 11.4 Appraisal. The Company shall engage, from time to time, but
not less often than within 90 days after every fiscal year, commencing with
the fiscal year ending on December 31, 2005, a nationally recognized
independent valuation consultant or appraiser of national standing reasonably
satisfactory to Xxxxx and the Chief Executive Officer of Eagle Shipping (which
approval shall not be unreasonably withheld) (the "Appraiser") to appraise the
Fair Market Value of the Interests as of the last day of the fiscal year then
most recently ended or, at the request of the Company, as of any more recent
date (the "Appraisal Date") and to prepare and deliver a report to the Company
describing the results of such appraisal (the "Appraisal"). The Company shall
bear the fees and expenses of each Appraisal.
ARTICLE XII
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 12.1 Liability. Except as otherwise provided by the Xxxxxxxx
Islands Act, the debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the Company, and no Covered Person shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Covered Person.
Section 12.2 Exculpation. No Covered Person shall be liable to the
Company or any other Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company and in a manner believed to be within the
scope of authority conferred on such Covered Person by this Agreement, except
that a Covered Person shall be liable for any such loss, damage or claim
incurred by reason of such Covered Person's gross negligence, willful
misconduct or willful breach of this Agreement.
Section 12.3 Fiduciary Duty. To the extent that, at law or in equity, a
Covered Person has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any other Covered Person, a Covered
Person acting under this Agreement shall not be liable to the Company or to
any other Covered Person for its good faith reliance on the provisions of this
47
Agreement. The provisions of this Agreement, to the extent that they restrict
the duties and liabilities of a Covered Person otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and
liabilities of such Covered Person.
Section 12.4 Indemnification. To the fullest extent permitted by
applicable law, a Covered Person shall be entitled to indemnification from the
Company for any loss, damage or claim incurred by such Covered Person by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company and in a manner believed to be within the
scope of authority conferred on such Covered Person by this Agreement, except
that no Covered Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Covered Person by reason of such
Covered Person's gross negligence, willful misconduct or willful breach of
this Agreement with respect to such acts or omissions; provided, that any
indemnity under this Section 12.4 shall be provided out of and to the extent
of Company assets only, and no Covered Person shall have any personal
liability on account thereof.
Section 12.5 Expenses. To the fullest extent permitted by applicable law,
expenses (including, without limitation, reasonable attorneys' fees,
disbursements, fines and amounts paid in settlement) incurred by a Covered
Person in defending any claim, demand, action, suit or proceeding relating to
or arising out of their performance of their duties on behalf of the Company
shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Company of an undertaking by or on behalf of the Covered Person to repay
such amount if it shall ultimately be determined by a court of competent
jurisdiction that the Covered Person is not entitled to be indemnified as
authorized in Section 12.4.
Section 12.6 Severability. To the fullest extent permitted by applicable
law, if any portion of this Article shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless indemnify
each Covered Person and may indemnify each employee or agent of the Company as
to costs, charges and expenses (including reasonable attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action,
suit or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Company, to the fullest extent
permitted by any applicable portion of this Article that shall not have been
invalidated.
ARTICLE XIII
TRANSFERS OF INTERESTS
Section 13.1 Restrictions on Transfers of Interests or Special Membership
Interests by Management Members, Outside Investor Members and Other Investor
Members. No Member (other than the Xxxxx Members) may Transfer any Interests
or Special Membership Interests (including, without limitation to any other
Member, or by gift, or by operation of law or otherwise, provided that
Interests and/or Special Membership Interests may be Transferred (a)
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pursuant to Section 13.2 ("Estate Planning Transfers, Transfers Upon Death"),
(b) in accordance with Section 13.5 ("Puts"), (c) in accordance with Section
13.6 ("Involuntary Transfers"), (d) pursuant to Section 13.10(a) ("Tag-Along
Rights") and (e) pursuant to Section 13.10(b) ("Drag-Along Rights").
Notwithstanding the foregoing, Zoullas may Transfer his Interests and/or
Special Membership Interests to any of his Affiliates or to any Outside
Investor Member or its Affiliates, and any Outside Investor Member may
transfer its Interests and/or Special Membership Interests to its Affiliates
or to Zoullas or any of his Affiliates, subject in each case to the
requirements of applicable law. Each Other Investor Member may transfer its
Interests and/or Special Membership Interests to any of its Affiliates. The
Kelso Members shall be free to Transfer their Interests and/or Special
Membership Interests, in whole or in part, at any time, subject to Section
13.10(a) and (b).
Section 13.2 Estate Planning Transfers; Transfers upon Death of a
Management Member, Outside Investor Members or Other Investor Members.
Interests and/or Special Membership Interests held by any Member may be
transferred for estate-planning purposes of such Member, authorized by the
prior written approval of the Board which shall not be unreasonably withheld
(excluding such Member and other members of the Board who are designees of
such Member), to (A) a trust under which the distribution of the Interests
and/or Special Membership Interests may be made only to beneficiaries who are
such Member, his or her spouse, his or her parents, members of his or her
immediate family or his or her lineal descendants, (B) a charitable remainder
trust, the income from which will be paid to such Member during his or her
life, (C) a corporation, the members or shareholders of which are only such
Member, his or her spouse, his or her parents, members of his or her immediate
family or his or her lineal descendants or (D) a partnership or limited
liability company, the partners or members of which are only such Member, his
or her spouse, his or her parents, members of his or her immediate family or
his or her lineal descendants. Interests and/or Special Membership Interests
may be transferred as a result of the laws of descent, provided that any
heirs, executors or other beneficiaries shall remain subject to the terms of
this Agreement as if such Member continued to hold the Interests and/or
Special Membership Interests, as applicable, directly.
Section 13.3 Effect of Assignment. The Company shall, from the effective
date of any permitted assignment or Transfer of an Interest and/or Special
Membership Interest (or part thereof), as applicable, thereafter pay all
further distributions or payments on account of such Interest and/or Special
Membership Interest (or part thereof), as applicable, to the assignee or
transferee, as applicable, of such Interest and/or Special Membership
Interests (or part thereof), as applicable. It is understood that for purposes
of Section 10.2(c) of this Agreement, any Member transferring Units (including
a transfer of Units to the Company pursuant to Section 13.5 hereof) shall be
deemed to have made Aggregate Investments in an amount ratably reduced by the
proportion of such Member's total Units (before giving effect to the
applicable transfer) so transferred.
49
Section 13.4 Overriding Provisions.
(a) Any Transfer in violation of this Article XIII shall be null and void
ab initio, and the provisions of Section 13.3 shall not apply to any such
Transfers. The approval of any Transfer in any one or more instances shall not
limit or waive the requirement for such approval in any other or future
instance.
