EXECUTIVE SECURITIES AGREEMENT
(___________)
THIS EXECUTIVE SECURITIES AGREEMENT (this "AGREEMENT") is made as
of ___________, by and between CompleTel LLC, a Delaware limited liability
company (the "COMPANY"), and ___________ ("EXECUTIVE"). Capitalized terms
used but not otherwise defined herein have the meanings ascribed to such
terms in Section 8 hereof.
This Agreement contemplates a transaction in which, pursuant to the
terms and subject to the conditions set forth herein, Executive will purchase
Common Units of the Company. All of such Executive Securities are subject to
time vesting as set forth herein. In addition to time vesting, a portion of
such Executive Securities are also subject to performance vesting pursuant to
the terms of the Performance Vesting Agreement. All of the Executive
Securities held by Executive or his transferees are subject to certain
restrictions on transfer and, upon Executive's ceasing to be employed by the
Company or its Subsidiaries, certain repurchase options, each as set forth
herein. In addition, the Executive Securities are subject to certain voting
agreements and other provisions set forth herein and in the Securityholders
Agreement. The Company's Subsidiary _____________ ("COMPLETEL")
[has entered/intends] as soon as reasonably possible to enter into an
Employment Agreement with Executive as its ________________ (the "EMPLOYMENT
AGREEMENT").
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. PURCHASE OF EXECUTIVE SECURITIES.
(a) PURCHASE. The Company agrees to issue and sell to Executive
and Executive agrees to purchase from the Company, upon execution of this
Agreement and payment of the purchase price, ______ Common Units (of which
_____ shall not, and ____ shall, be subject to performance vesting under the
terms of the Performance Vesting Agreement), each having the rights and
preferences set forth with respect thereto in the LLC Agreement. The
aggregate purchase price for the Executive Securities is $_____, which amount
shall be paid to the Company, in U.S. Dollars, by cashier's or certified
check, or by wire transfer.
(b) REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. In connection
with the purchase and issuance of the Executive Securities hereunder,
Executive represents and warrants to the Company that:
(i) The Executive Securities to be acquired by Executive
pursuant to this Agreement shall be acquired for Executive's own account and
not with a view to, or intention of, distribution thereof in violation of the
Securities Act or any applicable state securities laws, and the Executive
Securities shall not be disposed of in contravention of the Securities Act or
any applicable state securities laws.
(ii) Executive is sophisticated in financial matters and is
able to evaluate the risks and benefits of the investment in the Executive
Securities.
(iii) Executive is able to bear the economic risk of his
investment in the Executive Securities for an indefinite period of time and
is aware that transfer of the Executive Securities may not be possible
because (A) such transfer is subject to contractual restrictions on transfer
set forth herein, in the Securityholders Agreement, and in the Performance
Vesting Agreement, and (B) the Executive Securities have not been registered
under the Securities Act or any applicable state securities laws and,
therefore, cannot be sold unless subsequently registered under the Securities
Act and such applicable state securities laws or an exemption from such
registration is available.
(iv) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of the
Executive Securities issued hereunder and has had full access to such other
information concerning the Company as he has requested.
(v) This Agreement, the LLC Agreement, the Securityholders
Agreement, the Registration Agreement, the Performance Vesting Agreement, the
Joinder Agreement, and the other agreements contemplated thereby of even date
therewith constitute the legal, valid and binding obligations of Executive,
enforceable in accordance with their terms, and the execution, delivery and
performance of such agreements by Executive and Executive's employment by the
Company and its Subsidiaries do not and shall not conflict with, violate or
cause a breach of any agreement, contract or instrument to which Executive is
a party or by which he is bound or any judgment, order or decree to which
Executive is subject.
(c) ACKNOWLEDGMENT BY EXECUTIVE. As an inducement to the Company
to enter into this Agreement, and as a condition thereto, Executive
acknowledges and agrees that this Agreement and the purchase of the Executive
Securities hereunder are not a condition to his employment by the Company or
any Subsidiary and that none of the execution and delivery of this Agreement,
the issuance of the Executive Securities to Executive, or Executive's status
as a holder of Executive Securities, shall:
(i) entitle Executive to remain employed by the Company or
its Subsidiaries or affect the right of the Company or its Subsidiaries to
terminate Executive's employment at any time and for any reason as permitted
by the Employment Agreement; or
(ii) impose upon the Company any duty or obligation to
disclose to Executive, or create in Executive any right to be advised of, any
material information regarding the Company and its Subsidiaries at any time
prior to, upon or in connection with the repurchase of any Executive
Securities upon the termination of Executive's employment by the Company or
its Subsidiaries or as otherwise provided hereunder.
