JOINDER AND RIGHTS AGREEMENT
(_______)
THIS JOINDER AND RIGHTS AGREEMENT (this "AGREEMENT") is made as of
_________, by and between CompleTel LLC, a Delaware limited liability company
(the "COMPANY"), and _________ ("EXECUTIVE"). Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the LLC
Agreement (as defined below).
The holders of interests in the profits, losses, and distributions
of the Company (the "MEMBERS") are parties to a limited liability company
agreement, dated as of May 18, 1998, governing the affairs of the Company (as
amended from time to time in accordance with its terms, the "LLC AGREEMENT").
In connection with the execution of the LLC Agreement, the Company and the
Members entered into a securityholders agreement dated as of May 18, 1998 (as
amended from time to time in accordance with its terms, the "SECURITYHOLDERS
AGREEMENT"), a registration rights agreement dated as of May 18, 1998 (as
amended from time to time in accordance with its terms, the "REGISTRATION
AGREEMENT"), and a performance vesting agreement dated as of May 18, 1998 (as
amended from time to time in accordance with its terms, the "PERFORMANCE
VESTING AGREEMENT") (the LLC Agreement, the Securityholders Agreement, the
Registration Agreement and the Performance Vesting Agreement, collectively
the "Equity Agreements").
The terms of the LLC Agreement contemplate that the Board of
Managers of the Company may approve the issuance of the Company's Common
Units to management and other key employees of the Company and its
Subsidiaries ("Key Employees"), and that in connection with and as a
condition to any such issuance the Key Employee issued such Common Units
shall make a specified contribution to the capital of the Company, shall
enter into an Executive Securities Agreement and become a party to the LLC
Agreement, the Securityholders Agreement, the Registration Agreement, and the
Performance Vesting Agreement, and shall take such other actions as shall be
required by the Board of Managers.
Pursuant thereto, Executive and the Company have entered into an
Executive Securities Agreement of even date herewith (as amended from time to
time according to its terms, the "EXECUTIVE AGREEMENT"), pursuant to which
the Company issued to Executive ______ Common Units having the rights,
obligations, and preferences set forth with respect thereto in the LLC
Agreement (the "PURCHASED UNITS") in exchange for Executive making an initial
capital contribution to the Company in cash in the amount of $____. As
required by the LLC Agreement, and in further consideration of and as a
condition to the Company's agreement to enter into the Executive Agreement
and issue the Purchased Units to Executive, the parties hereto desire that
Executive become a party to the LLC Agreement, the Securityholders Agreement,
the Registration Agreement, and the Performance Vesting Agreement as set
forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. ADDITION OF EXECUTIVE TO THE LLC AGREEMENT. The parties
hereto agree that, by and upon execution of this Agreement, Executive shall
as of the date hereof be a party to the LLC Agreement and shall for all
purposes be considered a "MEMBER" and a holder of "COMMON UNITS" thereunder
and shall be entitled to all the rights and benefits and subject to all the
duties and
obligations of a Member and a holder of Common Units thereunder, as fully as
if Executive were an original signatory thereto in such capacities.
2. ADDITION OF EXECUTIVE TO THE SECURITYHOLDERS AGREEMENT. The
parties hereto agree that, by and upon execution of this Agreement, Executive
shall as of the date hereof be a party to the Securityholders Agreement and
shall for all purposes be considered a "SECURITYHOLDER," a holder of
"SECURITYHOLDER SECURITIES," a holder of "EXECUTIVE SECURITIES," and a holder
of "MANAGEMENT EQUITY" thereunder, and shall be entitled to all the rights
and benefits and subject to all the duties and obligations of a
Securityholder and a holder of Securityholder Securities, Executive
Securities, and Management Equity thereunder, as fully as if Executive were
an original signatory thereto in such capacities.
3. ADDITION OF EXECUTIVE TO THE REGISTRATION AGREEMENT. The
parties hereto agree that, by and upon execution of this Agreement, Executive
shall as of the date hereof be a party to the Registration Agreement and
shall for all purposes be considered a holder of "REGISTRABLE SECURITIES" and
a holder of "MANAGEMENT REGISTRABLE SECURITIES" thereunder and shall be
entitled to all the rights and benefits and subject to all the duties and
obligations of a holder of Registrable Securities and Management Registrable
Securities thereunder, as fully as if Executive were an original signatory
thereto in such capacities.
4. ADDITION OF EXECUTIVE TO THE PERFORMANCE VESTING AGREEMENT.
The parties hereto agree that, by and upon execution of this Agreement,
Executive shall as of the date hereof be a party to the Performance Vesting
Agreement and shall for all purposes be considered an Executive thereunder,
and that for all purposes ______ of the Common Units purchased by Executive
under the Executive Agreement shall be considered "MANAGEMENT SECURITIES" and
"PLEDGED SECURITIES" (of which _____ shall be considered "CLIFF MANAGEMENT
SECURITIES" and _____ shall be considered "SLOPE MANAGEMENT SECURITIES")
thereunder (all as defined in the Performance Vesting Agreement), and
Executive shall be entitled to all the rights and benefits and subject to all
the duties and obligations of an Executive and a holder of Management
Securities and Pledged Securities thereunder, as fully as if Executive were
an original signatory thereto in such capacities.
