Exhibit 10.13
FIRST AMENDED AND RESTATED
SECURITYHOLDERS AGREEMENT
THIS FIRST AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT
(this "AGREEMENT") is made as of January 28, 1999, by and among CompleTel LLC
(formerly known as CableTel Europe LLC), a Delaware limited liability company
(the "COMPANY"), and 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 as Securityholders on the signature pages hereto (collectively,
the "SECURITYHOLDERS"). MDCP, XxXxxxxx Holdings, Xxxxx, Holland, Laub, and Xxxxx
are referred to herein collectively as the "INVESTORS" and individually as an
"INVESTOR." Capitalized terms used but not otherwise defined herein are defined
in Section 8 hereof.
As of May 18, 1998, the Company and MDCP, Xxxxxxxx X. XxXxxxxx
("XXXXXXXX"), Xxxxx X. Xxxxx ("DOVEY"), Pearson, and Xxxxxxxxx entered into a
securityholders agreement (the "PRIOR AGREEMENT"). The parties hereto desire
that, effective as of the date hereof, the Prior Agreement shall be amended and
revised in its entirety as set forth herein.
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. REPRESENTATIONS AND WARRANTIES. Each Securityholder
represents and warrants that (i) such Securityholder has full power and
authority to execute, deliver and perform its obligations under this Agreement,
(ii) this Agreement has been duly authorized, executed and delivered by such
Securityholder and constitutes the valid and binding obligation of such
Securityholder, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and limitations
on the availability of equitable remedies, and (iii) such Securityholder has not
granted a proxy and is not party to any voting trust or other agreement with
respect to any Securityholder Securities, other than this Agreement, the Equity
Purchase Agreement, and the other agreements contemplated by the exhibits
thereto. No holder of Securityholder Securities will grant any proxy or become
party to any voting trust or other agreement which is inconsistent with,
conflicts with, or violates any provision of this Agreement.
2. THE BOARD.
(a) BOARD COMPOSITION AND VACANCIES. From and after the date
of this Agreement and until the provisions of this Section 2 cease to be
effective, each holder of Securityholder Securities shall vote all such holder's
Securityholder Securities and any other voting securities of the Company over
which such holder has voting control and shall take all other necessary or
desirable actions within such holder's control (whether in such holder's
capacity as a securityholder, director,
representative, member of a board committee, officer of the Company or
otherwise, and including, without limitation, attendance at meetings in person
or by proxy for purposes of obtaining a quorum and execution of written consents
in lieu of meetings), and the Company shall take all necessary or desirable
actions within its control (including, without limitation, calling special Board
and securityholder meetings), so that:
(i) The authorized number of representatives on the
Board shall be established and remain at eight representatives;
PROVIDED that at such time as MDCP ceases to be entitled (pursuant to
Section 2(a)(ii)(A)) to designate four representatives to the Board,
the authorized number of representatives on the Board shall be reduced
to and thereafter remain at seven representatives.
(ii) The following individuals shall be elected to
the Board:
(A) four representatives designated by the
holders of a majority of the MDCP Equity held by MDCP and its
Affiliates so long as MDCP and its Affiliates continue to hold
a majority of the outstanding Purchaser Securities;
thereafter, three representatives designated by the holders of
a majority of the MDCP Equity held by MDCP and its Affiliates
so long as MDCP and its Affiliates continue to hold at least
70% of the MDCP Equity; thereafter, two representatives
designated by the holders of a majority of the MDCP Equity
held by MDCP and its Affiliates so long as MDCP and its
Affiliates continue to hold at least 55% of the MDCP Equity;
and thereafter, one representative designated by the holders
of a majority of the MDCP Equity held by MDCP and its
Affiliates so long as MDCP and its Affiliates continue to hold
at least 40% of the MDCP Equity (such representatives, the
"MDCP REPRESENTATIVES");
(B) two representatives designated by the
holders of a majority of the XxXxxxxx Equity held by XxXxxxxx,
his Family Group, and his Affiliates so long as XxXxxxxx, his
Family Group, and his Affiliates continue to hold at least 70%
of the XxXxxxxx Equity; and thereafter, one representative
designated by the holders of a majority of the XxXxxxxx Equity
held by XxXxxxxx, his Family Group, and his Affiliates so long
as XxXxxxxx, his Family Group, and his Affiliates continue to
hold at least 40% of the XxXxxxxx Equity (such
representatives, the "XXXXXXXX REPRESENTATIVES");
(C) one member of the Company's management
designated by the holders of a majority of the Management
Equity (the "MANAGEMENT REPRESENTATIVE"); and
(D) one representative (the "OUTSIDE
REPRESENTATIVE") designated by the holders of a majority of
the Purchaser Securities then outstanding and approved by the
holders of a majority of the Management Equity, which approval
will not be unreasonably withheld.
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(iii) Except as otherwise determined by the Board,
the composition of the board of directors (or comparable governing
body) of each of the Company's Subsidiaries (a "SUB BOARD") shall be
the same as that of the Board; PROVIDED that, except as otherwise
determined by the Board, if the laws of the jurisdiction in which a
Company Subsidiary is organized prohibit its Sub Board from having the
same board composition as prescribed for the Board, or if such Sub
Board having such board composition would result in an adverse tax
consequence to any representative serving thereon or to the Company or
any of its Subsidiaries or members, (A) the authorized number of
representatives for such Sub Board shall be the same as that of the
Board, (B) the representative positions for such Sub Board shall be
filled with representatives who satisfy such laws or avoid such adverse
tax consequence, as appropriate, and who are designated by the holders
entitled to designate the representatives serving on the Board in the
same proportion as such representatives, to the extent practicable, and
(C) if permitted by the laws of the jurisdiction in which such
Subsidiary is organized and if such would not result in an adverse tax
consequence to any representative serving on such Sub Board or to the
Company or any of its Subsidiaries or members, the parent entity of
such Subsidiary shall execute and maintain a "unanimous declaration of
shareholders" vesting the sole power and authority to direct the
affairs of such Subsidiary in its shareholders.