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2. TIME VESTING OF EXECUTIVE SECURITIES.
(a) TIME VESTING SCHEDULE. Except as otherwise provided herein,
an amount of Un-Time-Vested Securities (as defined below) shall time vest on
December 31, ____, on each of the first three anniversaries of such date, and
on the fourth anniversary of the date hereof, such that the Executive
Securities shall be time vested on each such date in accordance with the
following schedule:
--------------------------------------------------------------------------------
Cumulative Percentage of
Date Executive Securities
Time Vested on Such Date
--------------------------------------------------------------------------------
December 31, ____
--------------------------------------------------------------------------------
December 31, ____
--------------------------------------------------------------------------------
December 31, ____
--------------------------------------------------------------------------------
December 31, ____
--------------------------------------------------------------------------------
Fourth anniversary of the date hereof 100%
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Notwithstanding the foregoing sentence, the above time vesting schedule shall
cease and no Un-Time-Vested Securities (as defined below) shall time vest
after the date on which Executive's employment with the Company or its
Subsidiaries terminates voluntarily, involuntarily, with or without cause,
for any reason or for no reason. Executive Securities which have become time
vested pursuant to this Section 2 are referred to herein as "TIME-VESTED
SECURITIES," and all other Executive Securities are referred to herein as
"UN-TIME-VESTED SECURITIES."
(b) 100% ACCELERATION UPON A QUALIFIED SALE OF THE COMPANY.
All Un-Time-Vested Securities shall become Time-Vested Securities in
connection with the consummation of a Qualified Sale of the Company, so long
as Executive is employed by the Company or any of its Subsidiaries on the
date of such sale. For purposes hereof, a "QUALIFIED SALE OF THE COMPANY"
means a Sale of the Company in which the consideration paid in such sale for
at least 50% of the Company's outstanding equity securities or of the
Company's consolidated assets consists of cash and/or publicly traded equity
securities (E.G., 66.7% of the consideration for such Sale of the Company
would have to consist of cash and/or publicly traded equity securities if
only 75% of the Company's outstanding equity securities were sold in such
transaction).
(c) 100% ACCELERATION UPON A SALE OF THE COMPANY (OTHER THAN
A QUALIFIED SALE OF THE COMPANY) WITH NO CONTINUING COMPARABLE TIME VESTING
ARRANGEMENT. In the event of a Sale of the Company (other than a Qualified
Sale of the Company), the above vesting schedule will not accelerate as a
result of such Sale of the Company; PROVIDED that if the surviving or
acquiring Person(s) in such Sale of the Company fails or declines either to
(i) continue after such Sale of the Company to allow Executive to hold his
Un-Time-Vested Securities subject to the time vesting and repurchase
provisions hereof, or (ii) grant to Executive the number of securities in the
surviving or acquiring Person(s) that Executive would have received in such
Sale of the Company in exchange
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for Executive's Un-Time-Vested Securities if such securities had instead been
Time-Vested Securities, subject to ongoing time vesting and repurchase
arrangements substantially comparable to those set forth herein (as such
comparability is determined in good faith by the Board), then all
Un-Time-Vested Securities shall become Time-Vested Securities in connection
with the consummation of such Sale of the Company, so long as Executive is
employed by the Company or any of its Subsidiaries on the date of such sale.
(d) ONE-YEAR ACCELERATION UPON A QUALIFIED PUBLIC OFFERING.
Upon the consummation of a Qualified Public Offering, and so long as
Executive is employed by the Company or any of its Subsidiaries on the
closing date of such offering, there will time vest the amount of
Un-Time-Vested Securities which were scheduled to time vest within the 365
days following such closing date (and the remaining Un-Time-Vested
Securities, if any, shall continue to time vest in accordance with paragraph
(a) above, such that the time vesting schedule set forth in paragraph (a)
above shall have been effectively accelerated by one year).
(e) TIME VESTING AND PERFORMANCE VESTING.
