Exhibit 10.14
FIRST AMENDED AND RESTATED
PERFORMANCE VESTING AGREEMENT
THIS FIRST AMENDED AND RESTATED PERFORMANCE VESTING AGREEMENT
(this "AGREEMENT") is made as of January 28, 1999, by and between CompleTel LLC
(formerly known as CableTel Europe LLC), a Delaware limited liability company
(the "COMPANY"), Madison Dearborn Capital Partners II, L.P. ("MDCP"), XxXxxxxx
Holdings Limited Partnership ("XXXXXXXX HOLDINGS"), Xxxxx X. Xxxxx ("XXXXX"),
Xxxxx X. Xxxxxxx ("XXXXXXX"), Xxxxxx X. Xxxx ("XXXX"), Xxxx X. Xxxxx ("XXXXX"),
Dovey Company LLC ("DOVEY LLC"), Xxxxxxx X. Xxxxxxx ("PEARSON"), Xxxxxxx X.
Xxxxxxxxx ("XXXXXXXXX"), Xxxxx X. Xxxxx ("XXXXX"), and the other Persons listed
on the signature pages hereto. MDCP, XxXxxxxx Holdings, Xxxxx, Holland, Laub,
and Xxxxx are referred to herein collectively as the "INVESTORS" and
individually as an "INVESTOR." Each of the Investors, Dovey LLC, Pearson,
Clevenger, and Lacey are referred to herein collectively as the "PURCHASERS" and
individually as a "PURCHASER." Pearson, Clevenger, Lacey, and each of the other
Persons listed on the attached SCHEDULE OF PERFORMANCE VESTING UNITS are
referred to herein collectively as the "EXECUTIVES" and individually as an
"EXECUTIVE." Capitalized terms used but not otherwise defined herein have the
meanings ascribed to such terms in Section 1 hereof.
As of May 18, 1998, the Company and MDCP, Xxxxxxxx X. XxXxxxxx
("XXXXXXXX"), Xxxxx X. Xxxxx ("DOVEY"), Pearson, and Xxxxxxxxx entered into a
performance vesting agreement (the "PRIOR AGREEMENT"). The parties hereto desire
that, effective as of the date hereof, the Prior Agreement shall be amended and
restated in its entirety as set forth below.
Certain of the securities owned by the Executives on the date
hereof are subject only to time vesting and others are subject to both time
vesting and performance vesting. Section 2 of the Executive Securities
Agreements each entered into between the Company and one of the Executives (the
"EXECUTIVE SECURITIES AGREEMENTS") contains the provisions governing the time
vesting of both groups of securities. This Performance Vesting Agreement
contains the provisions governing the performance vesting of the second group of
securities.
For purposes of this Agreement, the term "MANAGEMENT
SECURITIES" refers to the securities which are subject to performance vesting
under this Agreement, as set forth on the SCHEDULE OF PERFORMANCE VESTING
SECURITIES attached hereto, whether or not they have performance vested. Those
Management Securities which have performance vested pursuant to this Agreement
are referred to herein as "VESTED MANAGEMENT SECURITIES," whether or not they
have time vested under the Executive Securities Agreements. Those outstanding
Management Securities which have not yet performance vested pursuant to this
Agreement are referred to herein as "UNVESTED MANAGEMENT SECURITIES," whether or
not they have time vested under the Executive Securities Agreements.
Of the currently outstanding Management Securities,
approximately 66.67% are subject to the performance vesting provisions set forth
in Section 3 below (the "SLOPE MANAGEMENT SECURITIES"), and approximately 33.33%
are subject to the performance vesting provisions set forth
in Section 4 below (the "CLIFF MANAGEMENT SECURITIES"). Each time MDCP sells or
transfers all or a portion of its equity in the Company (with certain exceptions
and qualifications set forth in Section 3(b) below), a portion of the Slope
Management Securities will performance vest and/or be forfeited, depending on
the price received or deemed received by MDCP in the transaction. The Cliff
Management Securities, on the other hand, will vest as a block (a) upon any such
sale or transfer of MDCP's equity if the price received or deemed received by
MDCP equals or exceeds certain amounts specified in Section 4 below, and (b)
upon the closing of a Qualified Public Offering.
Each time Management Securities vest, the same number of
Common Units owned or deemed owned by the Purchasers will be forfeited (pro rata
among the holders thereof), and each time Management Securities are forfeited,
the same number of Common Units owned or deemed owned by the Purchasers will no
longer be deemed forfeitable (pro rata among the holders thereof).
With respect to the relationship between time vesting and
performance vesting of Executive Securities, Section 2(e)(ii) of the Executive
Securities Agreements provides that of the securities subject to both
performance vesting and time vesting (i.e., the Management Securities), those
which have performance vested pursuant to this Agreement will time vest before
those which have not yet performance vested pursuant to this Agreement. This
Agreement (as well as Section 2(e)(iii) of the Executive Securities Agreements)
provides for the analogous case: Management Securities subject to this Agreement
which have time vested pursuant to the Executive Securities Agreements will
performance vest before any such Management Securities which have not yet time
vested.
NOW, THEREFORE, in consideration of the mutual promises made
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement shall
have the respective meanings for purposes of this Agreement set forth below. All
references which are not otherwise identified to the preamble or sections refer
to the preamble or such sections of this Agreement.
"AGREEMENT" is defined in the preamble.
"XXXXX" has the meaning set forth with respect thereto in the
preamble.