(b) All Transfers permitted under this Article XIII are subject to this
Section 13.4, Section 13.5 and Section 13.10.
(c) Any proposed Transfer by a Member pursuant to the terms of this
Article XIII shall, in addition to meeting all of the other requirements of
this Agreement, satisfy the following conditions: (i) the Transfer will not be
effected on or through an "established securities market" or a "secondary
market or the substantial equivalent thereof," as such terms are used in
Treasury Regulations section 1.7704-1, and, at the request of the Board, the
transferor and the transferee will have each provided the Company a
certificate to such effect; and (ii) the proposed Transfer will not result in
the Company having more than 99 Members, within the meaning of Treasury
Regulations section 1.7704-1(h)(1) (determined pursuant to the rules of
Treasury Regulations section 1.7704-1(h)(3)). The Board may in its sole
discretion waive the condition set forth in clause (ii) of this Section
13.4(c).
(d) The Company shall promptly amend Schedule A and/or Schedule E, as
applicable, to reflect any permitted Transfers of Interests or Special
Membership Interests, as applicable, pursuant to this Article XIII.
Section 13.5 Put Rights with respect to Interests and Special Membership
Interests Owned by Zoullas and the Outside Investor Members.
(a) Sale to the Company ("Put Rights"). Subject to all provisions of this
Section 13.5(a) and to Section 13.5(b) ("Prohibited Purchases"), unless
otherwise provided in an employment or services agreement between the Company
or any Subsidiary of the Company and Zoullas, Zoullas shall have the right to
sell to the Company, and the Company shall have the obligation to purchase
from Zoullas and the Outside Investor Members, all, but not less than all, of
the Interests and Special Membership Interests owned by Zoullas and the
Outside Investor Members following the termination of employment of Zoullas,
at their Fair Market Value (as of the date of the Put Notice (as defined
below)), if the employment of Zoullas with the Company or any Subsidiary that
employs Zoullas (or by the Company on behalf of any such Subsidiary) (i) is
terminated without Cause or (ii) terminates as a result of (A) the death or
Disability of Zoullas, (B) the Resignation of Zoullas for Good Reason or (C)
upon the approval of such right by the Compensation Committee, the Retirement
of Zoullas. If Zoullas desires to sell Interests and Special Membership
Interests pursuant to this Section 13.5(a), he (or his estate, as the case may
be) shall notify the Company (such notice, the "Put Notice") not more than 60
days after the qualifying termination of employment as described in (i) and
(ii) above (such 60 day period, the
50
"Put Notice Period"). Failure to deliver the Put Notice within the Put Notice
Period pursuant to the preceding sentence shall constitute a waiver of the Put
Right by Zoullas (or his estate). Subject to the provisions of paragraphs (b)
and (c) of this Section 13.5, the Company shall purchase and deliver payment
for the Interests and Special Membership Interests of the Zoullas and the
Outside Investor Members not later than 60 days after receipt of the Put
Notice. The Company shall be permitted to use the proceeds from any key man
insurance policy on Zoullas to fulfill its obligations under this Section
13.5.
(b) Prohibited Purchases. Notwithstanding anything to the contrary
herein, and unless otherwise provided in an employment or services agreement
between the Company or any Subsidiary of the Company, and Zoullas, the Company
shall not be permitted or obligated to purchase any Interests and/or Special
Membership Interests from Zoullas or any Outside Investor Member hereunder to
the extent (i) the Company is prohibited from purchasing such Interests and/or
Special Membership Interests (or incurring debt to finance the purchase of
such Interests and/or Special Membership Interests), or a Subsidiary is
restricted from distributing funds to the Company for such purchase, in any
case by any debt instruments or agreements, including any amendment, renewal,
extension, substitution, refinancing, replacement or other modification
thereof, which have been entered into or which may be entered into by the
Company or any of its Subsidiaries, including those to finance the acquisition
of assets or businesses by the Company or any of its Subsidiaries and any
future acquisitions or recapitalizations (the "Financing Documents") or by
applicable law, (ii) an event of default has occurred (or, with notice or the
lapse of time or both, would occur) under any Financing Document and is (or
would be) continuing, or (iii) the purchase of such Interests and/or Special
Membership Interests (including the incurrence of any indebtedness in
connection with the financing of such purchase) or the distribution of funds
to the Company by a Subsidiary for such purchase (1) would, or in the opinion
of the Board (excluding from such determination Zoullas and other members of
the Board who are designees of the Zoullas or the Outside Investor Members)
might, result in the occurrence of an event of default under any Financing
Document or create a condition which would or might, with notice or lapse of
time or both, result in such an event of default, or (2) would, in the
reasonable opinion of the Board (excluding Zoullas and other members of the
Board who are designees of Zoullas or the Outside Investor Members), be
imprudent in view of the financial condition (present or projected) of the
Company or any of its Subsidiaries or the anticipated impact of the purchase
of such Interests and/or Special Membership Interests on the Company's or any
of its Subsidiaries' ability to meet their respective obligations under any
Financing Document or otherwise, or to satisfy and make their planned capital
or other expenditures or satisfy any related obligations. If Interests and/or
Special Membership Interests which the Company has the right or obligation to
purchase on any date exceed the total amount permitted to be purchased on such
date pursuant to the preceding sentence (the "Maximum Amount"), the Company
shall purchase on such date only that number of Interests and/or Special
Membership Interests up to the Maximum Amount (if any) (and shall not be
required to purchase more than the Maximum Amount) in such amounts as the
Board shall in good faith determine.
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(c) Form of Payment. Notwithstanding anything to the contrary contained
in this Agreement, if the Company is unable to make any payment when due to
Zoullas or any Outside Investor Member under this Agreement by reason of
paragraph (b) of this Section 13.5, the Company shall have the option to pay
all or a portion of the purchase price for such Interests and Special
Membership Interests, as applicable, with a subordinated note accruing simple
interest at 6% per annum which is fully subordinated in right of payment and
exercise of remedies to the lenders' rights under the Financing Documents and
the maturity date of which is 30 days after the latest maturity date on any
debt of the Company which is outstanding (or reasonably expected to become
outstanding) as of the date such subordinated note is issued; provided, that
if all or a portion of the purchase price will be paid by delivery of a
subordinated note, at least 10 business days prior to the payment due date,
the Company shall notify Zoullas (or his estate, as the case may be) that it
will pay all or a portion of the purchase price with a subordinated note, and
Zoullas (or his estate, as the case may be) shall have 10 business days from
receipt of such notice to rescind his or her (or his or her estate's, as the
case may be) election to sell his Interests and Special Membership Interests,
as applicable, and those of the Outside Investor Members to the Company.