(i) INDEPENDENCE OF TIME AND PERFORMANCE VESTING. The
Company and Executive acknowledge that the Executive Securities constituting
Performance Vesting Securities are subject, in addition to time vesting under
this Section 2, to performance vesting as set forth in the Performance
Vesting Agreement. The time vesting provisions of this Section 2 operate
independently of the performance vesting provisions under the Performance
Vesting Agreement. As such, (A) the terms "Time-Vested Securities" and
"Un-Time-Vested Securities" as used herein refer only to whether particular
Executive Securities have time vested in accordance with the terms of this
Section 2 and do not indicate whether such Executive Securities that
constitute Performance Vesting Securities have or have not also performance
vested under the Performance Vesting Agreement, and (B) the terms
"Performance-Vested Securities" and "Un-Performance-Vested Securities" (each
defined below) as used herein refer only to whether particular Performance
Vesting Securities have performance vested in accordance with the terms of
the Performance Vesting Agreement and do not indicate whether such
Performance Vesting Securities have or have not also time vested under this
Section 2.
(ii) APPLICATION OF TIME VESTING. Whenever
Un-Time-Vested Securities time vest pursuant to the terms of this Section 2,
the Un-Time-Vested Securities that are not Performance Vesting Securities, on
the one hand, and the Un-Time-Vested Securities that are Performance Vesting
Securities, on the other hand, will each time vest on a pro rata basis based
on the number of each such type of securities then outstanding. Of such
Un-Time-Vested Securities constituting Performance Vesting Securities which
are to vest, the Un-Time-Vested Securities that are Performance-Vested
Securities shall be time vested prior to any Un-Time-Vested Securities that
are Un-Performance-Vested Securities being time vested.
(iii) APPLICATION OF PERFORMANCE VESTING. Whenever
Un-Performance-Vested Securities performance vest pursuant to the terms of
the Performance Vesting Agreement, the Un-Performance-Vested Securities that
are Time-Vested Securities shall be performance vested
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prior to any Un-Performance-Vested Securities that are Un-Time-Vested
Securities being performance vested.
3. REPURCHASE OPTIONS
(a) REPURCHASE OPTION UPON CESSATION OF EMPLOYMENT. If
Executive ceases voluntarily or involuntarily, with or without cause, to be
employed by the Company or its Subsidiaries for any reason or for no reason
(such cessation of employment, a "REPURCHASE EVENT"), the Company (by action
of the Board) may elect to purchase all or any portion of the Executive
Securities then in existence (whether held by Executive or one or more of
Executive's transferees) by delivering a Repurchase Notice to the holder or
holders of the Executive Securities at any time within 30 days after the
Repurchase Event.
(b) ASSIGNMENT OF COMPANY'S REPURCHASE RIGHTS. Upon any
Repurchase Event, the Company (by action of the Board) shall have the right
to assign all or any portion of its repurchase rights hereunder to one or
more management or other key employees (each a "KEY EMPLOYEE") of the Company
or any of its Subsidiaries; PROVIDED that the Company may not assign its
rights under Section 3(e) below to pay all or part of the Repurchase Price
(as defined below) for Executive Securities repurchased hereunder by (i)
offsetting debts owed by Executive to the Company or (ii) issuing Class A
Senior Units or a promissory note. If the Company assigns any of its
repurchase rights to such a Key Employee, and such Key Employee fails to
exercise such assigned repurchase rights, the Company shall once again have
the right to exercise (or assign) such rights.
(c) REPURCHASE PRICE. The repurchase price (the "REPURCHASE
PRICE") for any Time-Vested Securities to be repurchased hereunder shall be
the Fair Market Value of such securities on the date of the Repurchase Event
giving rise to such repurchase. The Repurchase Price of any Un-Time-Vested
Securities to be repurchased hereunder shall be the Original Cost of such
securities (with securities having a lower Original Cost being subject to
repurchase prior to securities with a higher Original Cost).
(d) REPURCHASE NOTICE. Each "REPURCHASE NOTICE" delivered
hereunder shall set forth the amount, type, and class of Executive Securities
(including, if applicable, the amount of Un-Time-Vested Securities and/or
Time-Vested Securities) to be acquired from each such holder and the
aggregate consideration to be paid for such Executive Securities, and the
time and place for closing of the repurchase (which date shall not be more
than 60 days nor less than 10 days after the delivery of such Repurchase
Notice). The Executive Securities to be repurchased pursuant to any
Repurchase Notice shall first be satisfied to the extent possible from the
Executive Securities held by Executive at the time of delivery of such
Repurchase Notice. If the amount of Executive Securities then held by
Executive is less than the total amount of Executive Securities that have
been elected to be purchased pursuant to such Repurchase Notice, the electing
party or parties shall purchase the remaining securities elected to be
purchased from the other holder(s) of Executive Securities, pro rata
according to the amount of Executive Securities held of record by each such
other holder at the time of delivery of such Repurchase Notice. The amount
of Un-Time-Vested Securities and Time-Vested Securities repurchased hereunder
shall be deemed to be allocated among Executive
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and the other holders of repurchased Executive Securities (if any) pro rata
according to the amount of Executive Securities to be purchased from such
persons.
