REPURCHASE AND RESTRICTION AGREEMENT
THIS REPURCHASE AND RESTRICTION AGREEMENT (this "AGREEMENT") is entered
into as of this 27th day of November, 2000, by and between CompleTel LLC, a
Delaware, USA limited liability company ("LLC"), and Xxxxxx Xxxxx ("YOU").
RECITALS
A. You hold the number of unvested time-vesting membership units of
LLC ("UNITS") shown on EXHIBIT A.
B. You wish to have your Units repurchased (the "REPURCHASE") for
ordinary shares of CompleTel Europe N.V. ("Europe NV") held by LLC ("NV
SHARES"), and LLC is willing to repurchase the Units from you on the terms and
conditions of this Agreement.
AGREEMENT
NOW THEREFORE, you and LLC agree as follows:
1. REPURCHASE OF UNITS FOR NV SHARES.
(a) Subject to the conditions in Section 6, in the
Repurchase LLC will repurchase your Units in consideration for the number of NV
Shares shown on EXHIBIT A.
(b) You and LLC agree that the total number of Units
repurchased from you and the total number of NV Shares distributed to you in the
Repurchase have an equal value.
2. YOUR REPRESENTATIONS AND WARRANTIES TO LLC. You acknowledge,
represent, warrant and agree that:
(a) The NV Shares you will receive have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
other applicable securities law. You may not offer for sale, sell, pledge
(except as required under Section 3(b)) or otherwise transfer your NV Shares,
under an effective registration statement under the Securities Act or an
exemption from registration.
(b) You are acquiring the NV Shares for investment and will
not:
(i) offer for sale, sell or otherwise transfer any
NV Shares, except (A) under an effective registration statement under
the Securities Act, or (B) under an exemption from the registration
requirements of the Securities Act as confirmed in an opinion of counsel
satisfactory to Europe NV; or
(ii) engage in any hedging transaction with respect
to any NV Shares, except in compliance with the Securities Act.
If you propose any resale or other transfer (except under an effective
registration statement under the Securities Act), you will provide Europe NV
with an opinion of counsel satisfactory to Europe NV that the proposed
transaction is exempt from the registration requirements of the Securities Act.
Europe NV may require you and your transferee to provide satisfactory investment
representations.
(e) You understand that the NV Shares are "restricted
securities" under US securities laws because they are being acquired from LLC in
a non-public transaction. You understand that under applicable laws and
regulations, the NV Shares may be resold without registration under the
Securities Act only in limited circumstances. You represent that you are
familiar with Rule 144 under the Securities Act, as currently in effect, and
understand the resale limitations imposed by Rule 144 and by the Securities Act.
(f) You are not an underwriter of, or dealer in, the NV
Shares, and are not participating in any distribution of the NV Shares, either
directly or through any affiliate.
(g) You own the Units LLC is repurchasing from you in the
Repurchase as shown on EXHIBIT A, and when you contribute them, the Units will
be free from any liens or other adverse claims.
(h) The vesting schedule of the Units will not be
accelerated by the Repurchase. To preserve LLC's rights under the original
vesting arrangement, you agree to the Transfer Restrictions (defined in Section
3) and the Call Option (defined in Section 4).
(i) LLC and others will rely upon the truth and accuracy of
all of your statements in this Agreement. If any of your statements is no longer
accurate, you will promptly notify LLC of the inaccuracy.
3. TRANSFER RESTRICTIONS.
(a) You agree that you will not sell, pledge or otherwise
transfer any interest in any Restricted Shares (a "TRANSFER"), except under the
call provisions of Section 4 or under applicable laws of descent and
distribution (the "TRANSFER RESTRICTIONS").