(iv) Committees of the Board or a Sub Board shall be
created only upon the approval of a majority of the members of the
Board or the applicable Sub Board, and the composition of each such
committee shall be determined by the Board or the applicable Sub Board.
(v) Any representative will be removed from the Board
or a Sub Board, with or without cause, at the written request of the
holder or holders entitled to designate such representative to serve on
such Board or Sub Board, but only upon such written notice and under no
other circumstances; PROVIDED that if any Management Representative
ceases to be an employee of the Company or any of its Subsidiaries,
such representative shall be removed as a member of the Board and each
Sub Board promptly after his or her employment ceases.
(vi) If any representative ceases to serve as a
member of the Board or any Sub Board during his or her term of office,
the resulting vacancy on the Board or Sub Board shall be filled by a
representative (or in the case of a vacant Management Representative
position, a member of the Company's management) designated by the
holder or holders entitled to designate the departing representative.
(vii) If any party eligible to designate a
representative under this Section 2 fails to so designate, the
individual previously holding such representative position shall be
elected to such position, unless such individual has been removed as a
representative or fails or declines to serve, in which case such
vacancy shall remain until filled with a representative designated by
the holder or holders which failed to designate an individual to fill
such representative position.
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(viii) If any party becomes ineligible, by virtue of
the terms of subparagraph 2(a)(ii), to designate a representative to
fill a representative position pursuant to such subparagraph, all
rights and entitlements hereunder to designate (and the concomitant
rights to remove, replace, etc.) persons to fill such position (unless
such position ceases to exist by operation of the proviso in Section
2(a)(i)) shall thereafter be exercised by the holders of a majority of
the Purchaser Securities then outstanding.
(ix) Each representative shall be entitled to one
vote on all matters submitted to a vote of the Board; PROVIDED that so
long as MDCP is entitled (pursuant to Section 2(a)(ii)(A)) to designate
four representatives to the Board, one of the MDCP Representatives
(which MDCP Representative shall be selected from among the MDCP
Representatives present in person or by proxy for a Board vote by the
MDCP Representatives present in person (or, if none, by proxy) for such
vote) shall be entitled to two votes (and, during such time as an MDCP
Representative is entitled to two votes, a "majority" of the
representatives on the Board shall for all purposes (including
determinations of the existence of a quorum or of a majority vote
required for action by the Board) mean representatives entitled to cast
a majority of the total votes that may be cast by all representatives);
AND PROVIDED FURTHER that at such time as MDCP ceases to be entitled
(pursuant to Section 2(a)(ii)(A)) to designate four representatives to
the Board, each representative shall thereafter be entitled to only one
vote on all matters submitted to a vote by the Board.
(b) DIRECTOR EXPENSES; INDEMNITY INSURANCE; EXCULPATION. The
Company shall pay the reasonable out-of-pocket expenses incurred by each
representative in connection with attending the meetings of the Board, any Sub
Board and/or any committee thereof. So long as any representative designated
under this Agreement serves on the Board and for five years thereafter, the
Company shall maintain directors and officers indemnity insurance coverage
satisfactory to the Board at the time such insurance is first obtained and not
thereafter reduced in amount or coverage, and the LLC Agreement (or the
Company's other organizational documents, as appropriate) shall provide for
indemnification and exculpation of representatives to the fullest extent
permitted under applicable law.
(c) ATTENDANCE RIGHT. If at any time MDCP or XxXxxxxx fails
for any reason, or becomes ineligible, to designate any representatives pursuant
to this Section 2, then so long as such Investor together with its Affiliates
(and in the case of XxXxxxxx, Family Group) continues to hold at least 10% of
the MDCP Equity or XxXxxxxx Equity, as appropriate, the Company shall (i) permit
an individual selected by such Investor to attend as a non-voting observer (or,
in the case of a telephonic conference, listener) all meetings of the Board, any
Sub Board, or any committees thereof, (ii) provide such individual with all
written materials and other information (including, without limitation, copies
of meeting minutes and notices of future meetings) given to representatives in
connection with such meetings at the same time such materials and information
are given to the representatives, and (iii) pay the reasonable out-of-pocket
expenses incurred by such individual in connection with attending such meetings.
(d) TERMINATION. The provisions of this Section 2 shall
terminate automatically and be of no further force and effect upon the
consummation of a Sale of the Company; PROVIDED that
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the requirements of the second sentence of Section 2(b) shall continue in full
force for the time periods referenced therein.
3. RESTRICTIONS ON TRANSFER OF EXECUTIVE SECURITIES. Each
holder of Executive Securities accepts, acknowledges, and agrees that the
Executive Securities held by such Person and its transferees are subject to
significant restrictions on transfer, repurchase options, and certain other
agreements set forth in the Executive Securities Agreement to which such Person
is a party.
4. RESTRICTIONS ON TRANSFER OF PURCHASER SECURITIES.
(a) RETENTION OF PURCHASER SECURITIES.
