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EXHIBIT 10.14
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MDCP ACQUISITIONS PLC
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AMENDED AND RESTATED
2002 MANAGEMENT EQUITY PLAN
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MDCP ACQUISITIONS PLC
AMENDED AND RESTATED
2002 MANAGEMENT EQUITY PLAN
1. TITLE AND PURPOSE. This plan shall be known as the Amended and Restated
MDCP Acquisitions plc 2002 Management Equity Plan (as amended, supplemented or
restated from time to time, this "Plan"). This Plan is intended to promote the
long-term growth and profitability of MDCP Acquisitions plc, an Irish public
limited company (the "Company"). Under this Plan, the Company will issue
Ordinary Shares, Class A Convertible Shares, Class B Convertible Shares, Class C
Convertible Shares and/or Class D Convertible Shares to Participants. This Plan
was adopted by the Board on September 3, 2002 and amends and restates in its
entirety that certain MDCP Acquisitions plc 2002 Management Equity Plan.
Capitalized terms used and not otherwise defined herein have the meanings
indicated for such terms in Section 10 of this Plan.
2. ADMINISTRATION. This Plan shall be administered by the Board. The Board
shall have full power to (a) establish and amend rules for the administration of
this Plan, but subject to the amendment provisions of this Plan and the
Management Equity Agreement, (b) correct any defect or omission and to reconcile
any inconsistency in this Plan or in the Management Equity Agreement to the
extent the Board deems desirable to carry into effect this Plan or the terms of
the Management Equity Agreement, and (c) delegate certain duties of the Board
hereunder to one or more agents to assist in the administration of this Plan.
The Company's chief executive officer (or, until November 1, 2002, the Company's
chief executive officer designate) shall (x) select Participants and shall
determine the number of Ordinary Shares and Convertible Shares to be sold to
each Participant, subject in each case to the approval of the Board (which
approval will not be unreasonably withheld, nor will a decision on its grant or
withholding be unreasonably delayed) and (y) determine to whom Convertible
Shares or Ordinary Shares repurchased from Participants shall be reissued (which
determination shall be made in consultation with the Board (which consultation
may occur after reissue in the case of individual recruits)); PROVIDED that all
such issuances or reissues to the Company's chairman, chief executive officer,
chief operations officer or chief financial officer shall require the consent of
the Board (which may be given or withheld in the Board's absolute discretion)
prior to such issuance or reissue. The Board may act by a majority of a quorum
present at a meeting.
3. SHARES RESERVED FOR THIS PLAN. An aggregate of 15,633,333 Ordinary
Shares shall be reserved for issuance pursuant to this Plan (as may be adjusted
(including with respect to the conversion of Convertible Shares) pursuant to the
following sentence, "Shares"), of which 8,133,333 Ordinary Shares (which shall
represent 10% of the sum of the issued Ordinary Shares in the capital of the
Company (on a fully-diluted basis after taking into account the conversion of
all Convertible Shares into Ordinary Shares) on the date for settlement of
consideration in connection with the Take-Over Offer plus any Ordinary Shares
reserved for issuance hereunder but not then issued) shall be reserved for
issuance upon conversion (either direct or indirect) of Class D Convertible
Shares. In order to prevent the dilution or enlargement of rights of Ordinary
Shares or Convertible Shares issued or sold under this Plan generally, in the
event of a reorganization, recapitalization, stock split, stock dividend,
combination of shares, merger, consolidation or other change in the Ordinary
Shares or Convertible Shares, the Board shall make appropriate changes (which
changes shall be subject to confirmation by the Company's auditors) in the
number and type of Ordinary Shares and Convertible Shares authorized by this
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Plan, the number and type of Ordinary Shares covered by conversion of the Class
D Convertible Shares, the number and type of Class D Convertible Shares covered
by conversion of the Class A Convertible Shares, Class B Convertible Shares and
Class C Convertible Shares, respectively, and the prices specified therein.