(b) In this Agreement, the term "RESTRICTED SHARES" on any
date refers to the portion of NV Shares you receive in consideration for Units
that would not yet be time-vested on that date. The number of your NV Shares
that are Restricted Shares, and therefore subject to the Transfer Restrictions
and to the Call Option (as defined in Section 4), will decrease over time as
follows:
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----------------------- ------------------------- -------------------------
Number of Number of
Restricted Shares at Restricted Shares at
DATE $0.001044 Call Price $2.155532 Call Price
----------------------- ------------------------- -------------------------
Closing Date 40,518 40,518
----------------------- ------------------------- -------------------------
December 31, 2000 23,528 23,528
----------------------- ------------------------- -------------------------
December 31, 2001 6,988 6,988
----------------------- ------------------------- -------------------------
June 23, 2002 0 0
----------------------- ------------------------- -------------------------
Each of the dates in this schedule, except the Closing Date, is referred to as a
"LAPSE DATE." On each Lapse Date, an equal number of Restricted Shares at each
Call Price will cease to be Restricted Shares. No Transfer Restrictions on any
of your NV Shares will lapse after a Call Event (defined in Section 4(a)) has
occurred.
(c) PLEDGE. You agree to execute the deed of pledge ("DEED
OF PLEDGE"), attached to this Agreement as EXHIBIT B, pledging certain of your
Restricted Shares, as security for monetary damages provided for in Section 5
below.
(d) CANCELLATION OF PLEDGE. LLC agrees that, after each
Lapse Date, it will cause the pledge of your NV Shares that are no longer
Restricted Shares to be cancelled.
4. CALL OPTION.
(a) You grant LLC the option to purchase any or all of your
Restricted Shares (the "CALL OPTION") if you cease to be employed by Europe NV
or its subsidiaries, voluntarily or involuntarily, with or without cause, for
any reason or for no reason (a "CALL EVENT").
(b) You agree that the call price for 40,518 of your
Restricted Shares purchased under this Section 4 will be $0.001044 per share and
the call price for your remaining 40,518 Restricted Shares purchased under this
Section 4 will be $2.155532 per share (each, a "CALL PRICE"). If a Call Event
occurs, LLC will repurchase an equal number of your Restricted Shares at each
Call Price.
(c) When a Call Event occurs, LLC must deliver to you the
"CALL NOTICE" attached to this Agreement as EXHIBIT C, notifying you of the
exercise of its Call Option and indicating the number of Restricted Shares LLC
will purchase and the total Call Price. LLC agrees to pay the purchase price
within ten business days after the date of the Call Notice.
(d) You agree that as security for the Call Option, LLC will
have custody of the share certificates issued for your Restricted Shares, and
you will sign and deliver the letter attached to this Agreement as EXHIBIT D,
instructing Europe NV's registrar to deliver those certificates to LLC.
(e) You agree to execute in blank the stock powers attached
to this Agreement as EXHIBIT E ("STOCK POWERS"), as requested by LLC. You
understand and agree that when LLC
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has paid you the total Call Price, it will use the Stock Powers to change the
ownership of the repurchased Restricted Shares in its custody.
(f) LLC agrees that, after each Lapse Date, it will return
to you or your designated agent the NV Share certificates on which the Transfer
Restrictions have lapsed, together with the corresponding Stock Power.
5. PENALTIES UPON TRANSFER. You agree that any Transfer in
violation of Section 3 will be a material breach of this Agreement entitling LLC
to monetary damages equal to the difference between the Call Price and the
greater of:
(a) the price or value you received, directly or indirectly,
on Transfer of the Restricted Shares; or
(b) the closing price of Europe NV's ordinary shares on the
Nasdaq National Market on the date of the Transfer.
6. CONDITIONS TO CLOSING. LLC will not be obligated to complete the
Repurchase or deliver any NV Shares under Section 7(b) of this Agreement unless
the following conditions are satisfied:
(a) Your representations and warranties in Section 2 are
true and correct on the Closing Date.
(b) You have delivered an executed counterpart of this
Agreement, an executed Deed of Pledge and executed Stock Powers to LLC.
7. ACTIONS ON CLOSING DATE. The closing of the Repurchase will
occur on the date you have satisfied all of the closing conditions (the "Closing
Date"). On the Closing Date:
(a) You will deliver to LLC all of the Units shown on
EXHIBIT A;
(b) LLC will cause the number of NV Shares shown on
EXHIBIT A to be delivered to you within seven business days of the Closing Date.