(i) No holder of Investor Securities shall sell,
transfer, assign, pledge, or otherwise dispose of (whether with or
without consideration and whether voluntarily or involuntarily or by
operation of law) any interest in any Purchaser Securities (a
"TRANSFER") at any time prior to the first anniversary of the date of
the Prior Agreement, except pursuant to (A) a Sale of the Company, (B)
a Permitted Transfer (as defined below), (C) the repurchase provisions
set forth in the Equity Purchase Agreement, or (D) the forfeiture
provisions set forth in the Performance Vesting Agreement.
(ii) No holder of Purchaser Securities (other than
Investor Securities) shall Transfer any such Purchaser Securities at
any time prior to the second anniversary of the date of the Prior
Agreement, except pursuant to (A) a Sale of the Company, (B) a
Permitted Transfer (as defined below), (C) the repurchase provisions
set forth in the Equity Purchase Agreement, or (D) the forfeiture
provisions set forth in the Performance Vesting Agreement.
(iii) No holder of Purchaser Securities shall
Transfer any Purchaser Securities at any time after the expiration of
the applicable time period set forth in subparagraph 4(a)(i) or (ii)
above, except pursuant to (A) a Sale of the Company, (B) a Public Sale,
(C) a Permitted Transfer (as defined below), (D) the repurchase
provisions or the put rights provisions set forth in the Equity
Purchase Agreement, (E) the forfeiture provisions set forth in the
Performance Vesting Agreement, or (F) the provisions of paragraphs 4(b)
and 4(c) hereof.
(b) FIRST REFUSAL RIGHTS.
(i) At least 30 days prior to any Transfer of
Purchaser Securities (except pursuant to (A) a Sale of the Company, (B)
a Public Sale, (C) a Permitted Transfer (as defined below), (D) the
repurchase provisions or the put rights provisions set forth in the
Equity Purchase Agreement, or (E) the forfeiture provisions set forth
in the Performance Vesting Agreement), the Securityholder desiring to
make such Transfer (the "TRANSFERRING SECURITYHOLDER") shall deliver a
written notice (the "OFFER NOTICE") to each other Securityholder,
specifying in reasonable detail the identity of the prospective
transferee(s), the number and type of Purchaser Securities to be
transferred (the "OFFERED SECURITIES") and the price and other terms
and conditions of the proposed Transfer. The Transferring
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Securityholder shall not consummate such proposed Transfer until at
least 30 days after the delivery of the Offer Notice, unless the
parties to the Transfer have been finally determined pursuant to this
Section 4 prior to the expiration of such 30-day period (the date of
the first to occur of such final determination or such expiration is
referred to herein as the "AUTHORIZATION DATE").
(ii) Each holder of Purchaser Securities may elect to
purchase all (but not less than all) of such holder's Pro Rata Share
(as defined below) of the Offered Securities at the price and on the
other terms set forth in the Offer Notice, by delivering written notice
of such election to the Transferring Securityholder within 20 days
after delivery of the Offer Notice. Any Offered Securities not elected
to be purchased by the end of such 20-day period shall during the
immediately following 10-day period be reoffered by the Transferring
Securityholder on a pro rata basis to the holders of Purchaser
Securities who have elected to purchase their Pro Rata Share, and so on
until the holders of Purchaser Securities have elected to purchase all
of the Offered Securities or no holders of Purchaser Securities desire
to elect to purchase any remaining reoffered Offered Securities. For
purposes of this paragraph, the "PRO RATA SHARE" of each holder of
Purchaser Securities shall be equal to the quotient of (x) the number
of Purchaser Securities then held by such holder, DIVIDED BY (y) the
aggregate number of Purchaser Securities then held by all holders of
Purchaser Securities (other than the Transferring Securityholder).
(iii) If the holders of Purchaser Securities have
elected to purchase all of the Offered Shares from the Transferring
Securityholder, such purchase shall be consummated as soon as
practicable after the delivery of the election notice(s) to the
Transferring Securityholder, but in any event within 30 days after the
Authorization Date. Notwithstanding any other provision hereof, if the
sale price, or any portion thereof, for the Offered Securities is not
payable in the form of cash at closing or cash payable on a defined
basis (such as pursuant to simple promissory notes issued by the
prospective purchaser described in the Offer Notice), each holder of
Investor Securities electing to purchase Offered Securities pursuant to
this paragraph shall be required to pay only such portion, if any, of
the sale price described in the Offer Notice as consists of such cash
or cash-payable consideration, and delivery of such consideration to
the Transferring Securityholder shall be payment in full for such
Offered Securities.
(iv) If the holders of Purchaser Securities do not
elect, in the aggregate, to purchase all of the Offered Securities from
the Transferring Securityholder, all elections to purchase such Offered
Securities shall be null and void, and the Transferring Securityholder
shall have the right, within the 90 days following the Authorization
Date and subject to the provisions of subparagraph 4(c) below, to
transfer such Offered Securities to the transferee(s) specified in the
Offer Notice in the amounts specified in the Offer Notice at a price
not less than the price per security specified in the Offer Notice and
on other terms no more favorable to the transferee(s) thereof than
specified in the Offer Notice. Any Purchaser Securities not so
transferred within such 90-day period shall be reoffered to the holders
of Purchaser Securities pursuant to this paragraph 4(b) prior to any
subsequent Transfer.
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(c) PARTICIPATION RIGHTS.
(i) Any holder of Purchaser Securities or Fully
Vested Securities who is not purchasing any Offered Securities pursuant
to paragraph 4(b) above may elect to participate (as set forth herein)
in any sale of Offered Securities pursuant to subparagraph 4(b)(iv)
above (and only in sales pursuant to such subparagraph) at the
Equivalent Price (as defined below) and on substantially the same terms
applicable to the Transferring Securityholder by giving written notice
of such election to the Transferring Securityholder within 30 days
after delivery of the Offer Notice.