(d) Interests of Outside Investor Members. Notwithstanding anything in
this Agreement to the contrary, for purposes of this Section 13.5, the
exercise of the Put Right by Zoullas with respect to Interests and Special
Membership Interests, as applicable, owned by him and the Outside Investor
Members shall be deemed to be binding on the Outside Investor Members with
respect to the Interests and Special Membership Interests, as applicable,
owned by the Outside Investor Members. Upon any exercise by Zoullas, and
subject to the provisions of paragraphs (b) and (c) of this Section 13.5, each
Outside Investor Member shall have the obligation to sell, and the Company
shall have the obligation to purchase, all of each such Outside Investor
Member's Interests and Special Membership Interests, as applicable, on the
terms set forth in this Section 13.5 (it being understood that any rescission
by Zoullas shall also be deemed to be a rescission with respect to the
Interests and Special Membership Interests, as applicable, owned by the
Outside Investor Members). The exercise of the Put Right by Zoullas may have
such other consequences to Zoullas (including consequences with respect to the
forfeiture of Points) as may be set forth in any employment or services
agreement between the Company or one of its Subsidiaries and Zoullas.
Section 13.6 Involuntary Transfers. Any transfer of title or beneficial
ownership of Interests or Special Membership Interests, as applicable, upon
default, foreclosure, forfeit, divorce, court order or otherwise than by a
voluntary decision on the part of a Management Member, Outside Investor Member
or Other Investor Member (each, an "Involuntary Transfer") shall be void
unless such Management Member, Outside Investor Member or Other Investor
Member complies with this Section 13.6 and enables the Company to exercise in
full its rights hereunder. Upon any Involuntary Transfer, the Company shall
have the right to purchase such Interests or Special Membership Interests, as
applicable, pursuant to this Section 13.6 and the person or entity to whom
such Interests or Special Membership Interests, as applicable, have been
Transferred (the "Involuntary Transferee") shall have the obligation to sell
such Interests
52
or Special Membership Interests, as applicable, in accordance with this
Section 13.6. Upon the Involuntary Transfer of any Interest or Special
Membership Interests, as applicable, such Management Member, Outside Investor
Member or Other Investor Member shall promptly (but in no event later than two
days after such Involuntary Transfer) furnish written notice to the Company
indicating that the Involuntary Transfer has occurred, specifying the name of
the Involuntary Transferee, giving a detailed description of the circumstances
giving rise to, and stating the legal basis for, the Involuntary Transfer.
Upon the receipt of the notice described in the preceding sentence, and for 60
days thereafter, the Company shall have the right to purchase, and the
Involuntary Transferee shall have the obligation to sell, all (but not less
than all) of the Interests and Special Membership Interests acquired by the
Involuntary Transferee for a purchase price equal to the lesser of (i) the
Fair Market Value of such Interests or Special Membership Interests, as
applicable, and (ii) the amount of the indebtedness or other liability that
gave rise to the Involuntary Transfer plus the excess, if any, of the Carrying
Value of such Interests or Special Membership Interests, as applicable, over
the amount of such indebtedness or other liability that gave rise to the
Involuntary Transfer. For purposes of this Agreement, "Carrying Value", with
respect to any outstanding Special Membership Interest, means the value equal
to the Special Membership Interest Funds advanced by the applicable selling
Management Member, Outside Investor Member or Other Investor Member in respect
of any such outstanding Special Membership Interest (plus any portion of
accrued and unpaid interest on the applicable pro rata outstanding portion of
the Bulk Advances that is allocable to the applicable Member pursuant to
Section 10.8), less principal amounts paid to such Member in respect of such
Member's Special Membership Interest.
Section 13.7 Assignment by the Company. The Company shall have the right
to assign to Xxxxx all or any portion of its rights and obligations under
Sections 13.5(a) or 13.6, provided that any such assignment or assumption is
accepted by Xxxxx. If the Company has not exercised its right to purchase
Interests or Special Membership Interests pursuant to any such section within
15 days of receipt by the Company of the letter, notice or other occurrence
giving rise to such right, then Xxxxx shall have the right to require the
Company to assign such right. Xxxxx shall have the right to assign to one or
more of the Xxxxx Members all or any of its rights to purchase Interests or
Special Membership Interests pursuant to this Section 13.7.
Section 13.8 Substitute Members. In the event any Management Member,
Outside Investor Member, Other Investor Member or Xxxxx Member Transfers its
Interest or Special Membership Interests in compliance with the other
provisions of this Article XIII, the transferee thereof shall have the right
to become a substitute Management Member, Outside Investor Member, Other
Investor Member or substitute Xxxxx Member, as the case may be, but only upon
satisfaction of the following:
(a) execution of such instruments as the Board deems reasonably necessary
or desirable to effect such substitution; and
53
(b) acceptance and agreement in writing by the transferee of the Member's
Interest or Special Membership Interest, as applicable, to be bound by all of
the terms and provisions of this Agreement and assumption of all obligations
under this Agreement (including breaches hereof) applicable to the transferor.
Section 13.9 Release of Liability. In the event any Member shall sell
such Member's entire interest in the Company (other than in connection with an
Exit Event) in compliance with the provisions of this Agreement, including,
without limitation, pursuant to the last sentence of Section 13.6, without
retaining any interest therein, directly or indirectly, then the selling
Member shall, to the fullest extent permitted by law, be relieved of any
further liability arising hereunder for events occurring from and after the
date of such Transfer; provided, however, that no such Transfer shall relieve
any Management Member of his obligations pursuant to Section 4.6 hereof and
such obligations shall survive any termination of such Management Member's
membership in the Company for the restriction period set forth in Section 4.6.
Section 13.10 Tag-Along and Drag-Along Rights; Initial Members
Participation Rights.
(a) Tag-Along Rights. In the event that at any time any Kelso Member
proposes to Transfer Interests or Special Membership Interests in the Company,
other than any Transfer to an Affiliate of Xxxxx, and such Interests or
Special Membership Interests would represent, together with all Interests and
Special Membership Interests previously Transferred by the Xxxxx Members, more
than 10% of the aggregate Interests and Special Membership Interests, taken
together, held by the Xxxxx Members, then at least thirty (30) days prior to
effecting such Transfer, Xxxxx shall give each Management Member written
notice of such proposed Transfer. Each Management Member shall then have the
right (the "Tag-Along Right"), exercisable by written notice to Xxxxx, to
participate pro rata in such sale by selling a pro rata portion of such
Management Member's Interests or Special Membership Interests, as applicable,
on substantially the same terms (including with respect to representations,
warranties and indemnification) as the selling Xxxxx Members (including
relative proportions of Interests and Special Membership Interests being
sold), provided, however, that any representations and warranties relating
specifically to any Member shall only be made by that Member and any
indemnification provided by the Members shall be based on the relative
Interests and Special Membership Interests being sold by each Member in the
proposed sale, either on a several, not joint, basis or solely with recourse
to an escrow established for the benefit of the proposed purchaser; provided,
further, however, that the form or forms of consideration to be received by
Xxxxx or any Kelso Member in connection with the proposed sale may be
different from that received by the Management Members so long as the value of
the consideration to be received by Xxxxx or any Kelso Member is the same or
less (with respect to each of the Interests and Special Membership Interests
being sold) than what they would have received had they received the same form
or forms of consideration as the Management Members (as reasonably determined
by the Board in good faith). In the event the Kelso Members sell less than
100% of their aggregate Interests and Special Membership Interests in the
Company, and any Management Member exercises its rights
54
under this Section 13.10(a), participation "pro rata in such sale" shall be
based on relative Capital Contributions unless the Compensation Committee
deems the provisions of Article X operative.