4. ISSUANCE OF ORDINARY SHARES AND CONVERTIBLE SHARES. All issuances of
Ordinary Shares and Convertible Shares pursuant to this Plan shall be pursuant
to and in accordance with a written agreement between the Company and the
Participants expressly issuing such Ordinary Shares or Convertible Shares (the
"Management Equity Agreement") and no Participant shall have any rights in
respect of any Ordinary Shares or Convertible Shares issued under this Plan
unless and until such Participant has executed and delivered the Management
Equity Agreement and has paid the purchase price and/or conversion price
therefor. The Management Equity Agreement shall provide, among other things, the
Company (and such other persons as the Company shall designate) the right to
repurchase from such Participant some or all of his or her Convertible Shares
(and Ordinary Shares issuable upon conversion of Convertible Shares) upon the
termination of such Participant's employment or service as an officer or
director with the Group Companies for any reason. If any Shares are repurchased
by the Company, such Shares shall again be available for reissuance under this
Plan.
5. CERTAIN TERMS OF ORDINARY SHARES AND CONVERTIBLE SHARES.
(a) PURCHASE PRICE. Class A Convertible Shares, Class B Convertible
Shares and Class C Convertible Shares issued under this Plan shall be issued for
a purchase price equal to E.001 per share. Ordinary Shares issued under this
Plan shall be issued for a purchase price equal to 100% of the fair market value
thereof as of the date of issuance.
(b) POWER TO ISSUE CONVERTIBLE SHARES. All Ordinary Shares and
Convertible Shares issued under this Plan shall be subject to such terms and
conditions set forth in this Plan, the Management Equity Agreement and the
Articles of Association. The Convertible Shares issued to Participants on or
before 120 days after the date that the take-over offer of MDCP Acquisitions I
for Jefferson Smurfit Group plc (the "Take-Over Offer") becomes or is declared
unconditional in all respects shall be issued to each such Participant in the
following proportions: 40% of such shares shall be Class A Convertible Shares,
40% of such shares shall be Class B Convertible Shares and 20% of such shares
shall be Class C Convertible Shares.
(c) CONVERSION PRICE. Each Class A Convertible Share, Class B
Convertible Share and each Class C Convertible Share shall, upon vesting,
convert into one Class D Convertible Share without payment of any conversion
price. The conversion price for each Class D Convertible Share into an Ordinary
Share shall be fixed by the Board, but shall be 100% of the fair market value of
an Ordinary Share on the date of issuance or sale to a Participant of any Class
A Convertible Share, Class B Convertible Share or Class C Convertible Share, as
applicable, less the purchase price for each Class A Convertible Share, Class B
Convertible Share or Class C Convertible Share, as applicable; PROVIDED that for
purposes of determining the conversion price of Convertible Shares issued on or
before January 17, 2003, 100% of the fair market value of an Ordinary Share
shall equal the result determined by dividing (i) the sum of (x) the aggregate
subscription price or purchase paid for Ordinary Shares of the Company acquired
by MDCP IV Global Investments LP, MDCP III Global Investments LP and MDSE III
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Global Investments LP (collectively, the "MDCP INVESTORS") on and prior to
September 17, 2002 plus (ii) the aggregate amount contributed to or invested in
the Company by the MDCP Investor on or prior to September 17, 2002 by (ii) the
number of Ordinary Shares owned by the MDCP Investors on September 17, 2002.
(d) VESTING OF CONVERTIBLE SHARES. Except as otherwise provided in the
Management Equity Agreement, (i) 40% of the Convertible Shares issued pursuant
to this Plan shall be Class A Convertible Shares which shall become time vested
in accordance with the schedule set forth in the Management Equity Agreement,
(ii) 40% of the Convertible Shares issued pursuant to this Plan shall be Class B
Convertible Shares which shall become vested upon achievement of certain
performance targets as set forth in the Management Equity Agreement, and (iii)
20% of the Convertible Shares issued pursuant to this Plan shall be Class C
Convertible Shares which shall become vested upon achievement of certain
performance targets as set forth in the Management Equity Agreement.