(ii) Each holder of Fully Vested Securities electing
to participate in such Transfer shall be entitled to sell in the
contemplated Transfer a number of Fully Vested Securities equal to the
product of (A) the number of Fully Vested Securities held by such
holder, TIMES (B) a fraction, the numerator of which is the number of
Offered Securities proposed to be sold in such contemplated Transfer,
and the denominator of which is the aggregate number of Purchaser
Securities and Executive Securities (other than Un-Performance-Vested
Securities) then outstanding. Each holder of Purchaser Securities
electing to participate in such Transfer shall be entitled to sell in
the contemplated Transfer a number of Purchaser Securities equal to the
product of (x) the difference of the number of Offered Securities
proposed to be sold in the contemplated Transfer MINUS the number of
Fully Vested Securities to be included in such Transfer by all holders
of Fully Vested Securities electing to participate in such Transfer
(calculated pursuant to the immediately preceding sentence), TIMES (y)
a fraction, the numerator of which is the number of Purchaser
Securities held by such holder, and the denominator of which is the
aggregate number of Purchaser Securities held by the Transferring
Securityholder and all other Securityholders electing to participate in
such Transfer.
(iii) Each Transferring Securityholder shall use best
efforts to obtain the agreement of the prospective transferee(s) to the
participation of each electing Securityholder and to the inclusion of
the Purchaser Securities and/or Fully Vested Securities which each such
Securityholder has the right to, and has elected to, include in the
contemplated Transfer. No Transferring Securityholder shall transfer
any of its Purchaser Securities to any prospective transferee(s) unless
(A) such prospective transferee(s) agree to allow the participation of
all electing Securityholders and to the inclusion in such Transfer of
the Purchaser Securities and/or Fully Vested Securities which such
holders have the right to, and have elected to, include, or (B) the
Transferring Securityholder purchases from each electing Securityholder
the same number of securities (at the same price and on the same terms)
that such participating Securityholder would have been entitled to sell
had the prospective transferee(s) so agreed.
(iv) Each Securityholder transferring securities
pursuant to this paragraph 4(c) shall pay its pro rata share (based on
the number of Securityholder Securities to be transferred by such
Securityholder) of the expenses incurred by the Securityholders in
connection with such transfer and shall be obligated to participate
severally on a pro rata basis (based on the number of Securityholder
Securities to be sold) in any indemnification
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or other obligations that the Transferring Securityholder agrees to
provide in connection with such transfer (other than any such
obligations that relate solely to a particular Securityholder, such as
indemnification with respect to representations and warranties given by
a Securityholder regarding such Securityholder's title to and ownership
of Securityholder Securities, in respect of which only such
Securityholder shall be liable); PROVIDED that no holder shall be
obligated in connection with such indemnification or other obligations
with respect to an amount in excess of the net cash proceeds paid to
such holder in connection with such Transfer.
(d) DEFINITIONS. For purposes of this Section 4, the following
terms shall have the meanings set forth below:
"EQUIVALENT PRICE," as to any particular security shall mean
(i) with respect to any security of the same class of securities as any Offered
Securities being transferred by the Transferring Securityholder, the price
specified in the Offer Notice to be paid to the Transferring Securityholder for
each security of such class, (ii) with respect to any other security, the fair
value of such security (as based upon, or implied by, the price specified in the
Offer Notice to be paid to the Transferring Securityholder(s) for the type and
class of Offered Securities to be transferred in the contemplated Transfer) as
agreed upon by the Transferring Securityholder and the holders of a majority of
the Securityholder Securities electing to be included in such Transfer (or if
such Persons cannot reach agreement, as determined by an appraiser or investment
banker mutually agreeable to such Persons).
"PERMITTED TRANSFER" shall mean any transfer of Purchaser
Securities (i) in the case of any Securityholder that is an Investor, (A) to an
Affiliate of the transferor or (B) to any Person acquiring all or substantially
all of the transferor's portfolio investments, and (ii) in the case of an
Executive, pursuant to applicable laws of descent and distribution or among such
Person's Family Group (as defined in the Executive Securities Agreements);
PROVIDED that in each case the restrictions contained herein shall continue to
be applicable to such Purchaser Securities after any such Permitted Transfer,
and the transferee(s) of such Purchaser Securities shall have agreed in writing
to be bound by the provisions of this Agreement and the related agreements
contemplated hereby with respect to the Purchaser Securities so transferred.
(e) TERMINATION OF RESTRICTIONS. The provisions of this
Section 4 shall continue to apply to each Purchaser Security (and shall survive
any transfer thereof) until the earliest to occur of (A) the date on which such
Purchaser Security has been transferred in a Public Sale, pursuant to the
repurchase provisions or the put rights provisions of the Equity Purchase
Agreement, or pursuant to the forfeiture provisions of the Performance Vesting
Agreement, (B) a Sale of the Company, or (C) the consummation of a Public
Offering.