"APPLICABLE VESTING PERCENTAGE" is defined in Section 3(d).
"CLASS A SENIOR UNITS" means the Class A Senior Units of the
Company, having the rights and preferences set forth in the LLC Agreement.
"CLASS B SENIOR UNITS" means the Class B Senior Units of the
Company, having the rights and preferences set forth in the LLC Agreement.
"CLASS B SENIOR VALUE" has the meaning ascribed to such term
in the LLC Agreement.
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"CLASS B SENIOR YIELD" has the meaning ascribed to such term
in the LLC Agreement.
"CLASS C SENIOR UNITS" means the Class C Senior Units of the
Company, having the rights and preferences set forth in the LLC Agreement.
"XXXXXXXXX" is defined in the preamble.
"CLIFF MANAGEMENT SECURITIES" is defined in the preamble.
"COMMON UNITS" means the Common Units of the Company, having
the rights and preferences set forth in the LLC Agreement.
"XXXXXXXX" is defined in the preamble.
"XXXXXXXX HOLDINGS" is defined in the preamble.
"DOVEY" is defined in the preamble.
"DOVEY LLC" is defined in the preamble.
"EQUITY PURCHASE AGREEMENT" means the equity purchase
agreement dated the date of the Prior Agreement (and amended and restated as of
the date hereof), by and among the Company and the Purchasers, as amended from
time to time in accordance with its terms.
"EXECUTIVE" and "EXECUTIVES" are defined in the preamble.
"EXECUTIVE SECURITIES" means the Executive Securities as
defined under the Executive Securities Agreements.
"EXECUTIVE SECURITIES AGREEMENTS" has the meaning set forth in
the preamble and includes any Executive Securities Agreements entered into by
the Company with its Key Employees after the date hereof.
"EXPIRATION DATE" is defined in Section 5.
"FAIR MARKET VALUE" is defined in Section 8(a).
"FORFEITABLE PURCHASER SECURITIES" means 7,500/82,500 (I.E.,
1/11th) of the Purchaser Securities which are derived from the Preferred Units
held by each Purchaser on the date of this amendment and restatement (which
Preferred Units and their holders are set forth on the "Schedule of Purchasers"
attached to the Equity Purchase Agreement as in effect on the date of this
amendment and restatement), subject to the following qualifications:
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(i) If any Forfeitable Purchaser Securities are actually
forfeited pursuant to the provisions hereof, such forfeited Forfeitable
Purchaser Securities shall by such forfeiture cease to be Forfeitable
Purchaser Securities.
(ii) Contemporaneously with any MDCP Sale, the number of
Forfeitable Purchaser Securities held by each holder thereof that would
be forfeited pursuant to Section 3 in connection with such MDCP Sale if
the Return Multiple for such MDCP Sale were 10 shall (to the extent not
actually forfeited in connection with such MDCP Sale pursuant to the
provisions hereof) no longer be subject to forfeiture hereunder and
shall forever cease to be Forfeitable Purchaser Securities.
(iii) Upon the Expiration Date, all Forfeitable Purchaser
Securities shall (to the extent not actually forfeited in connection
with a deemed MDCP Sale on the Expiration Date pursuant to the
provisions hereof) no longer be subject to forfeiture hereunder and
shall forever cease to be Forfeitable Purchaser Securities.
(iv) A pro-rata portion of each holder's Forfeitable Purchaser
Securities shall forever cease to be Forfeitable Purchaser Securities
if (A) any Unvested Management Securities are repurchased pursuant to
the provisions of an Executive Securities Agreement or (B) any
authorized but unissued Unvested Management Securities are canceled
pursuant to Section 2.2(c)(iii)(II) of the LLC Agreement. The number of
each holder's Forfeitable Purchaser Securities which shall cease to be
Forfeitable Purchaser Securities pursuant to this subparagraph (iv)
shall be determined by multiplying
(x) the number of Unvested Management Securities so
repurchased or canceled,
TIMES
(y) a fraction, the numerator of which is the number of
Forfeitable Purchaser Securities held by such holder, and the
denominator of which is the aggregate number of Forfeitable
Purchaser Securities held by all holders.
Any reference herein to a "majority of the Forfeitable Purchaser
Securities" or the "number of Forfeitable Purchaser Securities" for
purposes of comparison shall refer, with respect to any particular
Forfeitable Purchaser Securities, to the number of Common Units (or
equivalent common equity securities of the Company) then represented by
such Forfeitable Purchaser Securities (on a fully diluted,
as-if-converted basis).
"HOLLAND" has the meaning set forth with respect thereto in
the preamble.
"XXXXX" has the meaning set forth with respect thereto in the
preamble.
"INVESTOR" and "INVESTORS" are defined in the preamble.
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"INVESTOR SECURITIES" has the meaning set forth in the Equity
Purchase Agreement. Any reference herein to a "majority of the Investor
Securities" or the "number of Investor Securities" for purposes of comparison
shall refer, with respect to any particular Investor Securities, to the number
of Common Units (or equivalent common equity securities of the Company) then
represented by such Investor Securities (on a fully diluted, as-if-converted
basis).
"KEY EMPLOYEE" means any management or other key employee of
the Company or any of its Subsidiaries.
"LACEY" has the meaning set forth with respect thereto in the
preamble.
"XXXX" has the meaning set forth with respect thereto in the
preamble.
"LIQUIDATION VALUE" has the meaning ascribed thereto in the
LLC Agreement.