(e) CLOSING OF EACH REPURCHASE. The closing of any
repurchase of Executive Securities hereunder shall occur at the date and time
specified in the applicable Repurchase Notice with respect to such
repurchase. At each such closing, the holders of Executive Securities shall
deliver all certificates (if any exist) evidencing the Executive Securities
to be repurchased at such closing to the purchaser or purchasers thereof, and
such purchaser or purchasers shall pay for the Executive Securities to be
purchased at such closing by delivery of a check or wire transfer of
immediately available funds in the aggregate amount of the Repurchase Price
for such Executive Securities; PROVIDED that if the Company is to purchase
any Executive Securities from Executive at such closing, the Company may
elect (by action of the Board) to pay all or any portion of the Repurchase
Price for such Executive Securities by setting off against such Repurchase
Price any bona fide debts owed (regardless of whether then due and payable)
by Executive to the Company or any of its Subsidiaries; AND PROVIDED FURTHER
that if the Company is to purchase any Executive Securities at such closing,
the Company may elect (by action of the Board) to pay all or any portion of
the Repurchase Price for such Executive Securities as follows:
(i) in accordance with the LLC Agreement, by issuing in
exchange for such Executive Securities an equal number of Class A Senior
Units, and each such Class A Senior Unit issued in connection with such
repurchase shall be deemed as of the date of such repurchase to have capital
contributions to the Company made with respect to such Class A Senior Unit
equal to the Repurchase Price for the Executive Securities in exchange for
which such Class A Senior Unit was issued; or
(ii) if the Company has prior to the date of such
repurchase converted into a corporation or other corporate form, in the form
of a promissory note, which promissory note shall be subordinated to all of
the Company's senior debt obligations either then or thereafter incurred,
shall earn simple annual interest at a rate of 8% per annum, shall have all
principal and accrued interest due and payable upon maturity, and shall
mature upon the earliest to occur of the Company's initial Public Offering
(if such initial Public Offering has not occurred prior to the issuance of
such promissory note), a Sale of the Company, or the fourth anniversary of
the issuance of such promissory note.
The purchasers of Executive Securities hereunder shall be entitled
to receive customary representations and warranties from the sellers,
including representations and warranties regarding good title to such
securities, free and clear of any liens or encumbrances.
(f) RESTRICTIONS. Notwithstanding anything to the contrary
contained in this Agreement, all repurchases of Executive Securities by the
Company shall be subject to applicable restrictions contained in the Delaware
General Corporation Law, the Delaware Limited Liability Company Act and in
the Company's and its Subsidiaries' debt and equity financing agreements. If
any such restrictions prohibit the repurchase of Executive Securities
hereunder which the Company is otherwise entitled to make, the time periods
provided in this paragraph 3 shall be suspended, and
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the Company may make such repurchases as soon as it is permitted to do so
under such restrictions, unless by such time such repurchase option has
terminated pursuant to paragraph (g) below.
(g) TERMINATION OF REPURCHASE OPTIONS. The repurchase
provisions under this paragraph 3 (and the rights and obligations created
thereby) shall cease to apply to all Time-Vested Securities upon the
consummation of a Qualified Sale of the Company or a Qualified Public
Offering (it being understood that (i) such provisions, rights, and
obligations shall continue to apply to all Un-Time-Vested Securities until
such time as they become Time-Vested Securities in accordance with the terms
hereof, and (ii) the forfeiture provisions of the Performance Vesting
Agreement shall continue to apply to all Un-Performance-Vested Securities
until such time as they become Performance-Vested Securities in accordance
with the terms of the Performance Vesting Agreement).