8. SHARE CERTIFICATE LEGENDS. You understand and agree that the
certificates representing your NV Shares will bear the following legends:
"The shares represented by this certificate are `restricted securities'
as that term is defined in Rule 144 under the Securities Act of 1933
(the `Act'). The shares may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under
the Act or pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of
CompleTel Europe N.V."
"The shares represented by this certificate are subject to additional
restrictions on transfer set forth in a Repurchase and Restriction
Agreement among CompleTel LLC and the
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initial holder of such shares. The shares are also pledged to CompleTel
LLC pursuant to a Deed of Pledge. A copy of such agreement and deed may
be obtained by the holder hereof at the issuer's principal place of
business without charge."
After each Lapse Date, LLC or its agent will cause the above legend to be
removed from the certificates representing any shares that cease to be
Restricted Shares.
9. FURTHER ACTIONS. You and each other party to this Agreement
agree to execute and deliver any further documents and writings, and to
undertake and perform any further acts that may be necessary to give effect to
the terms and provisions of this Agreement.
10. SEVERABILITY. The finding by a court of competent jurisdiction
or governmental body that any term or provision of this Agreement is
unenforceable or otherwise void will not affect the effectiveness or
enforceability of any of the other terms of this Agreement.
11. BINDING EFFECT. This Agreement is binding upon, and will inure
to the benefit of, the parties, and their respective heirs, successors, and
assigns.
12. HEADINGS. All Section headings are intended solely for
convenience of reference and will not control the meaning or interpretation of
any of the provisions of this Agreement.
13. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed by facsimile and/or in one or more counterparts, each of which will be
an original and, when taken together with other signed counterparts, will
constitute one Agreement.
14. CONTROLLING LAW. The terms and provisions of this Agreement will
be governed by and construed in accordance with the laws of the State of
Colorado, United States of America.
15. JURISDICTION; SERVICE OF PROCESS. Any actions or proceedings,
whether at law or in equity, seeking to enforce or to enjoin the enforcement of
any provision of this Agreement, or based on any right arising out of this
Agreement shall be brought, tried and litigated against any of the parties in
the courts of the State of Colorado, or, if it has or can acquire jurisdiction,
in the United States District Court for the District of Colorado. You and each
of the other parties hereby consent to the jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and waive any
and all possible objections to venue laid therein, including without limitation
FORUM NON CONVENIENS. Process in any action or proceeding referred to in the
preceding sentence may be served on you or any other party anywhere in the world
by prepaid Federal Express, DHL or other international air courier to you at the
address reflected on NV's share register and to LLC at its principal office
address.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have signed this Agreement as of the
date first written above.
COMPLETEL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxx Xxxxx
-----------------------------------------------
Xxxxxx Xxxxx
EXHIBIT A
SCHEDULE OF UNITS AND NV SHARES
NAME OF NUMBER OF UN-TIME- NV SHARES NUMBER OF
MEMBER VESTED UNITS PER UNIT RESTRICTED NV SHARES
------ ------------ -------- --------------------
Xxxxxx Xxxxx 84.59 958 81,036
EXHIBIT B
DEED OF PLEDGE
Please see attached.
EXHIBIT C
CALL NOTICE
Name
Street Address
City, State Zip Code
Dear_________:
NOTICE
CompleTel LLC ("LLC") intends to exercise the Call Option you granted to it in
the Repurchase and Restriction Agreement dated as of November 27, 2000 among you
and LLC (the "RESTRICTION AGREEMENT"). Capitalized terms used in this letter
have the meanings given to them in the Restriction Agreement.
LLC intends to purchase ______ of your Restricted Shares at $0.001044 per share
and ______ of your Restricted Shares at $2.155532 per share, for a total
purchase price of $ _______. A check representing the purchase price is enclosed
with this Notice.
COMPLETEL LLC
By:
-------------------------------------
EXHIBIT D
REGISTRAR LETTER
Please see attached.
EXHIBIT E
STOCK POWERS
Please see attached.