"LLC AGREEMENT" means the limited liability company agreement
governing the affairs of the Company, as amended from time to time in accordance
with its terms.
"MANAGEMENT SECURITIES" is defined in the preamble.
"MDCP" is defined in the preamble.
"MDCP FORFEITABLE SECURITIES" means the Forfeitable Purchaser
Securities originally held by MDCP (and such MDCP Forfeitable Securities shall
cease to be MDCP Forfeitable Securities when they have ceased to be Forfeitable
Purchaser Securities in accordance with the terms of this Agreement).
"MDCP SALE" is defined in Section 3(b).
"PEARSON" is defined in the preamble.
"PERCENTAGE OF MDCP SECURITIES SOLD" is defined in
Section 3(c).
"PERFORMANCE VESTING PERIOD" is defined in Section 3(a).
"PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PLEDGED SECURITIES" has the meaning set forth with respect
thereto in Section 7(a).
"PREFERRED UNITS" means the Preferred Units of the Company,
having the rights and preferences set forth with respect thereto in the LLC
Agreement.
"PREFERRED YIELD" has the meaning ascribed to such term in the
LLC Agreement.
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"PUBLIC OFFERING" means any underwritten sale of the Company's
common stock pursuant to an effective registration statement under the
Securities Act filed with the Securities and Exchange Commission on Form S-1 (or
a successor form adopted by the Securities and Exchange Commission); provided
that the following shall not be considered a Public Offering: (i) any issuance
of common stock as consideration for a merger or acquisition, and (ii) any
issuance of common stock or rights to acquire common stock to existing
securityholders or to employees of the Company or its Subsidiaries on Form S-4
or Form S-8 (or a successor form adopted by the Securities and Exchange
Commission) or otherwise.
"PURCHASER" and "PURCHASERS" are defined in the preamble.
"PURCHASER SECURITIES" has the meaning set forth in the Equity
Purchase Agreement. Any reference herein to a "majority of the Purchaser
Securities" or the "number of Purchaser Securities" for purposes of comparison
shall refer, with respect to any particular Purchaser Securities, to the number
of Common Units (or equivalent common equity securities of the Company) then
represented by such Purchaser Securities (on a fully diluted, as-if-converted
basis).
"QUALIFIED PUBLIC OFFERING" means a Public Offering where BOTH
(i) the proceeds (net of underwriting discounts and
commissions) received by the Company in exchange for its issuance of
shares of common stock in such Public Offering equal or exceed $60
million, AND
(ii) the price per share of common stock paid to the Company
in such Public Offering equals or exceeds the product of (x) 3.0 TIMES
(y) the quotient of (A) the aggregate capital contributions to the
Company under the Equity Purchase Agreement (including the initial
purchase price and all Subsequent Contributions (as defined in the
Equity Purchase Agreement)) made on or prior to the date of such Public
Offering with respect to all Purchaser Securities then outstanding,
DIVIDED BY (B) the number of shares of the Company's common stock
represented by all Purchaser Securities (on a fully diluted,
as-if-converted basis) outstanding immediately prior to the
consummation of such Public Offering.
"RETURN MULTIPLE" is defined in Section 3(e).
"SALE OF THE COMPANY" means the arm's length sale of the
Company to a third party or group of third parties acting in concert, in
connection with which such party or parties acquire (i) equity securities of the
Company possessing the voting power under normal circumstances to control the
Company, or (ii) all or substantially all of the Company's assets determined on
a consolidated basis (in either case, whether such sale takes the form of a
merger, consolidation, sale or transfer of the Company's equity securities, or
sale or transfer of the Company's consolidated assets).
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any similar federal law then in force.
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"SECURITYHOLDERS AGREEMENT" means the securityholders
agreement dated the date of the Prior Agreement (and amended and restated as of
the date hereof), by and among the Company and certain of its securityholders,
as amended from time to time in accordance with its terms.
"SENIOR UNITS" means the Company's Class A Senior Units, Class
B Senior Units, and Class C Senior Units.
"SLOPE MANAGEMENT SECURITIES" is defined in the preamble.
"SUBSIDIARY" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director, manager or general
partner of such limited liability company, partnership, association or other
business entity. For purposes of this Agreement, if the context does not
otherwise indicate in respect of which Person the term "SUBSIDIARY" is used, the
term "SUBSIDIARY" shall refer to any Subsidiary of the Company.
"UNVESTED MANAGEMENT SECURITIES" is defined in the preamble.
"UNVESTED CLIFF MANAGEMENT SECURITIES" means Unvested Management Securities
which are Cliff Management Securities. "UNVESTED SLOPE MANAGEMENT SECURITIES"
means Unvested Management Securities which are Slope Management Securities.
"VALUED ASSETS" is defined in Section 8(a)(i).
"VESTED MANAGEMENT SECURITIES" is defined in the preamble.
"VESTED CLIFF MANAGEMENT SECURITIES" means Vested Management Securities which
are Cliff Management Securities. "VESTED SLOPE MANAGEMENT SECURITIES" means
Vested Management Securities which are Slope Management Securities.
"VESTING EVENT" is defined in Section 8(a).