4. RESTRICTIONS ON TRANSFER.
(a) OPINION OF VALID TRANSFER. In addition to any other
restrictions on transfer imposed by this Agreement, the Securityholders
Agreement, the Performance Vesting Agreement, or the LLC Agreement, no holder
of Executive Securities may sell, transfer or dispose of any Executive
Securities (except pursuant to an effective registration statement under the
Securities Act) without first delivering to the Company an opinion of counsel
(reasonably acceptable in form and substance to the Company) that neither
registration nor qualification under the Securities Act or applicable state
securities laws is required in connection with such transfer.
(b) RESTRICTIVE LEGEND. The certificates representing
Executive Securities shall bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON ________________, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, VESTING
PROVISIONS, AND REPURCHASE OPTIONS SET FORTH IN AN
EXECUTIVE SECURITIES AGREEMENT BETWEEN THE ISSUER OF SUCH
SECURITIES (THE "ISSUER") AND THE INITIAL HOLDER OF SUCH
SECURITIES. 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 any
securities which cease to be Executive Securities.
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(c) RETENTION OF EXECUTIVE SECURITIES.
(i) Executive shall not 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
Executive Securities (a "TRANSFER"), except (x) with respect to
Un-Performance-Vested Securities, pursuant to the repurchase provisions of
Section 3 hereof or the forfeiture provisions of the Performance Vesting
Agreement (each, an "EXEMPT TRANSFER"), or (y) with respect to all other
Executive Securities, pursuant to (A) the repurchase provisions of Section 3
hereof, (B) the "Participation Rights" provisions set forth in the
Securityholders Agreement, or (C) a Sale of the Company (each of (A) through
(C), an "EXEMPT TRANSFER").
(ii) The restrictions contained in this paragraph (c)
shall not apply with respect to transfers of Executive Securities (other than
Un-Performance-Vested Securities) (A) pursuant to applicable laws of descent
and distribution or (B) among Executive's Family Group; PROVIDED that the
restrictions contained in this paragraph shall continue to be applicable to
the Executive Securities after any such Transfer, the transferees of such
Executive Securities shall have agreed in writing to be bound by the
provisions of this Agreement with respect to the Executive Securities so
transferred, and (prior to the death of Executive) each such transferee of
Executive Securities shall have entered into proxies and other agreements
satisfactory to the holders of a majority of the Purchaser Securities
pursuant to which Executive shall have the sole right to vote such Executive
Securities for all purposes (subject to any applicable voting agreements set
forth herein or in the Securityholders Agreement). For purposes of this
Agreement, "FAMILY GROUP" means Executive's spouse, siblings and descendants
(whether natural or adopted) and any of such descendants' spouses, any trust
which at the time of such Transfer and at all times thereafter is and remains
solely for the benefit of Executive and/or Executive's spouse, siblings,
and/or descendants and/or such descendants' spouses, and any family
partnership the partners of which consist solely of Executive, such spouse,
such siblings, such descendants, such descendants' spouses, and/or such
trusts.
(iii) The restrictions on the transfer of Executive
Securities set forth in this paragraph (c) shall continue with respect to
each Executive Security following any Transfer thereof (other than an Exempt
Transfer); PROVIDED that upon the consummation of a Qualified Public
Offering, the restrictions set forth in this paragraph (c) shall thereafter
cease to apply to all Fully Vested Securities, it being understood that such
restrictions shall continue to apply to all other Executive Securities until
such time as they become Fully Vested Securities.
5. CONFIDENTIALITY.
(a) NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
Executive shall not disclose or use at any time, either during his employment
with the Company or its Subsidiaries or thereafter, any Confidential
Information (as defined below) of which Executive is or becomes aware,
whether or not such information is developed by him, except to the extent
that such disclosure or use is directly related to and required by
Executive's performance of duties assigned to Executive by the Company or its
Subsidiaries. Executive shall take all appropriate steps to safeguard
Confidential Information and to protect it against disclosure, misuse,
espionage, loss and theft. As used in this
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Agreement, the term "CONFIDENTIAL INFORMATION" means information that is not
generally known to the public and that is used, developed or obtained by the
Company or its Subsidiaries in connection with their business, including but
not limited to (i) products or services, (ii) fees, costs and pricing
structures, (iii) designs, (iv) analysis, (v) drawings, photographs and
reports, (vi) computer software, including operating systems, applications
and program listings, (vii) flow charts, manuals and documentation, (viii)
data bases, (ix) accounting and business methods, (x) inventions, devices,
new developments, methods and processes, whether patentable or unpatentable
and whether or not reduced to practice, (xi) customer and client information
(including customer or client lists), (xii) copyrightable works, (xiv) all
technology and trade secrets, (xv) business plans and financial models, and
(xvi) all similar and related information in whatever form. Confidential
Information shall not include any information that has been published in a
form generally available to the public prior to the date Executive proposes
to disclose or use such information. Information shall not be deemed to have
been published merely because individual portions of the information have
been separately published, but only if all material features constituting
such information have been published in combination.