(e) CONVERSION PROCEDURES. Each Class A Convertible Share, Class B
Convertible Share and Class C Convertible Share shall automatically convert into
one Class D Convertible Share only upon the vesting of such Class A Convertible
Share, Class B Convertible Share or Class C Convertible Share, respectively, and
each Class D Convertible Share shall convert into one Ordinary Share only upon
payment of the conversion price for such Ordinary Share, delivery of the
certificate representing the Class D Convertible Shares being converted and
satisfaction of other conditions to conversion specified herein, in the
Management Equity Agreement and the Company's Articles of Association. Each
Class D Convertible Share shall be converted into an Ordinary Share by written
notice of the holder thereof to the Company (to the attention of the Chief
Executive Officer or Secretary) in the manner provided by the Management Equity
Agreement. Any holder of any Class D Convertible Shares shall be required, as a
condition precedent to such holder's conversion of such Class D Convertible
Shares at such person's expense, to supply the Board with such evidence,
representations, agreements or assurances as necessary in order to confirm the
propriety of the sale of securities by reason of such conversion under
applicable securities laws or requirements of any applicable governmental
authority, and the Company shall not be obligated to issue any Ordinary Shares
issuable upon conversion of any Class D Convertible Shares until all such
evidence, representations, agreements and assurances shall have been supplied to
and reviewed by the Board. No holder of Convertible Shares shall have any rights
as a holder of Ordinary Shares under this Plan until and unless such Ordinary
Shares are issued and delivered to such holder of Convertible Shares. The
conversion price paid upon the conversion of any Convertible Share granted under
this Plan shall be added to the general funds of the Company and may be used for
any proper corporate purpose.
(f) CONVERSION. No Convertible Share issued hereunder or under the
Management Equity Agreement, or upon conversion of any other class of
Convertible Shares, shall be convertible after the seventh anniversary of the
Underlying Date of Issuance. When used herein, the "Underlying Date of Issuance"
means (i) with respect to any Class A Convertible Share, Class B Convertible
Share or Class C Convertible Share, the date of issuance for such Convertible
Share and (ii) with respect to any Class D Convertible Share, the date of
issuance for the Class A Convertible Share, the Class B Convertible Share or the
Class C Convertible Share from which such Class D Convertible Share has been
converted.
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6. ADDITIONAL PROVISIONS.
(a) LISTING, REGISTRATION AND COMPLIANCE WITH LAWS AND REGULATIONS.
All Ordinary Shares and/or Convertible Shares issued pursuant to this Plan shall
be subject to the requirement that if the listing, registration or qualification
upon any securities exchange or under any state or federal securities or other
law or regulation of such Ordinary Shares or any Convertible Shares or the
consent or approval of any governmental regulatory body, is necessary as a
condition to or in connection with the issuance or conversion hereunder of such
Ordinary Shares or Convertible Shares, no such Ordinary Shares or Convertible
Shares may be issued or converted (as the case may be) unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board acting in good
faith; PROVIDED that to the extent such issuance or conversion is prohibited or
delayed as a result thereof, any time limit on issuance or conversion expiring
during such prohibited period shall automatically be extended until the 30th day
after the expiration of such period. The recipient of such Ordinary Shares or
Convertible Shares will supply the Company with such certificates,
representations and information as the Company shall request and shall otherwise
cooperate with the Company in obtaining such listing, registration,
qualification, consent or approval. In the case of officers and other persons
subject to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or short swing profits laws, rules or regulations,
the Board may at any time impose any limitations upon the conversion of
Convertible Shares that are necessary in order to comply with such ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and short swing profits laws, rules and regulations. If the Company, as
part of an offering of securities or otherwise, finds it desirable because of
federal or state regulatory requirements to reduce the period during which any
Convertible Shares may be converted, the Board may, in its discretion and
without the holders' consent, so reduce such period on not less than 10 days'
written notice to the holders thereof. Without limiting rights that any
Participant has pursuant to any other agreement to which such Participant is a
party, nothing contained herein shall obligate the Company to register any
Ordinary Shares, Convertible Shares or other securities under applicable
securities laws.
(b) NON-TRANSFERABILITY. The Ordinary Shares and Convertible Shares
issued under this Plan are subject to restrictions on transfer set forth in the
Management Equity Agreement.
(c) TAXES. The Company shall be entitled, if necessary or desirable,
to withhold (or secure or require payment from a Participant in lieu of
withholding) the amount of any withholding or other tax due with respect to any
amount payable and/or shares issuable under this Plan, and the Company may defer
such payment or issuance unless indemnified to its satisfaction.
(d) NO RIGHT TO EMPLOYMENT CONFERRED.