2. SECURITIES SUBJECT TO PERFORMANCE VESTING. As to each
Executive, the number of such Executive's Executive Securities as are designated
Management Securities opposite such Executive's name on the attached SCHEDULE OF
PERFORMANCE VESTING SECURITIES shall be subject to performance vesting pursuant
to the terms and conditions set forth in this Agreement. If any Key Employee of
the Company and its Subsidiaries is issued any Common Units pursuant to Section
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2.1(c) of the LLC Agreement, such Key Employee shall be required to enter into
an Executive Securities Agreement in a form approved by the Company and the
number of such Common Units as are specified in such Executive Securities
Agreement as constituting "Performance-Vesting Securities" shall be deemed
Management Securities subject to performance vesting pursuant to the terms and
conditions set forth in this Agreement, and the Company shall revise and update
the attached SCHEDULE OF PERFORMANCE VESTING SECURITIES in order to reflect such
additional Management Securities.
3. PERFORMANCE VESTING OF SLOPE MANAGEMENT SECURITIES.
(a) Contemporaneously with any MDCP Sale occurring during the
seven-year period commencing on the date of the Prior Agreement (the
"PERFORMANCE VESTING PERIOD"):
(i) There shall performance vest a number (if any) of the Unvested
Slope Management Securities held by each holder thereof equal to the
product of
(x) the number of Unvested Slope Management Securities held by
such holder immediately prior to such MDCP Sale,
MULTIPLIED BY
(y) the Percentage of MDCP Securities Sold in such MDCP Sale,
MULTIPLIED AGAIN by
(z) the Applicable Vesting Percentage for such MDCP Sale.
(ii) There shall be forfeited a number of Unvested Slope Management
Securities held by each holder thereof equal to the difference (if any)
between
(x) the maximum number of such holder's Unvested Slope
Management Securities that could performance vest under
Section 3(a)(i) in connection with such MDCP Sale (i.e., the
number that would performance vest if the Return Multiple for
such MDCP Sale were 10),
MINUS
(y) the number of such holder's Unvested Slope Management
Securities that will actually performance vest under Section
3(a)(i) in connection with such MDCP Sale,
and such forfeiture will be automatic, effective without further action
by the Company or the holder of such Unvested Slope Management
Securities, and such holder shall thereafter no longer exercise nor
have the right to exercise any of its rights with respect to such
forfeited securities.
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(iii) There shall also be forfeited a number of Forfeitable Purchaser
Securities held by each holder thereof equal to the product of
(x) the aggregate number of Unvested Slope Management
Securities held by all holders thereof that will performance
vest in connection with such MDCP Sale
MULTIPLIED BY
(y) a fraction, the numerator of which is the number of
Forfeitable Purchaser Securities held by such holder
immediately prior to such MDCP Sale, and the denominator of
which is the aggregate number of Forfeitable Purchaser
Securities outstanding immediately prior to such MDCP Sale,
and such forfeiture will also be automatic, effective without further
action by the Company or the holder of such Forfeitable Purchaser
Securities, and such holder shall thereafter no longer exercise nor
have the right to exercise any of its rights with respect to such
forfeited securities.
(iv) A number of Forfeitable Purchaser Securities held by each holder
shall not be forfeited and shall no longer be deemed Forfeitable
Purchaser Securities subject to forfeiture after such MDCP Sale, equal
to the product of:
(x) the aggregate number of Unvested Slope Management
Securities (if any) held by all holders thereof that will be
forfeited in connection with such MDCP Sale
MULTIPLIED BY
(y) a fraction, the numerator of which is the number of
Forfeitable Purchaser Securities held by such holder
immediately prior to such MDCP Sale, and the denominator of
which is the aggregate number of Forfeitable Purchaser
Securities outstanding immediately prior to such MDCP Sale.
(b) As used herein, "MDCP SALE" means any sale or transfer of
Purchaser Securities by MDCP to any Person (including a transfer by way of
merger or consolidation, a transfer to the Company in connection with any
redemption or liquidation of such securities, or a distribution-in-kind of such
securities to MDCP's partners), OTHER THAN:
(i) any conversion of Preferred Units, or
(ii) any recapitalization or other reorganization (including, without
limitation, in connection with any conversion of the Company into a
corporation or other entity form) in which MDCP's ownership of the
Company's equity securities immediately after such transaction is
substantially identical to MDCP's ownership of the Company's equity
securities immediately prior to such transaction);
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Notwithstanding the foregoing, any holder of Unvested Management Securities may
elect in a writing delivered within 7 days after the MDCP Sale to the holder or
holders of a majority of the Purchaser Securities then outstanding to ignore any
MDCP Sale in which all or substantially all of the consideration for the
Purchaser Securities transferred by MDCP constitutes publicly or privately
traded securities (other than a Sale of the Company, a liquidation or redemption
of Purchaser Securities by the Company, or a distribution-in-kind of Purchaser
Securities to MDCP's partners), and solely as to each such electing holder such
ignored MDCP Sale shall for purposes hereof (and all calculations hereunder) be
treated as not having been an MDCP Sale.
(c) As used herein, the "PERCENTAGE OF MDCP SECURITIES SOLD"
in any MDCP Sale shall be equal to the quotient of
(x) the number of Purchaser Securities transferred by MDCP in
such MDCP Sale
DIVIDED BY
(y) the number of Purchaser Securities (excluding all
Forfeitable Purchaser Securities other than Forfeitable
Purchaser Securities which were transferred by MDCP in such
MDCP Sale) held by MDCP immediately prior to such MDCP Sale.
(d) For purposes hereof, the "APPLICABLE VESTING PERCENTAGE"
for any MDCP Sale shall be equal to the quotient of (x) the Return Multiple for
such MDCP Sale MINUS 3 (PROVIDED that such difference shall not be less than
zero nor greater than 7), DIVIDED BY (y) 7.