(b) THE COMPANY'S OWNERSHIP OF INTELLECTUAL PROPERTY.
(i) ACKNOWLEDGMENT OF COMPANY OWNERSHIP. If
Executive as part of his activities on behalf of the Company or its
Subsidiaries generates, authors or contributes to any invention, design, new
development, device, product, method or process (whether or not patentable or
reduced to practice or constituting Confidential Information), any
copyrightable work (whether or not constituting Confidential Information) or
any other form of Confidential Information relating directly or indirectly to
the Company's and its Subsidiaries' business as now or hereafter conducted
(collectively, "INTELLECTUAL PROPERTY"), Executive acknowledges that such
Intellectual Property is the exclusive property of the Company and hereby
assigns all right, title and interest in and to such Intellectual Property to
the Company. Any copyrightable work prepared in whole or in part by
Executive will be deemed "a work made for hire" under Section 201(b) of the
1976 Copyright Act, and the Company shall own all of the rights comprised by
the copyright therein. Executive shall promptly and fully disclose all
Intellectual Property to the Company and shall cooperate with the Company to
protect the Company's interests in and rights to such Intellectual Property
(including, without limitation, providing reasonable assistance in securing
patent protection and copyright registrations and executing all documents as
reasonably requested by the Company, whether such requests occur prior to or
after termination of Executive's employment by the Company).
(ii) EXECUTIVE INVENTION. Executive understands that
paragraph (b)(i) of this Section regarding the Company's ownership of
Intellectual Property does not apply to any invention for which no equipment,
supplies, facilities or trade secret information of the Company were used and
which was developed entirely on Executive's own time, unless (i) the
invention relates to the business of the Company or any of its Subsidiaries
or to their actual or demonstrably anticipated research or development or
(ii) the invention results from any work performed by Executive for the
Company or any of its Subsidiaries.
(c) DELIVERY OF MATERIALS UPON TERMINATION OF EMPLOYMENT.
As requested by the Company from time to time and upon the termination of
Executive's employment with the Company
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and its Subsidiaries for any reason, Executive shall promptly deliver to the
Company all copies and embodiments, in whatever form, of all Confidential
Information and Intellectual Property in Executive's possession or within his
control (including, but not limited to, written records, notes, photographs,
manuals, notebooks, documentation, program listings, flow charts, magnetic
media, disks, diskettes, tapes and all other materials containing or
constituting any Confidential Information or Intellectual Property)
irrespective of the location or form of such material and, if requested by
the Company, shall provide the Company with written confirmation that all
such materials have been delivered to the Company.
6. NONCOMPETITION.
(a) COVENANTS. During the term of this Agreement and for a
period of ________ after termination of this Agreement (the "Noncompetition
Period"), Executive shall not, directly or indirectly, as an officer,
director, employee, consultant, owner, shareholder, adviser, joint venturer,
or otherwise, compete with the Company within the United Kingdom (the
"Protected Region"): (i) in construction and operation of competitive local
exchange telecommunications systems; or (ii) in any other line of business in
which the Company was engaged at any time during the term of this Agreement;
or (iii) in any other line of business into which the Company during the term
of Executive's employment, formed an intention to enter during the term of
Executive's obligation not to compete, and which the Company's Board has
disclosed to Executive in writing within ten (10) days following the
termination of this Agreement. This covenant shall not preclude Executive
from owning less than two percent (2%) of the securities of any competitor of
the Company if such securities are publicly traded on a nationally recognized
stock exchange or over-the-counter market.
(b) ACKNOWLEDGMENTS. Executive acknowledges that the
foregoing geographic restriction on competition is fair and reasonable, given
the geographic scope of the Company's business operations and the nature of
Executive's position with the Company. Executive also acknowledges that
while employed by the Company Executive will have access to information that
would be valuable or useful to the Company's competitors, and therefore
acknowledges that the foregoing restrictions on Executive's future employment
and business activities are fair and reasonable. Executive acknowledges and
is prepared for the possibility that Executive's standard of living may be
reduced during the Noncompetition Period, and assumes and accepts any risk
associated with that possibility.