5. SALE OF THE COMPANY; INITIAL PUBLIC OFFERING.
(a) SECURITYHOLDERS' SALE OF THE COMPANY OBLIGATION. If at any
time the holders of a majority of the Purchaser Securities then outstanding,
approve a Sale of the Company (an "APPROVED SALE"), each holder of
Securityholder Securities shall vote for, consent to and raise no objections
against such Approved Sale. If the Approved Sale is structured as a sale of
equity, each
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such holder of Securityholder Securities shall agree to sell all of such
holder's Securityholder Securities on the terms and conditions approved by the
holders of a majority of the Purchaser Securities then outstanding. Each holder
of Securityholder Securities shall be obligated to join on a pro rata basis
(based on the number of Securityholder Securities to be sold) in any
indemnification or other obligations that the sellers of Securityholder
Securities are required to provide in connection with the Approved Sale (other
than any such obligations that relate solely to a particular Securityholder,
such as indemnification with respect to representations and warranties given by
a Securityholder regarding such Securityholder's title to and ownership of
Securityholder Securities, in respect of which only such Securityholder shall be
liable); PROVIDED that no holder shall be obligated in connection with such
indemnification or other obligations with respect to an amount in excess of the
consideration received by such holder in connection with such transfer. Each
holder of Securityholder Securities shall take all other necessary or desirable
actions in connection with the consummation of the Approved Sale as requested by
the Company.
(b) CONDITIONS TO SALE OF THE COMPANY OBLIGATION. The
obligations of each holder of Securityholder Securities to approve or
participate in any Approved Sale are subject to the satisfaction of the
following conditions: (i) upon the consummation of the Approved Sale, each
holder of a class of the Company's capital stock shall receive the same form of
consideration and the same amount of consideration for each share of such class
of capital stock to be sold in such Approved Sale, and (ii) if any holders of a
class of the Company's capital stock are given an option as to the form and
amount of consideration to be received, each holder of such class of capital
stock shall be given the same option.
(c) INITIAL PUBLIC OFFERING. In the event that the holders of
a majority of the Purchaser Securities then outstanding approve an initial
Public Offering, each holder of Securityholder Securities shall vote for,
consent to and raise no objections against such proposed Public Offering, and
shall take all such other necessary or desirable actions in connection with the
consummation of the Public Offering as reasonably requested by the Company.
(d) TERMINATION. The provisions of this paragraph 5 shall
terminate upon the completion of a Sale of the Company.
(e) DISSENTERS RIGHTS. Notwithstanding anything in this
paragraph 5 to the contrary, each holder of Securityholder Securities shall have
the right to exercise such holder's rights under Section 18-210 of the Act
(entitled "Contractual Appraisal Rights") with respect to a Sale of the Company.
6. RESTRICTIVE LEGEND. Each certificate evidencing
Securityholder Securities and each certificate issued in exchange for or upon
the transfer of any Securityholder Securities (if such securities remain
Securityholder Securities after such transfer) shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"The securities represented by this certificate are subject to
a voting agreement, restrictions on transfer, and certain
other agreements set forth in a First Amended and Restated
Securityholders Agreement
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dated as of January 28, 1999, among the issuer of such
securities (the "Issuer") and certain of the Issuer's
securityholders, as amended and modified from time to time. A
copy of such Securityholders Agreement shall be furnished
without charge by the Issuer to the holder hereof upon written
request."
The Company shall imprint such legend on certificates evidencing Securityholder
Securities outstanding as of the date hereof. The legend set forth above shall
be removed from the certificates evidencing any securities which cease to be
Securityholder Securities in accordance with the definition of such term herein.
7. EXECUTION OF THIS AGREEMENT BY TRANSFEREES. Prior to
transferring any Securityholder Securities to any Person (other than pursuant to
a Public Sale, a Sale of the Company, the put rights provisions of the Equity
Purchase Agreement, the repurchase provisions set forth in the Equity Purchase
Agreement or any Executive Securities Agreement, or the forfeiture provisions of
the Performance Vesting Agreement), the transferring Securityholder(s) shall
cause the prospective transferee(s) to be bound by this Agreement and to execute
and deliver to the Company and the other Securityholders a counterpart of this
Agreement.
8. DEFINITIONS.
"ACT" means the Delaware Limited Liability Company Act, 6
Del.L. Section 18-101, ET SEQ., as it may be amended from time to time, and any
successor thereto.
"XXXXX" has the meaning set forth with respect thereto in the
preamble.
"AFFILIATE" of any particular Person means (i) any other
Person controlling, controlled by or under common control with such particular
Person, where "control" means the possession, directly or indirectly, of the
power to direct the management and policies of a Person whether through the
ownership of voting securities, contract or otherwise, and (ii) if such Person
(other than the Company) is a partnership, the partners thereof.
"AUTHORIZATION DATE" has the meaning set forth with respect
thereto in Section 4(b)(i).
"AGREEMENT" has the meaning set forth with respect thereto in
the preamble.
"BOARD" means the board of managers of the Company or, if the
Company is hereafter converted into a corporation or other entity form, the
board of directors or comparable governing body of the Company.
"CLASS A SENIOR UNITS" means the Class A Senior Units of the
Company, having the rights and preferences set forth with respect thereto in the
LLC Agreement.
"CLASS B SENIOR UNITS" means the Class B Senior Units of the
Company, having the rights and preferences set forth with respect thereto in the
LLC Agreement.
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"CLASS C SENIOR UNITS" means the Class C Senior Units of the
Company, having the rights and preferences set forth with respect thereto in the
LLC Agreement.
"XXXXXXXXX" has the meaning set forth with respect thereto in
the preamble.
"COMMON UNITS" means the Common Units of the Company, having
the rights and preferences set forth with respect thereto in the LLC Agreement.
"COMPANY" has the meaning set forth with respect thereto in
the preamble.
"XXXXXXXX" has the meaning set forth with respect thereto in
the preamble.
"XXXXXXXX HOLDINGS" has the meaning set forth with respect
thereto in the preamble.