(e) For purposes hereof, the "RETURN MULTIPLE" for any MDCP
Sale shall be equal to the quotient of (x) the sum (without duplication) of (i)
the Fair Market Value of all consideration (including assumed indebtedness)
received by MDCP in such MDCP Sale in exchange for the Purchaser Securities
transferred by MDCP in such MDCP Sale (or, with respect to any MDCP Sale that is
a distribution to MDCP's partners, the Fair Market Value of the Purchaser
Securities so distributed) PLUS (ii) the aggregate dividends or other
distributions made by the Company to MDCP on or prior to the date of such MDCP
Sale in respect of the Purchaser Securities transferred by MDCP in such MDCP
Sale, DIVIDED BY (y) the aggregate capital contributions to the Company pursuant
to the Equity Purchase Agreement (including the initial purchase price and all
Subsequent Contributions (as defined in the Equity Purchase Agreement)) made on
or prior to the date of such MDCP Sale in respect of the Purchaser Securities
transferred by MDCP in such MDCP Sale (as well as in respect of all MDCP
Forfeitable Securities that will be forfeited pursuant to this Agreement in
connection with such MDCP Sale).
4. PERFORMANCE VESTING OF CLIFF MANAGEMENT SECURITIES. All
Cliff Management Securities shall performance vest contemporaneously with the
first to occur of (i) any MDCP Sale occurring during the Performance Vesting
Period where the Return Multiple for such MDCP Sale equals or exceeds 3 or (ii)
any Qualified Public Offering occurring during the Performance Vesting Period.
Contemporaneously with such vesting, there shall be forfeited a number of
Forfeitable Purchaser Securities held by each holder thereof equal to the
product of
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(x) the aggregate number of Unvested Cliff Management Securities held
by all holders thereof that will performance vest under this Section 4
in connection with such MDCP Sale or Qualified Public Offering (as the
case may be)
MULTIPLIED BY
(y) a fraction, the numerator of which is the number of Forfeitable
Purchaser Securities held by such holder immediately prior to such MDCP
Sale or Qualified Public Offering (as the case may be), and the
denominator of which is the aggregate number of Forfeitable Purchaser
Securities outstanding immediately prior to such MDCP Sale or Qualified
Public Offering (as the case may be),
and such forfeiture will be automatic, effective without further action by the
Company or the holder of such Forfeitable Purchaser Securities, and such holder
shall thereafter no longer exercise nor have the right to exercise any of its
rights with respect to such forfeited securities.
5. EXPIRATION OF PERFORMANCE VESTING PERIOD. If any Unvested
Management Securities remain outstanding upon the expiration of the Performance
Vesting Period (the "EXPIRATION DATE"), there shall immediately prior to such
expiration be deemed to have occurred an MDCP Sale in which MDCP sold all
Purchaser Securities held by MDCP on such Expiration Date for a purchase price
equal to the Fair Market Value of such Purchaser Securities. Upon such
Expiration Date, any Unvested Management Securities that do not performance vest
pursuant to Sections 3 or 4 in connection with such hypothetical MDCP Sale shall
without further action by the Company or the holder of such Unvested Management
Securities automatically be deemed forfeited, and such holder shall thereafter
no longer exercise nor have the right to exercise any of its rights with respect
to such forfeited securities.
6. FORFEITURE PROCEDURE.
(a) Upon any forfeiture of any Unvested Management Securities
pursuant to this Agreement, the holder of such forfeited securities shall
promptly submit the certificate or certificates (if any) representing such
forfeited securities to the Company for cancellation. Upon such submission, the
Company shall take all actions necessary to retire such forfeited securities and
to cause such securities to resume the status of authorized and unissued Common
Units (or other equivalent common equity securities of the Company). If the
Management Securities are certificated, the Company shall promptly cancel the
submitted certificate(s) and issue to the holder thereof a certificate
representing the number of securities (if any) which were evidenced by the
submitted certificate(s) but which were not forfeited.
(b) Upon any forfeiture of any Forfeitable Purchaser
Securities pursuant to this Agreement, the holder of such forfeited securities
shall promptly submit the certificate or certificates (if any) representing the
number of such forfeited Forfeitable Purchaser Securities to the Company for
cancellation. Each holder of Forfeitable Purchaser Securities may satisfy its
obligation pursuant to the immediately preceding sentence by tendering
Forfeitable Purchaser Securities constituting Common Units and/or Forfeitable
Purchaser Securities constituting Preferred Units, together
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aggregating the number of such holder's Forfeitable Purchaser Securities that
are forfeited. Upon any such submission, the Company shall take all actions
necessary to retire such forfeited securities and to cause such securities to
resume the status of authorized and unissued Common Units (or other equivalent
common equity securities of the Company) or Preferred Units, as the case may be.
If the Purchaser Securities are certificated, the Company shall promptly cancel
the submitted certificate(s) and issue to the holder thereof a certificate
representing the number of securities (if any) which were evidenced by the
submitted certificate(s) but which were not forfeited. If any holder's
Forfeitable Purchaser Securities constituting Preferred Units are forfeited, the
Company shall in connection with such forfeiture issue to such holder an equal
number of Class B Senior Units (or equivalent non-convertible preferred
securities), and each such Class B Senior Unit issued in connection with such
forfeiture shall be deemed as of the date of such forfeiture to have a Class B
Senior Value and accrued, paid, unpaid, and accumulated Class B Senior Yield
thereon equal to the Liquidation Value and the accrued, paid, unpaid, and
accumulated Preferred Yield thereon, respectively, of the Preferred Units in
exchange for which such Class B Senior Unit was issued.