(b) Drag-Along Rights. (i) Subject to the provisions of Section 13.12
("Right of First Offer"), in the event that at any time any Kelso Member (A)
proposes to Transfer Interests or Special Membership Interests in the Company,
other than any Transfer to an Affiliate of Xxxxx, and such Interests or
Special Membership Interests would represent, together with all Interests and
Special Membership Interests previously Transferred by the Xxxxx Members, more
than 75% of the aggregate Interests and Special Membership Interests, taken
together, held by the Kelso Members or (B) desires to effect an Exit Event,
the Xxxxx Members shall have the right (the "Drag-Along Right"), upon written
notice to the other Members, to require that each other Member join pro rata
in such sale on substantially the same terms (including with respect to
representations, warranties and indemnification) as the selling Xxxxx Members,
provided, however, that any representations and warranties relating
specifically to any Member shall only be made by that Member and any
indemnification provided by the Members shall be based on the relative
purchase price being received by each Member in the proposed sale, either on a
several, not joint, basis or solely with recourse to an escrow established for
the benefit of the proposed purchaser; provided, further, however, that the
form or forms of consideration to be received by Xxxxx or any Xxxxx Member in
connection with the proposed sale may be different from that received by the
other Members so long as the value of the consideration to be received by
Xxxxx or any Kelso Member is the same or less (with respect to each of the
Interests and Special Membership Interests being sold) than what they would
have received had they received the same form or forms of consideration as the
other Members (as reasonably determined by the Board in good faith).
Notwithstanding the foregoing, the Kelso Members shall not be permitted to
exercise the Drag-Along Right for a period of 18 months following the date
hereof (the "Xxxxx Restriction Period") unless (x) the Company or any of its
Subsidiaries is in default under any Financing Document or (y) for any fiscal
quarter, in the good faith reasonable judgment of the Board, the Company and
its Subsidiaries have failed to meet or exceed 75% of targeted EBITDA (as set
forth in most recently business plan approved by the Board) for such period as
set forth in the most recent business plan approved by the Board for such
period. For purposes of this Section 13.10, for each Member, "joining the
Xxxxx Members in such sale" shall include voting its Interests consistently
with the Xxxxx Members, transferring its Interests or Special Membership
Interests to a corporation organized in anticipation of such sale in exchange
for capital stock or other securities of such corporation, executing and
delivering agreements and documents which are being executed and delivered by
the Xxxxx Members and providing such other cooperation as the Xxxxx Members
may reasonably request.
(ii) Any Exit Event may be structured as an auction and may be initiated
by the delivery to the Company and the other Members of a written notice that
Xxxxx has elected to initiate an auction sale procedure. Xxxxx shall be
entitled to take all steps reasonably necessary to carry out an auction of the
Company, including, without limitation, selecting an investment bank,
providing confidential information (pursuant to confidentiality agreements),
selecting
55
the winning bidder and negotiating the requisite documentation. The Company
and each Member shall provide assistance with respect to these actions as
reasonably requested.
(iii) In the event the Kelso Members sell less than 100% of their
Interests and Special Membership Interests in the aggregate in the Company,
joining "pro rata in such sale" shall be based on relative Capital
Contributions and Special Membership Interest Aggregate Funds unless the
Compensation Committee deems the provisions of Article X operative.
(c) Any transaction costs, including transfer taxes and legal, accounting
and investment banking fees incurred by the Company and Xxxxx in connection
with an Exit Event shall, unless the applicable purchaser refuses, be borne by
the Company in the event of a merger, consolidation or sale of assets and
shall otherwise be borne by the Members on a pro rata basis based on the
consideration received by each Member in such Exit Event.
(d) Initial Members Participation Rights. In addition, in the event the
Board permits any Member (other than a Xxxxx Member) to Transfer Interests or
Special Membership Interests that would not otherwise be permitted by the
terms of this Agreement (such transferring Member, the "Transferor Member"),
then at least thirty (30) days prior to effecting such Transfer, the
Transferor Member shall give each Initial Member written notice of such
proposed Transfer. Each Initial Member shall then have the right exercisable
by written notice to the Transferor Member to participate pro rata in such
sale by selling a pro rata portion of such Initial Member's Interests or
Special Membership Interests, as applicable, on substantially the same terms
(including with respect to representations, warranties and indemnification) as
the Transferor Member, provided, however, that any representations and
warranties relating specifically to any Initial Member shall only be made by
that Initial Member and any indemnification provided by the Initial Members
shall be based on the relative Interests or Special Membership Interests, as
applicable, being sold by each Initial Member in the proposed sale, either on
a several, not joint, basis or solely with recourse to an escrow established
for the benefit of the proposed purchaser; provided, further, however, that
the form or forms of consideration to be received by the Transferor Member in
connection with the proposed sale may be different from that received by the
Initial Members so long as the value of the consideration to be received by
the Transferor Member is the same or less (in respect of each of the Interests
and Special Membership Interests, as applicable) than what they would have
received had they received the same form or forms of consideration as the
Initial Members (as reasonably determined by the Board in good faith).
Section 13.11 Initial Public Offering. [intentionally left blank]
Section 13.12 Right of First Offer.