"XXXXXXXX EQUITY" means (i) the Preferred Units issued to
XxXxxxxx pursuant to the Equity Purchase Agreement, (ii) any Common Units issued
upon conversion of the Preferred Units referred to in clause (i), and (iii) any
securities issued directly or indirectly with respect to any of the foregoing
securities by way of a stock split, stock dividend, or other division of
securities, or in connection with a combination of securities, recapitalization,
merger, consolidation, or other reorganization, or upon conversion or exercise
of any of the foregoing securities; PROVIDED that XxXxxxxx Equity shall in no
event include any Senior Units. As to any particular securities constituting
XxXxxxxx Equity, such securities shall cease to be XxXxxxxx Equity when they
have been (a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, (b) distributed to the
public through a broker, dealer or market maker pursuant to Rule 144 under the
Securities Act (or any similar provision then in force), or (c) repurchased or
otherwise acquired by the Company (or its assignees) or forfeited pursuant to
the terms of the Performance Vesting Agreement. Any reference herein to a
"majority of the XxXxxxxx Equity" or the "number of securities constituting
XxXxxxxx Equity" for purposes of comparison shall refer, with respect to any
particular securities constituting XxXxxxxx Equity, to the number of Common
Units (or equivalent common equity securities of the Company) then represented
by such XxXxxxxx Equity (on a fully diluted, as-if-converted basis).
"XXXXXXXX REPRESENTATIVE" has the meaning set forth with
respect thereto in Section 2(a).
"DOVEY" has the meaning set forth with respect thereto in the
preamble.
"DOVEY LLC" has the meaning set forth with respect thereto 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, the Investors and the other Persons
listed on the signature pages thereto, as amended from time to time in
accordance with its terms.
"EQUIVALENT PRICE" has the meaning set forth with respect
thereto in Section 4(d).
- 11 -
"EXECUTIVE" means each employee of the Company and its
Subsidiaries issued Common Units of the Company pursuant to an Executive
Securities Agreement.
"EXECUTIVE SECURITIES" has the meaning set forth with respect
thereto in the Equity Purchase Agreement.
"EXECUTIVE SECURITIES AGREEMENTS" has the meaning set forth
with respect thereto in the Equity Purchase Agreement.
"FAMILY GROUP" (i) as to XxXxxxxx, means XxXxxxxx'x spouse,
siblings and descendants (whether natural or adopted) and any of such
descendants' spouses, any trust which is and remains solely for the benefit of
XxXxxxxx and/or XxXxxxxx'x spouse, siblings, and/or descendants and/or such
descendants' spouses, and any family partnership the partners of which consist
solely of XxXxxxxx, such spouse, such siblings, such descendants, such
descendants' spouses, and/or such trusts; and (ii) as to any Executive, has the
meaning set forth in such Executive's Executive Securities Agreement.
"FULLY VESTED SECURITIES" means Executive Securities as of the
date of any determination to be made hereunder (and after giving effect to any
vesting which would occur under the Performance Vesting Agreement with respect
to any sale of securities on such date) which both (A) have time vested pursuant
to the provisions of the Executive Securities Agreements AND (B) are not
Un-Performance-Vested Securities.
"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" have the meanings set forth with
respect thereto in the preamble.
"INVESTOR SECURITIES" means (i) the Preferred Units issued to
the Investors under the Equity Purchase Agreement, (ii) any Common Units issued
upon conversion of the Preferred Units referred to in clause (i), and (iii) any
securities issued directly or indirectly with respect to any of the foregoing
securities by way of a stock split, stock dividend, or other division of
securities, or in connection with a combination of securities, recapitalization,
merger, consolidation, or other reorganization, or upon conversion or exercise
of any of the foregoing securities; PROVIDED that Investor Securities shall in
no event include any Senior Units. As to any particular securities constituting
Investor Securities, such securities shall cease to be Investor Securities when
they have been (a) effectively registered under the Securities Act and disposed
of in accordance with the registration statement covering them, (b) distributed
to the public through a broker, dealer or market maker pursuant to Rule 144
under the Securities Act (or any similar provision then in force) or (c)
repurchased or otherwise acquired by the Company (or its assignees) or forfeited
pursuant to the terms of the Performance Vesting 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
- 12 -
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.
"LLC AGREEMENT" means that certain limited liability company
agreement governing the affairs of the Company, entered into by and among the
Investors, the Executives, and the other holders of unit membership interests in
the Company.
"MANAGEMENT EQUITY" means (i) the Common Units issued to the
Executives and to other Key Employees of the Company under the Executive
Securities Agreements (but not including any Un-Performance-Vested Securities),
and (ii) any securities issued directly or indirectly with respect to any of the
foregoing securities by way of a stock split, stock dividend, or other division
of securities, or in connection with a combination of securities,
recapitalization, merger, consolidation, or other reorganization, or upon
conversion or exercise of any of the foregoing securities; PROVIDED that
Management Equity shall in no event include any Senior Units; AND PROVIDED
FURTHER that Management Equity shall in no event include any securities held by
any Person other than a Key Employee of the Company and its Subsidiaries or any
transferee of a Key Employee in a transfer (A) pursuant to applicable laws of
descent and distribution or (B) among such Key Employee's Family Group (as
defined in the Executive Securities Agreements). As to any particular securities
constituting Management Equity, such securities shall cease to be Management
Equity when they have been (a) effectively registered under the Securities Act
and disposed of in accordance with the registration statement covering them, (b)
distributed to the public through a broker, dealer or market maker pursuant to
Rule 144 under the Securities Act (or any similar provision then in force), (c)
transferred to any Person other than (1) a Key Employee of the Company and its
Subsidiaries or (2) by a Key Employee in a transfer (x) pursuant to applicable
laws of descent and distribution or (y) among such Key Employee's Family Group
(as defined in the Executive Securities Agreements), or (d) repurchased or
otherwise acquired by the Company (or its assignees) or forfeited pursuant to
the terms of the Performance Vesting Agreement. Any reference herein to a
"majority of the Management Equity" or the "number of securities constituting
Management Equity" for purposes of comparison shall refer, with respect to any
particular securities constituting Management Equity, to the number of Common
Units (or equivalent common equity securities of the Company) then represented
by such Management Equity (on a fully diluted, as-if-converted basis, but (as
stated above) excluding any Un-Performance-Vested Securities).