7. PLEDGE OF UNVESTED MANAGEMENT SECURITIES.
(a) PLEDGE. Each Executive hereby initially pledges to the
Company, and grants to the Company a security interest in, such Executive's
Unvested Management Securities (such Executive's "PLEDGED SECURITIES") as
security for the performance of such Executive's duties and obligations pursuant
to this Agreement.
(b) DELIVERY OF PLEDGED SECURITIES. Upon the execution of this
Agreement, each Executive shall deliver to the Company the certificate(s) (if
any) representing such Executive's Pledged Securities, together with duly
executed forms of assignment in blank sufficient to transfer title thereto to
the Company.
(c) STATUS AS HOLDER. For purposes of determinations and
calculations under this Agreement, each Executive shall be deemed to be the
holder of such Executive's Pledged Securities.
(d) DISTRIBUTIONS, OTHER CERTIFICATES, ETC. If any Executive
becomes entitled to receive or receives any securities or other property with
respect to, in substitution of, or in exchange for any of such Executive's
Pledged Securities (whether as a distribution in connection with any
recapitalization, reorganization or reclassification, a dividend or otherwise)
other than a distribution under Section 3.1(b) of the LLC Agreement with respect
to taxes, or any certificate(s) representing any of such Executive's Pledged
Securities, such Executive shall accept such securities, property, or
certificate(s) on behalf of and for the benefit of the Company as additional
security for such Executive's obligations hereunder and shall promptly deliver
such additional security to the Company together with duly executed forms of
assignment in blank, and such additional security shall be deemed to be part of
such Executive's Pledged Securities.
(e) RELEASE OF PLEDGED SECURITIES UPON PERFORMANCE VESTING.
Upon any of any Executive's Pledged Securities becoming Vested Management
Securities pursuant to this Agreement which are also time vested under Section 2
of such Executive's Executive Securities Agreement, the Company shall deliver to
such Executive the certificate or certificates (if any) representing such
- 12 -
Vested Management Securities (or, if necessary, the Company shall cancel the
certificate or certificates representing such Vested Management Securities,
issue to such Executive a certificate representing the number of Vested
Management Securities represented by such submitted certificate(s), and shall
issue and retain a certificate (issued in such Executive's name) representing
the number of Management Securities which were represented by such submitted
certificate(s) but which were not performance vested and not forfeited), and
such Vested Management Securities shall no longer constitute part of such
Executive's Pledged Securities.
(f) VOTING AGREEMENT AND PROXY. Each holder of Unvested
Management Securities hereby agrees that upon any vote of the Company's voting
securities, such holder will vote all such Unvested Management Securities in the
same proportion as all other voting securities of the Company are voted by the
holders thereof. To insure performance of this voting agreement, each Executive
hereby appoints each member of the Company's Board of Managers who is not also
employed by the Company or any of its direct or indirect Subsidiaries as his
true and lawful proxy and attorney-in fact, with full power of substitution, to
vote all of such Executive's Pledged Securities on all matters to be voted on by
the Company's securityholders in the manner described in the immediately
preceding sentence. These proxies and powers granted by each Executive pursuant
to this Section 7(f) are coupled with an interest, and are given to secure such
Executive's performance of his duties and obligations under this Agreement. Such
proxies and powers shall be irrevocable with respect to each such Pledged
Security (and shall survive the death, disability, incompetency, or bankruptcy
of such Executive) until such time as such Pledged Security becomes a Vested
Performance Security pursuant to the provisions of this Agreement which is also
time vested under Section 2 of such Executive's Executive Securities Agreement
and thereby ceases to be a Pledged Security, at which time such proxy shall be
deemed revoked with respect to such security (but not with respect to any
securities that remain Pledged Securities).
(g) FURTHER ASSURANCES. Each Executive agrees that at any time
and from time to time upon the request of the Company, such Executive shall
execute and deliver such further documents and take such further actions as the
Company may reasonably request in order to effect the purpose and intent of this
Agreement.
8. MISCELLANEOUS PROVISIONS.
(a) DETERMINATIONS OF FAIR MARKET VALUE.
(i) The "FAIR MARKET VALUE" of Purchaser Securities
pursuant to Section 5 above or of the consideration received in
exchange for Purchaser Securities in an MDCP Sale (either, the "VALUED
ASSETS") shall be determined in accordance with this paragraph (a).
(ii) The holders of the Forfeitable Purchaser
Securities then outstanding, on the one hand, and the holders of the
Unvested Management Securities then outstanding, on the other hand,
shall attempt in good faith to agree on the Fair Market Value of the
Valued Assets. Any agreement reached by the holders of a majority of
the Forfeitable Purchaser Securities and the holders of a majority of
the Unvested Management Securities shall be final and binding on all
parties hereto.
- 13 -
(iii) If such Persons are unable to reach such
agreement within a reasonable period of time (but in any event within
60 days), the Fair Market Value of any Valued Assets that are publicly
traded securities shall be the average, over a period of 21 days
consisting of the date of the event which gives rise to the need to
determine Fair Market Value for purposes of this Agreement (a "VESTING
EVENT") and the 20 consecutive business days prior to that date, of the
average of the closing prices of the sales of such securities on the
primary securities exchange on which such securities may at that time
be listed, or, if there have been no sales on such exchange on any day,
the average of the highest bid and lowest asked prices on such exchange
at the end of such day, or, if on any day such securities are not so
listed, the average of the representative bid and asked prices quoted
in the Nasdaq System as of 4:00 P.M., New York time, or, if on any day
such securities are not quoted in the Nasdaq System, the average of the
highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau
Incorporated, or any similar successor organization.