(a) In the event that the Board determines to sell any of the vessels
owned by any of its Subsidiaries or the equity securities or other interests
in any of its Subsidiaries that own any such vessels to a Third Party (any
such sale, a "Ship Sale") and Zoullas objected to such Ship Sale (such
objection to be evidenced by a negative vote or a no vote by Zoullas (in the
event Zoullas
56
did not have the opportunity to vote) in the meeting of the Board in which the
decision to proceed with a potential Ship Sale was ratified by the Board in
accordance with the terms of this Agreement), the Company shall promptly send
to Zoullas a notice (the "ROFO Notice") setting forth its intentions with
respect to a Ship Sale and offering Zoullas the right (the "ROFO") to make an
offer to purchase the vessel described in the ROFO Notice. Within seven (7)
days of receipt of a ROFO Notice, Zoullas shall notify the Board that he
either (i) wishes to exercise his ROFO with respect to the Ship Sale described
in the ROFO Notice or (ii) does not intend to exercise such ROFO. The failure
to notify the Board within such seven (7) day period shall be deemed to be a
notice that Zoullas does not intend to exercise his ROFO with respect to such
Ship Sale. In the event Zoullas elects to exercise his ROFO with respect to
the Ship Sale described in the ROFO Notice, Zoullas must, within fourteen (14)
days of his receipt of the ROFO Notice (i) execute a definitive agreement with
respect to such Ship Sale that is at a price acceptable to the Company and on
other terms and conditions reasonably satisfactory to the Company; and (ii)
make a customary deposit and provide credible evidence (as determined by the
Board in its reasonable judgment) of having financing necessary to consummate
such Ship Sale. If Zoullas fails to comply with the requirements of the
immediately preceding sentence (which failure shall include, for the avoidance
of doubt, the price not being acceptable to the Company or the Company not
being reasonably satisfied with the other terms and conditions of the
definitive agreement delivered by Zoullas with respect to such Ship Sale), the
Company shall have no further obligations to Zoullas with respect to such Ship
Sale and the Company may consummate such Ship Sale with a Third Party.
(b) Notwithstanding anything to the contrary contained in paragraph (a)
of this Section 13.12, the Company shall not be required to send a ROFO Notice
and xxxxx Xxxxxxx a ROFO with respect to any Ship Sale if (i) the Board
determines in good faith that the Company in undergoing financial difficulties
at the time of such proposed Ship Sale, (ii) Zoullas is no longer a Member of
the Company at the time of such proposed Ship Sale or (iii) Zoullas has
previously successfully exercised a ROFO with respect to any other Ship Sale
(provided that in the event Zoullas exercises a ROFO but fails to consummate
the Ship Sale that was contemplated by the ROFO Notice by reason of Zoullas'
failure to obtain the financing necessary to consummate such Ship Sale, the
exercise of such ROFO shall be deemed to be a "successful exercise" for
purposes of this clause (iii)).
(c) Notwithstanding anything to the contrary, the provisions of this
Section 13.12 shall terminate, and no party shall have rights or obligations
under this Section 13.12, upon and following an IPO.
57
ARTICLE XIV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 14.1 Dissolving Events. The Company shall be dissolved and its
affairs wound up in the manner hereinafter provided upon the happening of any
of the following events:
(a) the Board and the Members shall vote or agree in writing to dissolve
the Company pursuant to the required votes set forth in Sections 5.3 and
4.3(d), respectively;
(b) any event which under applicable law would cause the dissolution of
the Company, provided that, unless required by law, the Company shall not be
wound up as a result of any such event and the business of the Company shall
continue.
Notwithstanding the foregoing, the death, retirement, resignation,
expulsion, bankruptcy or dissolution of any Member or the occurrence of any
other event that terminates the continued membership of any Member in the
Company under the Xxxxxxxx Islands Act shall not, in and of itself, cause the
dissolution of the Company. In such event, the remaining Member(s) shall
continue the business of the Company without dissolution.
Section 14.2 Dissolution and Winding-Up. Upon the dissolution of the
Company, the assets of the Company shall be liquidated or distributed under
the direction of and to the extent determined by the Board and the business of
the Company shall be wound up. Within a reasonable time after the effective
date of dissolution of the Company, the Company's assets shall be distributed
in the following manner and order:
First, to creditors in satisfaction of indebtedness (other than any loans
or advances that may have been made by any of the Members to the Company),
whether by payment or the making of reasonable provision for payment, and the
expenses of liquidation, whether by payment or the making of reasonable
provision for payment, including the establishment of reasonable reserves
(which may be funded by a liquidating trust) determined by the Board or the
liquidating trustee, as the case may be, to be reasonably necessary for the
payment of the Company's expenses, liabilities and other obligations (whether
fixed, conditional, unmatured or contingent);
Second, to the payment of loans or advances that may have been made by
any of the Members to the Company and amounts owed in respect of outstanding
Special Membership Interests pursuant to Section 10.8; and
Third, to the Members in accordance with Section 10.2, taking into
account any amounts previously distributed under Section 10.2,
provided that no payment or distribution in any of the foregoing categories
shall be made until all payments in each prior category shall have been made
in full, and provided, further, that if the
58
payments due to be made in any of the foregoing categories exceed the
remaining assets available for such purpose, such payments shall be made to
the Persons entitled to receive the same pro rata in accordance with the
respective amounts due to them.
To the extent that the balances in the Capital Accounts, after adjusting the
Capital Accounts for all allocations of Profits and Losses and all special
book allocations and all distributions other than liquidating distributions
under this Section 14.2, do not equal the amounts to be distributed hereunder,
then, any provision in this Agreement to the contrary notwithstanding, the
Company shall allocate gross income or gross deductions for its last Fiscal
Year to the extent necessary in order that such Capital Accounts equal the
distributions to be made to the Members pursuant to this Section 14.2; and to
the extent such gross income or gross deductions are not sufficient, shall
allocate gross income and gross deductions for the next preceding Fiscal Year
to the extent necessary in order that such Capital Accounts equal such
distributions; and to the extent such gross income or gross deductions are not
sufficient, shall allocate gross income or gross deductions for the second
preceding Fiscal Year, and so forth, with respect to all Company taxable years
for which an amended return can be timely filed, to the extent necessary to
cause such Capital Accounts to equal the amounts to be distributed hereunder.
Section 14.3 Distributions in Cash or in Kind. Upon the dissolution of
the Company, the Board shall use all commercially reasonable efforts to
liquidate all of the Company's assets in an orderly manner and apply the
proceeds of such liquidation as set forth in Section 14.2, provided that if in
the good faith judgment of the Board, a Company asset should not be
liquidated, the Board shall cause the Company to allocate, on the basis of the
Fair Market Value of any Company assets not sold or otherwise disposed of, any
unrealized gain or loss based on such value to the Members' Capital Accounts
as though the assets in question had been sold on the date of distribution
and, after giving effect to any such adjustment, distribute such assets in
accordance with Section 14.2 as if such Fair Market Value had been received in
cash, subject to the priorities set forth in Section 14.2, and provided,
further, that the Board shall in good faith attempt to liquidate sufficient
Company assets to satisfy in cash (or make reasonable provision for) the debts
and liabilities referred to in Section 14.2.
Section 14.4 Termination. The Company shall terminate when the winding up
of the Company's affairs has been completed, all of the assets of the Company
have been distributed and the Certificate has been canceled, all in accordance
with the Xxxxxxxx Islands Act.