"MANAGEMENT REPRESENTATIVE" has the meaning set forth with
respect thereto in Section 2(a).
"MDCP" has the meaning set forth with respect thereto in the
preamble.
- 13 -
"MDCP EQUITY" means (i) the Preferred Units issued to MDCP
pursuant to the Equity Purchase Agreement, and (ii) any securities issued
directly or indirectly with respect to any of the foregoing securities by way of
a stock split, stock dividend, or other division of securities, or in connection
with a combination of securities, recapitalization, merger, consolidation, or
other reorganization, or upon conversion or exercise of any of the foregoing
securities; PROVIDED that MDCP Equity shall in no event include any Senior
Units. As to any particular securities constituting MDCP Equity, such securities
shall cease to be MDCP Equity when they have been (a) effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them, (b) distributed to the public through a broker, dealer
or market maker pursuant to Rule 144 under the Securities Act (or any similar
provision then in force), or (c) repurchased or otherwise acquired by the
Company (or its assignees) or forfeited pursuant to the terms of the Performance
Vesting Agreement. Any reference herein to a "majority of the MDCP Equity" or
the "number of securities constituting MDCP Equity" for purposes of comparison
shall refer, with respect to any particular securities constituting MDCP Equity,
to the number of Common Units (or equivalent common equity securities of the
Company) then represented by such MDCP Equity (on a fully diluted,
as-if-converted basis).
"MDCP REPRESENTATIVE" has the meaning set forth with respect
thereto in Section 2(a).
"OFFER NOTICE" has the meaning set forth with respect thereto
in Section 4(b)(i).
"OFFERED SECURITIES" has the meaning set forth with respect
thereto in Section 4(b)(i).
"OUTSIDE REPRESENTATIVE" has the meaning set forth with
respect thereto in Section 2(a).
"PERFORMANCE VESTING AGREEMENT" has the meaning set forth with
respect thereto in the Equity Purchase Agreement.
"PERMITTED TRANSFER," unless otherwise expressly stated, has
the meaning set forth with respect thereto in Section 4(d).
"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.
"PREFERRED UNITS" means the Preferred Units of the Company,
having the rights and preferences set forth with respect thereto in the LLC
Agreement.
"PRIOR AGREEMENT" has the meaning set forth with respect
thereto in the preamble.
"PRO RATA SHARE" has the meaning set forth with respect
thereto in Section 4(b)(ii).
- 14 -
"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 S-8 (or a successor form adopted by the Securities and Exchange Commission)
or otherwise.
"PUBLIC SALE" means any sale of securities to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act (or any similar provision then in force).
"PURCHASER SECURITIES" means (i) the Preferred Units issued
pursuant to the Equity Purchase Agreement, (ii) any Common Units issued or
issuable upon conversion of the Preferred Units referred to in paragraph (i),
and (iii) any securities issued directly or indirectly with respect to any of
the foregoing securities by way of a stock split, stock dividend, or other
division of securities, or in connection with a combination of securities,
recapitalization, merger, consolidation, or other reorganization; PROVIDED that
Purchaser Securities shall not include any Senior Units. As to any particular
securities constituting Purchaser Securities, such securities shall cease to be
Purchaser Securities when they have been (a) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them, (b) distributed to the public through a broker, dealer or market
maker pursuant to Rule 144 under the Securities Act (or any similar provision
then in force), or (c) repurchased or otherwise acquired by the Company (or its
assignee) or forfeited pursuant to the terms of the Performance Vesting
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).
"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, pursuant
to 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 by 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
from time to time.
"SECURITYHOLDER" and "SECURITYHOLDERS" have the meanings set
forth with respect thereto in the preamble, and such terms include any Person
becoming a party hereto after the date hereof in accordance with the terms
hereof.
- 15 -
"SECURITYHOLDER SECURITIES" means (i) any Preferred Units or
Common Units issued to or otherwise acquired by a Securityholder, and (ii) any
securities issued directly or indirectly with respect to any of the foregoing
securities by way of a stock split, stock dividend, or other division of
securities, or in connection with a combination of securities, recapitalization,
merger, consolidation, or other reorganization, or upon conversion or exercise
of any of the foregoing securities; PROVIDED that Securityholder Securities
shall in no event include any Senior Units. As to any particular securities
constituting Securityholder Securities, such securities shall cease to be
Securityholder Securities when they have been (a) effectively registered under
the Securities Act and disposed of in accordance with the registration statement
covering them, (b) distributed to the public through a broker, dealer or market
maker pursuant to Rule 144 under the Securities Act (or any similar provision
then in force) or (c) repurchased or otherwise acquired by the Company (or its
assignees) or forfeited pursuant to the terms of the Performance Vesting
Agreement. Any reference herein to a "majority of the Securityholder Securities"
or the "number of Securityholder Securities" for purposes of comparison shall
refer, with respect to any particular Securityholder Securities, to the number
of Common Units (or equivalent common equity securities of the Company) then
represented by such Securityholder Securities (on a fully diluted,
as-if-converted basis, but excluding any Un-Performance-Vested Securities).