(iv) If such Persons are unable to reach agreement
pursuant to subparagraph (ii) within a reasonable time, and to the
extent any Valued Assets are not publicly traded securities:
(A) The holders of a majority of the
Forfeitable Purchaser Securities then outstanding, on the one hand, and
the holders of a majority of the Unvested Management Securities then
outstanding, on the other hand, shall each, within 10 days thereafter,
choose one investment banker or other appraiser with experience in
valuing assets such as the Valued Assets, and the two investment
bankers/appraisers so selected shall together select a third investment
banker/appraiser similarly qualified.
(B) To the extent the Valued Assets
represent Purchaser Securities, the three investment bankers/appraisers
shall first appraise the fair market value of the Company's equity
(based on the assumption of an orderly, arm's length sale (structured
to produce the highest price to the equity holders of the Company,
whether such structure is a merger, combination, sale of equity
securities, sale of assets, or otherwise) to a willing unaffiliated
buyer (or to a willing affiliated strategic buyer, PROVIDED that the
investment bankers/appraisers shall not consider any premium that such
affiliated strategic buyer would be willing to pay to the extent such
premium is attributable solely to such Person's then current
affiliation with the Company, unless the Company or its equityholders
have received a fully financed, firm commitment offer (with no material
conditions) from such affiliated strategic buyer to purchase a majority
(based on common equity equivalents) of the Company's outstanding
equity at a price that includes such premium, IT BEING UNDERSTOOD,
HOWEVER, that the investment bankers/appraisers shall consider, without
the need for such a firm commitment offer, the premium, if any, that is
attributable to such Person's future expected synergies to be generated
by combining such Person's operations with those of the Company and its
Subsidiaries if such Person were to acquire the Company). The three
investment bankers/appraisers shall then appraise the fair market value
of such non-publicly-traded Purchaser Securities as follows:
- 14 -
1) the fair market value of each
Common Unit (or equivalent common equity security) shall be
equal to the fair market value of the Company's equity DIVIDED
BY the total number of Common Units (or equivalent common
equity securities) outstanding on the date of the Vesting
Event (determined on a fully diluted, as-if-converted basis,
but excluding all Unvested Management Securities);
2) the fair market value of each
Preferred Unit shall be equal to the greater of (x) the
Liquidation Value (as defined in the LLC Agreement) of such
Preferred Unit, together with all accrued but unpaid Preferred
Yield (as defined in the LLC Agreement) thereon, and (y) the
fair market value (determined in accordance with subparagraph
(1) above) of the Common Units (including fractional units)
into which such Preferred Unit is convertible on the date of
the Vesting Event;
3) the fair market value of any
other non-publicly-traded Purchaser Securities shall be the
fair value of such securities, determined on the basis of an
orderly, arm's length sale (structured to produce the highest
price for such securities) to a willing, unaffiliated buyer,
taking into account all relevant factors determinative of
value.
To the extent the Valued Assets represent assets other than
non-publicly-traded securities of the Company, the three investment
bankers/appraisers shall appraise the fair market value of such Valued
Assets (based on the assumption of an orderly, arm's length sale
(structured to produce the highest price for such assets) to a willing
unaffiliated buyer (or to a willing affiliated strategic buyer,
PROVIDED that the investment bankers/appraisers shall not consider any
premium that such affiliated strategic buyer would be willing to pay to
the extent such premium is attributable solely to such Person's
affiliation with the Company, unless the Company or its equityholders
have received a fully financed, firm commitment offer (with no material
conditions other than those which are highly likely to be satisfied)
from such affiliated strategic buyer to purchase such Valued Assets at
a price that includes such premium).
The three investment bankers/appraisers shall, within thirty days of
their retention, provide the written results of such appraisals to the
holders of a majority of the Forfeitable Purchaser Securities then
outstanding and the holders of a majority of the Unvested Management
Securities then outstanding.
(C) The "FAIR MARKET VALUE" of the Valued
Assets other than publicly traded securities shall be the average of
the two appraisals thereof closest to each other, and such amount shall
be final and binding on all parties hereto.
(D) The holders of a majority of the
Forfeitable Purchaser Securities then outstanding, on the one hand, and
the holders of a majority of the Unvested
- 15 -
Management Securities then outstanding, on the other hand, shall each
pay the costs of their own chosen appraiser and 50% of the costs of the
third appraiser.
(b) RESTRICTIVE LEGEND. Each certificate representing Unvested
Management Securities or Forfeitable Purchaser Securities shall bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
FORFEITURE PROVISIONS SET FORTH IN A FIRST AMENDED AND RESTATED
PERFORMANCE VESTING AGREEMENT DATED AS OF JANUARY 28, 1999, BY AND
AMONG THE ISSUER OF SUCH SECURITIES (THE "ISSUER"), THE INITIAL HOLDER
OF THESE SECURITIES, AND CERTAIN OTHER PERSONS LISTED ON THE SIGNATURE
PAGES ATTACHED THERETO, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH
ITS TERMS. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER
HEREOF AT THE ISSUER'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
The legend set forth above shall be removed from the certificates evidencing
Unvested Management Securities or Forfeitable Purchaser Securities when such
securities cease to be Unvested Management Securities or Forfeitable Purchaser
Securities, as applicable, pursuant to the terms hereof.