Section 14.5 Claims of the Members. The Members and former Members shall
look solely to the Company's assets for the return of their Capital
Contributions, and if the assets of the Company remaining after payment of or
due provision for all debts, liabilities and obligations of the Company are
insufficient to return such Capital Contributions, the Members and former
Members shall have no recourse against the Company or any other Member.
59
ARTICLE XV
MISCELLANEOUS
Section 15.1 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by fax, as follows
(or to such other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
(a) If to the Company:
Eagle Ventures LLC
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxx & Company, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, XX
and a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxx X. Xxxxx
(b) If to a Member, at the address set forth opposite such Member's name
on Schedule A attached hereto, or at such other address as such Member may
hereafter designate by written notice to the Company.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received by (w) if by personal delivery, on the
day delivered, (x) if by certified or registered mail, on the fifth business
day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, or (z) if by fax, on the day delivered,
provided that such delivery is confirmed.
60
Section 15.2 Securities Act Matters. Each Member understands that in
addition to the restrictions on transfer contained in this Agreement, he or
she must bear the economic risks of his or her investment for an indefinite
period because neither the Interests nor the Special Membership Interests have
been registered under the Securities Act.
Section 15.3 Headings; Interpretation. The headings contained in this
Agreement are for purposes of convenience only and shall not affect the
meaning or interpretation of this Agreement. If any claim is made by a party
relating to any conflict, omission or ambiguity in the provisions of this
Agreement, no presumption or any burden of proof or persuasion will be implied
because this Agreement was prepared by or at the request of any party or its
counsel.
Section 15.4 Entire Agreement. This Agreement constitutes the entire
agreement among the Members with respect to the subject matter hereof, and
supersedes any prior agreement or understanding among them with respect to
such subject matter.
Section 15.5 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
Section 15.6 Governing Law; Attorneys' Fees; Forum; Jurisdiction; Service
of Process. This Agreement shall be governed in all respects, including as to
validity, construction, interpretation and effect, by the substantive laws of
the Xxxxxxxx Islands, without giving effect to the conflict of laws rules
thereof. The substantially prevailing party in any action or proceeding
relating to this Agreement shall be entitled to receive an award of, and to
recover from the other party or parties, any fees or expenses incurred by him,
her or it (including, without limitation, reasonable attorneys' fees and
disbursements) in connection with any such action or proceeding. Each party
hereby irrevocably and unconditionally agrees that any legal action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby must be brought in the State of New York, City of New York
and hereby expressly submits to the personal jurisdiction and venue of such
courts for the purposes thereof and expressly waives any claim of improper
venue and any claim that such courts are an inconvenient forum. Each party
hereby irrevocably consents to the service of process of any of the
aforementioned court by notice in the manner specified in Section 15.1.
Section 15.7 Waiver of Jury Trial. EACH MEMBER HEREBY WAIVES THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 15.8 Waiver of Partition. Except as may otherwise be provided by
law in connection with the winding-up, liquidation and dissolution of the
Company, each Member
61
hereby irrevocably waives any and all rights that it may have to maintain an
action for partition of any of the Company's property.
Section 15.9 Severability. If any provision of this Agreement is
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering the provision in question inoperative or unenforceable
in any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any
extent whatsoever, so long as this Agreement, taken as a whole, still
expresses the material intent of the parties hereto. The invalidity of any one
or more phrases, sentences, clauses, Sections or subsections of this Agreement
shall not affect the remaining portions of this Agreement.
Section 15.10 Further Actions. Each Member shall execute and deliver such
other certificates, agreements and documents, and take such other actions, as
may reasonably be requested by the Company in connection with the continuation
of the Company and the achievement of its purposes, including, without
limitation, (a) any documents that the Company deems necessary or appropriate
to continue the Company as a limited liability company in all jurisdictions in
which the Company or its Subsidiaries conduct or plan to conduct business and
(b) all such agreements, certificates, tax statements and other documents as
may be required to be filed in respect of the Company.
Section 15.11 Amendments. This Agreement (including this Section 15.11)
may not be amended, modified or supplemented except by a written instrument
signed by a Majority in Interest; provided, however, that the Board may (i)
pursuant to Section 4.8, make such modifications to this Agreement, including
Schedule A and Schedule B, as are necessary to admit additional Members and
(ii) pursuant to Section 10.8, make modifications to Schedule E, and (iii) to
the extent that any provision related to Units is subject to Section 409A of
the Code and fails to comply with the requirements of Section 409A of the
Code, amend, modify or supplement such provision in order to cause it to
either not be subject to Section 409A of the Code or to comply with the
applicable provisions of such section. Notwithstanding the foregoing, for so
long as Zoullas is a Member of the Company, no amendment, modification or
supplement to this Agreement shall adversely affect Zoullas or the Outside
Investor Members relative to the other Members unless such amendment,
modification or supplement is signed by Zoullas, other than any amendment,
modification or supplement required to comply with Section 409A of the Code.
The Company shall notify all Members after any such amendment, modification or
supplement, other than any amendments to Schedule A, Schedule B, Schedule E or
any amendment required to comply with Section 409A of the Code, as permitted
herein, has taken effect. Each Member acknowledges and agrees that in the
event that the Board determines that Special Membership Interests shall be
exchanged for Interests in the Company (or another form of security), the
Board may affect such exchange and amend and make any modifications to this
agreement and Schedule E which it considers necessary or appropriate to
reflect any such exchange.
62
Section 15.12 Outside Investor Members Representative; Power of Attorney.
Each of the Outside Investor Members hereby irrevocably makes, constitutes and
appoints Zoullas as its true and lawful agent, representative and
attorney-in-fact for all purposes relating to this Agreement and to the
Outside Investor Members' ownership of Interests and/or Special Membership
Interests in the Company, including with out limitation, the full power and
authority on the Outside Investor Member's behalf to (i) vote or direct the
voting of such Outside Investor Member's Interests, including with respect to
any amendments to this Agreement; (ii) sell, or direct the sale, of any or all
of such Outside Investor Member's Interests and/or Special Membership
Interests, including a sale to the Company pursuant to the exercise of any
"Put Right" granted to Zoullas pursuant to Section 13.5 of this Agreement;
(iii) collect on behalf of such Outside Investor Member any amounts that the
Company would otherwise pay to such Outside Investor Member in exchange of
Interests and/or Special Membership Interests held by such Outside Investor
Member (whether in the form of cash or a promissory note) pursuant to Zoullas'
decision to exercise the Put Right relating to the Interests and/or Special
Membership Interests held by Zoullas and the Outside Investor Members; and
(iv) to execute and deliver on behalf of such Outside Investor Member any
instruments or other documents related to, and to take any actions deemed
necessary or appropriate by Zoullas in his sole discretion to effectuate, any
of the foregoing. Each of the Outside Investor Members agrees that the Company
shall be entitled to rely upon the power and authority of Zoullas, acting as a
limited representative of such Outside Investor Member, to act on behalf of
such Outside Investor Member with respect to the Put Right described above.