(i) Nothing in this Plan or (in the absence of an express provision to the
contrary) in the Management Equity Agreement shall confer on any
person any right to continue in the employment of, or to serve as an
officer or director for, any Group Company or interfere in any way
with the right of any Group Company to terminate such person's
employment at any time.
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(ii) Neither this Plan nor the Management Equity Agreement shall form part
of any contract of employment or contract for services between any
Group Company and any Participant;
(iii) The benefit to each Participant of participation in this Agreement
and the Management Equity Plan shall not form any part of his
remuneration or count as his remuneration for any purpose and shall
not be pensionable; and
(iv) If a Participant ceases to be employed by any Group Company, he shall
not be entitled to compensation for the loss of any right or benefit
or prospective right or benefit under this Plan and the Management
Equity Agreement whether by way of damages for unfair dismissal,
wrongful dismissal, breach of contract or otherwise.
7. AMENDMENT. At any time the Board may make such administrative
additions or amendments as it deems advisable under this Plan. If any addition
or amendment is not administrative, such amendment shall be effective if it has
received the prior written consent of (a) the Board and (b) (i) as long as ▇▇▇▇
▇▇▇▇▇▇ serves as the chief executive officer of the Company, ▇▇▇▇ ▇▇▇▇▇▇, (ii)
after ▇▇▇▇ ▇▇▇▇▇▇ no longer serves as the chief executive officer of the
Company, any of Dr. ▇▇▇▇▇▇▇ ▇.▇. Smurfit, ▇▇▇▇▇▇▇ ▇.▇. Smurfit or ▇▇▇ ▇. ▇▇▇▇▇▇,
as long as any such Person remains a senior executive officer of the Company, or
(iii) the holders of a majority of the Convertible Shares (and Ordinary Shares
issued upon conversion of the Convertible Shares) issued hereunder that are then
outstanding.
8. TERMINATION. This Plan shall terminate on December 31, 2008. No
securities shall be issued under this Plan after this Plan's termination, but
the termination of this Plan shall not have any other effect.
9. FINANCIAL STATEMENTS. Upon the reasonable request to the Chief
Executive Officer or the Board of any Participant then holding Ordinary Shares
or Convertible Shares issued hereunder, the Company will provide or make
available for inspection by such Participant copies of the annual audited
financial statements of the Company.
10. DEFINITIONS.
(a) "ASSOCIATED COMPANY" means any company having an Equity Share
Capital of which not less than 20% in nominal value is beneficially owned by any
Group Company.
(b) "BOARD" means the Company's Compensation Committee or if a
Compensation Committee no longer exists, the Company's Board of Directors.
(c) "CLASS A CONVERTIBLE SHARES" has the meaning given to such
term in the Company's Articles of Association.
(d) "CLASS B CONVERTIBLE SHARES" has the meaning given to such
term in the Company's Articles of Association.
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(e) "CLASS C CONVERTIBLE SHARES" has the meaning given to such
term in the Company's Articles of Association.
(f) "CLASS D CONVERTIBLE SHARES" has the meaning given to such
term in the Company's Articles of Association.
(g) "COMPANY" as applied as of any given time shall mean MDCP
Acquisitions plc, except that if prior to the given time any corporation or
other entity shall have acquired all or a substantial part of the assets of the
Company (as herein defined), and shall have agreed to assume the obligations of
the Company under this Plan, then such corporation or other entity shall be
deemed to be the Company at the given time.
(h) "CONVERTIBLE SHARES" means, collectively, Class A Convertible
Shares, Class B Convertible Shares, Class C Convertible Shares and Class D
Convertible Shares.
(i) "EQUITY SHARE CAPITAL" shall have the meaning assigned in
Section 155 of the Companies Act, 1963.
(j) "GROUP COMPANIES" means the Company, Jefferson Smurfit Group
plc and their respective Subsidiaries and Associated Companies and "GROUP
COMPANY" means any of the Group Companies.
(k) "PARTICIPANT" means any eligible employee, director or
officer of the Company, Jefferson Smurfit Group plc or any of their respective
Subsidiaries.
(l) "PERSON" means an individual, a partnership, a limited
liability company an unlimited liability company, a company limited by
guarantee, a corporation, 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.
(m) "SUBSIDIARY" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, not less than 50% of the total
voting power 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 the managing general partner of such
limited liability company, partnership, association or other business entity.
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