5. RESTRICTIVE LEGENDS. In addition to the legends required by
Section 6 of the Securityholders Agreement and Section 8(b) of the
Performance Vesting Agreement, each certificate or instrument (if any)
evidencing the Purchased Units (or any Company securities issued in exchange
for or otherwise in respect of such Purchased Units) shall, until such time
as such securities are no longer subject to the provisions of the
Securityholders Agreement or the Performance Vesting Agreement in accordance
with the provisions thereof, be stamped or otherwise imprinted with a legend
in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE BECAME SUBJECT TO THE
AFOREMENTIONED SECURITYHOLDERS AGREEMENT AND PERFORMANCE VESTING
AGREEMENT PURSUANT TO A JOINDER AND RIGHTS AGREEMENT DATED AS OF
_____________, BY AND BETWEEN THE ISSUER AND THE INITIAL HOLDER OF
SUCH SECURITIES. A COPY OF SUCH AGREEMENT SHALL BE FURNISHED WITHOUT
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CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
6. CONTINUING EFFECT. Pursuant to the express terms of the LLC
Agreement, Securityholders Agreement, Registration Agreement, and Performance
Vesting Agreement, this Agreement shall not constitute an amendment or waiver
of any provision of the LLC Agreement, of any provision of the
Securityholders Agreement, of any provision of the Registration Agreement, or
of any provision of the Performance Vesting Agreement, all of which shall
continue and remain in full force and effect in accordance with their terms.
7. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect the validity, legality or enforceability of any other
provision of this Agreement in such jurisdiction or affect the validity,
legality or enforceability of any provision in any other jurisdiction, but
this Agreement shall be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been
contained herein.
8. CONSENT TO AMENDMENTS. The provisions of this Agreement may
be amended, modified, or waived only with the prior written consent of the
Company and Executive; PROVIDED that no such amendment, modification, waiver
shall in any way be construed to constitute an amendment, modification, or
waiver of the LLC Agreement, the Securityholders Agreement, the Registration
Agreement, the Performance Vesting Agreement, or any other agreement (in each
case, including without limitation with respect to Executive's being a party
to such agreements and the rights and obligations of Executive as a party to
such agreements), which agreements may only be amended, modified, or waived
in accordance with the provisions thereof.
9. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
10. CHOICE OF LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
STATUTES, RULES, PROVISIONS, OR DECISIONAL LAW (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. IN FURTHERANCE OF
THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW STATUTES, RULES, PROVISIONS,
OR DECISIONAL LAW (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION), SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS
AGREEMENT, EVEN THOUGH UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF
LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY
AND OTHERWISE APPLY.
11. JURISDICTION; SERVICE OF PROCESS. THE PARTIES ACKNOWLEDGE
AND AGREE THAT ANY ACTIONS OR PROCEEDINGS, WHETHER AT LAW OR IN EQUITY,
SEEKING TO ENFORCE OR TO ENJOIN THE
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ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE LLC AGREEMENT, THE
SECURITYHOLDERS AGREEMENT, THE REGISTRATION AGREEMENT, OR THE PERFORMANCE
VESTING AGREEMENT, OR BASED ON ANY RIGHT ARISING OUT OF THIS AGREEMENT OR THE
LLC AGREEMENT, THE SECURITYHOLDERS AGREEMENT, THE REGISTRATION AGREEMENT, OR
THE PERFORMANCE VESTING AGREEMENT SHALL BE BROUGHT, TRIED AND LITIGATED
AGAINST ANY OF THE PARTIES IN THE COURTS OF THE STATE OF COLORADO, OR, IF IT
HAS OR CAN ACQUIRE JURISDICTION, IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO, AND EACH OF THE PARTIES HEREBY CONSENTS TO THE
JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS) IN ANY
SUCH ACTION OR PROCEEDING AND WAIVES ANY AND ALL POSSIBLE OBJECTIONS TO VENUE
LAID THEREIN, INCLUDING WITHOUT LIMITATION FORUM NON CONVENIENS. PROCESS IN
ANY ACTION OR PROCEEDING REFERRED TO IN THE PRECEDING SENTENCE MAY BE SERVED
ON ANY PARTY ANYWHERE IN THE WORLD BY PREPAID FEDERAL EXPRESS, DHL OR OTHER
INTERNATIONAL AIR COURIER TO THE EXECUTIVE AT THE LAST KNOWN ADDRESS PROVIDED
TO THE COMPANY IN WRITING, TO THE COMPANY AT THE ADDRESS SET FORTH IN SECTION
9(m) OF THE EXECUTIVE AGREEMENT OR SUCH OTHER ADDRESS PROVIDED TO EXECUTIVE
IN WRITING, AND TO THE LAST KNOWN ADDRESS OF ALL OTHER ADDRESSEES.
12. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by
the Company and the Executive and their respective successors and assigns,
whether so expressed or not.
13. DESCRIPTIVE HEADINGS; INTERPRETATION; NO STRICT CONSTRUCTION.
The descriptive headings of this Agreement are inserted for convenience only
and do not constitute a substantive part of this Agreement. Whenever
required by the context, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular forms of
nouns, pronouns, and verbs shall include the plural and vice versa. Except
as otherwise expressly provided herein, reference to any agreement, document,
or instrument means such agreement, document, or instrument as amended or
otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof. The use of the words "include" or "including" in
this Agreement shall be by way of example rather than by limitation. The use
of the words "or," "either" or "any" shall not be exclusive. The parties
hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the
parties hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
14. DELIVERY BY FACSIMILE. This Agreement, the agreements
referred to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of
a facsimile machine, shall be treated in all manner and respects as an
original agreement or instrument and shall be considered to have the same
binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto or to any such
agreement or instrument, each other party hereto or thereto shall reexecute
original forms thereof and deliver them to all other parties. No party
hereto or to any such agreement or instrument shall raise the use of a
facsimile machine to deliver a signature or the fact that any signature or
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agreement or instrument was transmitted or communicated through the use of a
facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
COMPLETEL LLC
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EXECUTIVE
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(Signature Page to Joinder and Rights Agreement)