Section 15.13 Power of Attorney. Each Member hereby constitutes and
appoints Xxxxx as his or her true and lawful representative and
attorney-in-fact in his or her name, place and xxxxx to make, execute,
acknowledge, record and file the following:
(a) any amendment to the Certificate which may be required by the laws of
the Xxxxxxxx Islands due to:
(i) any duly made amendment to this Agreement, or
(ii) any change in the information contained in such Certificate, or
any amendment thereto;
(b) any other certificate or instrument which may be required to be filed
by the Company under the laws of the Xxxxxxxx Islands or under the applicable
laws of any other jurisdiction in which counsel to the Company determines that
it is advisable to file;
(c) any certificate or other instrument which Xxxxx or the Board deems
necessary or desirable to effect a termination and dissolution of the Company
which is authorized under this Agreement;
63
(d) any amendments to this Agreement, duly adopted in accordance with the
terms of this Agreement; and
(e) any other instruments that Xxxxx or the Board may deem necessary or
desirable to carry out fully the provisions of this Agreement; provided,
however, that any action taken pursuant to this power shall not, in any way,
increase the liability of the Members beyond the liability expressly set forth
in this Agreement, and provided further that where action by a majority of the
Board is required, such action shall have been taken.
Such attorney-in-fact is not by the provisions of this Section 15.12
granted any authority on behalf of the undersigned to amend this Agreement,
except as provided for in this Agreement. Such power of attorney is coupled
with an interest and shall continue in full force and effect notwithstanding
the subsequent death or incapacity of the Member granting such power of
attorney.
Section 15.14 Fees and Expenses. The Company shall assume (as applicable)
and pay all legal, formation, transaction and related expenses incurred by the
Company and its Subsidiaries (including all such expenses incurred by any
Member on behalf of the Company and its Subsidiaries). Except (i) as provided
in this Agreement, (ii) as provided in any other agreement between the Company
and such Member or its Affiliates (including the letter agreement dated
February 1, 2005, between Xxxxx & Company, L.P., the Company and Eagle
Holdings LLC), or (iii) for the reasonable documented expenses incurred by
Zoullas in respect of the transactions contemplated by this Agreement
(including in connection with Zoullas' negotiation of this Agreement and the
employment agreement between Zoullas and the Company or any Subsidiary of the
Company), all other fees and expenses incurred by any Member in connection
with its investment in the Company (including in connection with such Member's
negotiation of this Agreement) shall be borne by the respective Member
incurring such expenses.
64
Schedule A
Xxxxx Members
Initial Capital
Commitment
Name & Mailing Address Total
Date of Initial SMI Initial Capital Capital
Admission Funds Advance Contribution Commitment Units
----------- -------------- ------------ ---------- -----
Xxxxx Investment Associates VII, L.P. c/o January 28, 2005 43,143,367 30,323,681 73,467,048 30,323,681
Xxxxx & Company, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
KEP VI, LLC January 28, 2005 10,683,112 7,508,733 18,191,845 7,508,733
c/o Kelso & Company, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
65
Management Members
Initial Capital
Commitment
Name & Mailing Address
Total
Date of Initial SMI Initial Capital Capital
Admission Funds Advance Contribution Commitment Units
----------- -------------- ------------ ---------- -----
Xxxxxxxxx Xxxxxxx January 28, 2005 1,024,490 621,836 1,646,326 621,836
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx X. Xxxxx February 1, 2005 8,965 3,911 12,876 3,911
0000 Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx February 1, 2005 22,4717 9,777 32,194 9,777
00 Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Xxxx Xxxxxxxx February 1, 2005 8,965 3,911 12,876 3,911
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
66
Outside Investor Members
Initial Capital
Commitment
Name & Mailing Address
Total
Date of Initial SMI Initial Capital Capital
Admission Funds Advance Contribution Commitment Units
----------- -------------- ------------ ---------- -----
Intercontinental Shipping &
Trading Corp. February 1, 2005 1,826,725 1,173,275 3,000,000 1,173,275
c/o Cruzpren S.L.
Xxxxx Xxxxxxx 00, 0xx Xxxxx
Xxx Xxxxxx 00000
Xxxxxx Xxxxxxx, Xxxxx
Xxxxx Xxxxxxx February 1, 2005 161,083 97,773 258,856 97,773
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx February 1, 2005 161,083 97,773 258,856 97,773
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxxxxx February 1, 2005 134,501 58,664 193,165 58,664
000 Xxxx 00xx Xxxxxx, Xxx 00X
Xxx Xxxx, Xxx Xxxx 00000
67
Other Investor Members
Initial Capital
Commitment
Name & Mailing Address
Total
Date of Initial SMI Initial Capital Capital
Admission Funds Advance Contribution Commitment Units
----------- -------------- ------------ ---------- -----
Xxxxx Xxxxx April 21, 2005 311,144 188,856 500,000 188,856
000 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Magnetite Asset Investors III L.L.C. May 6, 2005 1,244,578 755,422 2,000,000 755,422
c/o BlackRock Financial Management
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
68
Schedule B
Points
-------------------------------------------------------------------------------------------------
Benchmark
Amount
Name Performance Points Service Points (if any) Date of Grant
-------------------------------------------------------------------------------------------------
Sophocles X. Xxxxxxx 750 750 May 11, 2005
-------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxxx 50 50 May 11, 2005
-------------------------------------------------------------------------------------------------
100* 100* $230,168,796 in January 28, 2006
respect of Points
awarded post-IPO
-------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 40 40 May 11, 2005
-------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 40 40 May 11, 2005
-------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx 20* 20* $230,168,796 in January 28, 2006
respect of Points
awarded post-IPO
-------------------------------------------------------------------------------------------------
TOTAL 1000 1000
-------------------------------------------------------------------------------------------------
* Reflects Points awarded after the IPO of Eagle Bulk Shipping, Inc. With
respect to Performance Points, these post IPO Points are "Post IPO Awarded
Performance Points" for purposes of this Agreement. See Schedule 10.9 for more
information relating to these Benchmarked Points.
Schedule C
Initial Directors
Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxxxx Xxxxxxx
Schedule D
Post IPO Performance Percentages - Definitions
The "Total Available Post IPO Remaining Performance Percentage" available
to all Management Members allocated Performance Points (and Ex-Management
Members that retain Performance Points pursuant to this Agreement, if any) on
any date of determination shall equal the product of (x) seven and one half
percent (7.5%) and (y) the Performance Factor (as defined below).