"SENIOR UNITS" means, collectively, the Class A Senior Units,
the Class B Senior Units, and the Class C Senior Units.
"SUB BOARD" has the meaning set forth with respect thereto in
Section 2(a).
"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 limited liability company, partnership or
other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of that Person
or a combination thereof. For purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a limited liability company,
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control the
managing director 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.
"TRANSFERRING SECURITYHOLDER" has the meaning set forth with
respect thereto in Section 4(b)(i).
- 16 -
"UN-PERFORMANCE-VESTED SECURITIES" means any Executive
Securities which are subject to performance vesting, but have not yet
performance vested, pursuant to the provisions of the Performance Vesting
Agreement.
9. TRANSFERS IN VIOLATION OF AGREEMENT. Any transfer or
attempted transfer of any Securityholder Securities in violation of any
provision of this Agreement shall be void, and none of the Company or any
Subsidiary shall record such purported transfer on its books or treat any
purported transferee of such Securityholder Securities as the owner of such
securities for any purpose.
10. 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.
11. COMPLETE AGREEMENT. Except as otherwise expressly set
forth herein, this Agreement, those documents expressly referred to herein and
related documents of even date herewith among the parties embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way (including, without limitation, the
Prior Agreement).
12. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, none of which need contain the signature of more than one party
hereto but each of which shall be deemed 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 purchases 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).
13. 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 its successors and assigns and the Securityholders and any
subsequent holders of Securityholder Securities and the respective successors
and assigns of each of them, so long as they hold Securityholder Securities,
whether so expressed or not.
14. REMEDIES. Each of the parties to this Agreement shall be
entitled to enforce their 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
- 17 -
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 for specific performance and/or injunctive relief
(without posting a bond or other security) in order to enforce or prevent any
violation of the provisions of this Agreement.
15. AMENDMENT AND WAIVER. The provisions of this Agreement may
be amended, modified, or waived only with the prior written consent of the
holders of a majority of the Purchaser Securities outstanding at the time such
amendment or waiver becomes effective; PROVIDED that if any such modification,
amendment or waiver would adversely affect any Securityholder or Securityholders
relative to the Securityholders voting in favor thereof, such modification,
amendment or waiver shall also require the prior written approval of the holders
of a majority of the Securityholder Securities held by the Securityholder(s) so
adversely affected; AND PROVIDED FURTHER that if any such amendment,
modification or waiver is to a provision in this Agreement that requires a
specific vote to take an action thereunder or to take an action with respect to
the matters described therein, such amendment, modification or waiver shall not
be effective unless such vote is obtained with respect to such amendment,
modification or waiver. No course of dealing or the failure of any party to
enforce any of the provisions of this Agreement shall in any way operate as a
waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
16. NOTICES. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when (a) delivered
personally to the recipient, (b) telecopied to the recipient (with hard copy
sent to the recipient by reputable overnight courier service (charges prepaid)
that same day) if telecopied before 5:00 p.m. Chicago, Illinois time on a
business day, and otherwise on the next business day, or (c) one business day
after being sent to the recipient by reputable overnight courier service
(charges prepaid). Such notices, demands and other communications shall be sent
to the Company at the address set forth below and to any Securityholder or other
holder of Securityholder Securities subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party.
TO THE COMPANY:
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
17. GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY 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
- 18 -
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.
18. BUSINESS DAYS. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or legal
holiday in the State of Colorado, the Republic of France, or the jurisdiction
where the Company's principal office is located, the time period shall
automatically be extended to the business day immediately following such
Saturday, Sunday or legal holiday.
19. 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. If 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.
20. 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.
21. EFFECTIVENESS OF AGREEMENT. This Agreement shall be valid,
binding, and effective against each holder of Securityholder Securities when it
has been signed by such holder. Pursuant to Section 15 of the Prior Agreement,
this Agreement amending and restating the Prior Agreement shall be valid,
binding, and effective against all Securityholders when it has been signed by
the holders of a majority of the Purchaser Securities.
- 19 -
* * * *
- 20 -
IN WITNESS WHEREOF, the parties hereto have executed this
First Amended and Restated Securityholders Agreement on the day and year first
above written.
COMPANY:
COMPLETEL, LLC
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, its Chairman and CEO
SECURITYHOLDERS:
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 Securityholders Agreement)
/s/ Xxxx X. Xxxxx
-------------------------------------------
Xxxx X. Xxxxx
DOVEY FAMILY PARTNERS LLLP
By /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx, its general partner
DOVEY COMPANY LLC
By /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx, its manager
/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 Securityholders 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
XXXXXXX XXXXXXXX
XXXXXXX XXXXX
XXXXX XXXXXX
XXXX-XXXXXXXXX XXXXXXX
XXXXXXX XXXXX
XXXXX-XXXXXXXXX XXXXXX
VAN-XXXX XXXXXXXX
XXXXXXXX XXXXXX
XXXXXX XXXXXXX
XXXXXXX BURLINCHON
XXXXXX AFFRET
XXXX XXXXXXXXX
XXXXXXXXX XXXXXXXX
XXXXXXX XXXXXXXXXX
XXXXXXXX XXXXXX
(Signature page for First Amended and Restated Securityholders Agreement)