(c) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(d) COMPLETE AGREEMENT. This Agreement, those documents
expressly referred to herein and other related documents among the parties
hereto of even date herewith and therewith embody the complete agreement and
understanding among the parties hereto and supersede and preempt any prior
understandings, agreements or representations by or among the parties hereto,
written or oral, which may have related to the subject matter hereof in any way
(including, without limitation, the Prior Agreement).
(e) COUNTERPARTS. This Agreement may be executed in separate
counterparts, none of which need contain the signature of more than one party
hereto but each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Any Key Employee of
the Company or its Subsidiaries who is issued Management Securities pursuant to
an Executive Securities Agreement may at any time after the date hereof, with
the written approval of the Company, become a party to this Agreement by
executing a counterpart to this Agreement agreeing to be bound by the provisions
hereof as if such Person were an original signatory hereto (which joinder shall
not constitute an amendment, modification, or waiver hereof).
- 16 -
(f) SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall bind the parties hereto and their respective
successors and assigns and shall inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns, whether so
expressed or not. Notwithstanding the foregoing, no holder of Unvested
Management Securities shall transfer any of such Unvested Management Securities
to any Person, except (i) pursuant to the pledge or forfeiture provisions of
this Agreement, or the repurchase provisions of the Executive Securities
Agreements, or (ii) to the executor of such holder's estate, at which time such
executor shall sign a counterpart to this Agreement agreeing to stand in the
place of such holder and be bound by the provisions hereof with respect to such
Unvested Management Securities.
(g) CHOICE OF LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO 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 RULES OR PROVISIONS (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 SHALL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT (AND ALL SCHEDULES AND EXHIBITS HERETO), EVEN
THOUGH UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE
SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
(h) REMEDIES. Each of the parties to this Agreement shall be
entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorney's fees) caused by any breach of
any provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages would not be
an adequate remedy for any breach of the provisions of this Agreement and that
any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
(i) AMENDMENT, MODIFICATION, OR WAIVER. The provisions of this
Agreement may be amended, modified, or waived only with the prior written
consent of the Company, the holders of a majority of the Forfeitable Purchaser
Securities, and the holders of a majority of the Unvested Management Securities.
(j) 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.
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 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. If an ambiguity or question
- 17 -
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.
(k) 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 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.
(l) EFFECTIVENESS OF AGREEMENT. This Agreement shall be valid,
binding, and effective against each holder of Management Securities or
Forfeitable Purchaser Securities when it has been signed by such holder.
Pursuant to Section 8(i) of the Prior Agreement, this Agreement amending and
restating the Prior Agreement shall be valid, binding, and effective against all
holders of Management Securities and Forfeitable Purchaser Securities when it
has been signed by the holders of a majority of the Forfeitable Purchaser
Securities and the holders of a majority of the Unvested Management Securities.
* * * *
- 18 -
IN WITNESS WHEREOF, the parties hereto have executed this
First Amended and Restated Performance Vesting Agreement on the date first
written above.
COMPANY
COMPLETEL, LLC
By /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx, its Chairman and CEO
PURCHASERS
XXXXXXXX HOLDINGS LIMITED PARTNERSHIP
BY LPL INVESTMENT GROUP, INC., ITS GENERAL PARTNER
By /s/ Xxxxxxxx X. XxXxxxxx
------------------------------------------
Xxxxxxxx X. XxXxxxxx, its Chairman
MADISON DEARBORN CAPITAL PARTNERS II, L.P.
By Madison Dearborn Partners II, L.P., its general partner
By Madison Dearborn Partners, Inc., its general partner
By /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Its Managing Director
------------------------------------------
/s/ Xxxxx X. Xxxxx
----------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxx
----------------------------------------------
Xxxxxx X. Xxxx
(Signature page for First Amended and Restated Performance Vesting Agreement)
/s/ Xxxx X. Xxxxx
----------------------------------------------
Xxxx X. Xxxxx
DOVEY COMPANY LLC
By /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx, its manager
EXECUTIVES:
/s/ Xxxxx X. Xxxxx
----------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxx
----------------------------------------------
Xxxxx X. Xxxxx
(Signature page for First Amended and Restated Performance Vesting Agreement)
OTHER PERSONS (SIGNATURES OF WHOM ARE
NOT INCLUDED) WHO ARE PARTY TO THIS
AGREEMENT PURSUANT TO THEIR EXECUTIVE
SECURITIES AGREEMENTS (AND/OR JOINDER
AGREEMENTS ENTERED INTO IN CONNECTION
THEREWITH):
----------------------------------------
XXXXXXX XXXXXXX
XXXX XXXXXX
XXXX-XXXXX LE MONZE
XXXXXXX XXXXXXX
XXXX XXXXX
XXXXXXXXX XXXXXXXXXX
XXXXXXX XXXXXXX
XXXXXX XXXXXXX
MICHEL XXXXXXXXXX
XXXXX LAUTERSLAGER
XXXX XXXX
XXXXXX X. XXXXX, XX.
XXX XXXXXXXXX
PIERRE WATTELIER
XXXXXXXX XXXXXX
XXX XXXXXX
XXXX-XXXXXXXX XXXXXX
XXXXXX XX XXXXX
(Signature page for First Amended and Restated Performance Vesting Agreement)