The "Total Stub Performance Percentage" available to all Management
Members allocated Post IPO Awarded Performance Points (and Ex-Management
Members that retain Post IPO Awarded Performance Points pursuant to this
Agreement, if any) on any date of determination shall equal the product of (x)
nine-tenths of one percent (.9%) and (y) the Performance Factor.
For purposes of this Schedule D:
The "Xxxxx Investment Multiple" is computed by dividing (x) (i) the total
Fair Market Value of all distributions (determined pro forma for any
distributions to be made to the Xxxxx Members at the time which the Xxxxx
Investment Multiple is calculated) received by the Xxxxx Members from the
Company in respect of their aggregate investment in the Company (which shall
include, if applicable, the Fair Market Value of any Units distributed by the
Xxxxx Members to any Affiliate of the Xxxxx Members that is not a party to
this Agreement) plus (ii) all principal payments on Bulk Advances and all
Special Interest Payments in each case paid to the Xxxxx Members in respect of
advances of Special Membership Interest Funds by the Xxxxx Members by (y) the
aggregate Capital Contributions of the Xxxxx Members plus the Special
Membership Interest Aggregate Funds advanced by the Xxxxx Members.
The "Xxxxx IRR" means the internal rate of return, compounded annually,
received by the Kelso Members on their aggregate Capital Contributions and
advances of Special Membership Interest Aggregate Funds, calculated after
giving full effect to any reduction in the Xxxxx IRR caused by an increase in
the Total Available Performance Percentage.
The "Performance Factor" is a number (between zero and one) equal to the
quotient obtained by dividing (x) the excess, if positive, of the Xxxxx
Investment Multiple over two (2) by (y) one and one quarter (1.25); provided
however that if such quotient is greater than one (1), the Performance Factor
shall equal one (1); provided further that, if in any date of determination of
Total Available Post IPO Performance Percentage, the Xxxxx IRR calculated as
of such date is less than 10%, the Performance Factor computed pursuant to the
foregoing shall be reduced to such amount as would cause the Xxxxx IRR to
equal 10% or, if there is no such amount, to zero (0).
Compensation Committee Adjustments
Notwithstanding anything in the Agreement to the contrary, as
contemplated by the last sentence of Section 8.5 of the Agreement, the
Compensation Committee shall make such adjustments to the Xxxxx Investment
sMultiple and the Xxxxx IRR or otherwise as it deems
necessary in its good faith discretion to take into account any increase in
interest, fees or other expenses incurred by the Company as a result of a
refinancing or extraordinary dividends, with the general intention that no
such increase in interest, fees or expenses resulting from the refinancing or
extraordinary dividends (as applicable) would have a material adverse effect
on the achievement of a particular Carry Percentage by any Management Member
when measured in terms of dollars to be received (in any distributions
pursuant to Section 10.2) by any such Management Member.
72
Schedule E
Special Membership Interests
--------------------------------------------------------------------------------
Member Special Special Membership Interest
Membership Interest Aggregate Funds
--------------------------------------------------------------------------------
KIA VII 43,143,367 43,143,367
--------------------------------------------------------------------------------
KEP VI 10,683,112 10,683,112
--------------------------------------------------------------------------------
Magnetite 1,244,578 1,244,578
--------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxx 1,024,490 1,024,490
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 8,967 8,967
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 22,417 22,417
--------------------------------------------------------------------------------
Xxxx Xxxxxxxx 8,967 8,967
--------------------------------------------------------------------------------
Intercontinental Shipping &
Trading Corp 1,826,725 1,826,725
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx 161,083 161,083
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 161,083 161,083
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx 134,501 134,504
--------------------------------------------------------------------------------
Xxxxx Xxxxx 311,144 311,144
--------------------------------------------------------------------------------
73
Schedule F
Vested IPO Percentages
--------------------------------------------------------------------------------
Member Vested IPO Percentage
--------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxx 5.625%
--------------------------------------------------------------------------------
Xxxxxx Xxxxx 0.3%
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 0.3%
--------------------------------------------------------------------------------
Xxxx Xxxxxxxx 0.375%
--------------------------------------------------------------------------------
TOTAL VESTED IPO PERCENTAGE 6.6%
--------------------------------------------------------------------------------
74
Schedule 10.9
Benchmarked Points
Benchmarked Points
------------------
Benchmarked Benchmarked Benchmark
Name Performance Points Service Points Amount Trigger Multiple
------ ----------------- --------------- ------ ----------------
Xxxx X. Xxxxxxxx 100 100 $230,168,796 2.184
Xxxxx Xxxxxxx 00 00 $230,168,796 2.184
Schedule Relating to Forfeiture of Benchmarked Service Points
Unless otherwise determined by the Compensation Committee in a manner
more favorable to such Ex-Management Member, or as otherwise provided in an
employment or services agreement between the Company or any Subsidiary of the
Company and such Management Member, if the Management Member's employment with
the Company or any Subsidiary of the Company that employs such individual
terminates for any reason other than for Cause, then the number of Benchmarked
Service Points allocated to such Ex-Management Member shall be adjusted
according to the following schedule (and shall not be adjusted according to
the schedule set forth in Section 8.3(b)):
The Ex-Management
Member's Service
Points shall be
If the termination occurs reduced by
Before May 11, 2006 75.00%
On or after May 11, 2006 but before August 11, 2006 68.75%
On or after August 11, 2006 but before November 11, 2006 62.50%
On or after November 11, 2006 but before February 11, 2007 56.25%
On or after February 11, 2007 but before May 11, 2007 50.00%
On or after May 11, 2007 but before August 11, 2007 43.75%
On or after August 11, 2007 but before November 11, 2007 37.50%
75
On or after November 11, 2007 but before February 11, 2008 31.25%
On or after February 11, 2008 but before May 11, 2008 25.00%
On or after May 11, 2008 but before August 11, 2008 18.75%
On or after August 11, 2008 but before November 11, 2008 12.50%
On or after November 11, 2008 but before February 11, 2009 6.25%
On or after February 11, 2009 0.00%
76
Schedule 10.10
--------------------------------------------------------------------------------
Interest Priority Vesting Service
Member Payment Catch Up Payment
--------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxx $76,027.71 $631,770.03
--------------------------------------------------------------------------------
Xxxx Xxxxxxxx $15,205.54 $42,118.00
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx $4,054.81 $33,694.40
--------------------------------------------------------------------------------
Xxxxxx Xxxxx $4,054.81 $33,694.40
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx $2,027.41 $0
--------------------------------------------------------------------------------
TOTAL $101,370.28 $741,276.84
--------------------------------------------------------------------------------
77