(c) JUDICIAL MODIFICATION. If the final judgment of a court
of competent jurisdiction declares that any term or provision of this Section
is invalid or unenforceable, the parties agree that the court making the
determination of invalidity or unenforceability shall have the power to
reduce the scope, duration, or geographic area of the term or provision, to
delete specific words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as
so modified after the expiration of the time within which the judgment or
decision may be appealed.
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7. NONSOLICITATION. During the term of this Agreement and
for a period of _______ months after termination of this Agreement, Executive
shall not without the Company's prior written consent, directly or
indirectly:
(a) cause or attempt to cause any employee, agent or
contractor of the Company or any Company affiliate, to terminate his or her
employment, agency or contractor relationship with Company or any Company
affiliate; interfere or attempt to interfere with the relationship between
the Company and any employee, contractor or agent of the Company; hire or
attempt to hire any employee, agent or contractor of the Company or any
Company affiliate; or conduct business of any kind with any Company
contractor.
(b) solicit business from or conduct business with any
customer or client served by the Company; or interfere or attempt to
interfere with any transaction, agreement or business relationship in which
the Company or any affiliate was involved.
8. DEFINITIONS.
"AGREEMENT" has the meaning set forth 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.
"CAUSE" means (A) any act by Executive, where in respect of
such act Executive is ultimately convicted or enters a plea of guilty or NOLO
CONTENDERE to a felony (or crime of similar gravity under the laws of another
jurisdiction), (B) Executive's willful misconduct, gross negligence,
perpetration of or participation in a fraud, in each case where such acts are
materially injurious to the Company or any of its Subsidiaries or any
affiliate thereof, (C) Executive's breach in any material respect of the
provisions of Section 5 (Confidentiality), Section 6 (Noncompetition) or
Section 7 (Nonsolicitation) or (D) Executive's nonperformance including
without limitation, failure to perform his duties as directed by the Company
or failure to achieve specific performance objectives established by the
Company.
"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 C SENIOR UNITS" means the Class C Senior Units of the
Company, having the rights and preferences set forth in the LLC Agreement.
"COMMON UNITS" means the Common Units of the Company, having
the rights and preferences set forth in the LLC Agreement.
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"COMPANY" has the meaning set forth in the preamble.
"CONFIDENTIAL INFORMATION" has the meaning set forth in
Section 5(a).
"DISABILITY" means any illness, accident, injury, physical or
mental incapacity or other disability, where such condition has rendered, or
is expected to render (as determined in the good faith judgment of the
Board), Executive unable or unfit to perform effectively the duties and
obligations of his employment or to participate effectively and actively in
the management of the Company for a period of at least 90 days.
"EQUITY PURCHASE AGREEMENT" means the equity purchase
agreement dated May 18, 1998, by and among the Company and certain investors,
as amended from time to time in accordance with the terms thereof.
"EXECUTIVE" has the meaning set forth in the preamble.
"EXECUTIVE SECURITIES" means (i) the Common Units issued to
Executive hereunder and (ii) any securities issued directly or indirectly
with respect to any Executive 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;
PROVIDED that Executive Securities shall not include any Senior Units. As to
any particular securities constituting Executive Securities, such securities
shall cease to be Executive 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 pursuant to the
provisions hereof or forfeited pursuant to the provisions of the Performance
Vesting Agreement. "Executive Securities" refers only to Executive
Securities under this Agreement and does not in any way refer to any
securities referred to as Executive Securities under any other executive
securities agreement between the Company and a Key Employee of the Company or
its Subsidiaries.
"EXEMPT TRANSFER" has the meaning set forth in Section
4(c)(i).
"FAIR MARKET VALUE" as to any Executive Securities on any
particular date, shall mean the fair market value of such securities as of
such date, as determined in good faith by the Board. With respect to any
Executive Securities that are Un-Performance-Vested Securities, the Board
shall in determining the Fair Market Value of such securities reflect (x) the
expected market value of such securities at such future time as such
securities are expected to become performance vested under the terms of the
Performance Vesting Agreement, appropriately discounted to its present value
as of the relevant valuation date based upon the amount of time from the
relevant valuation date until the date on which such Un-Performance-Vested
Securities are expected to performance vest (if at all), and (y) the
magnitude of the risk that such securities may never become performance
vested under the terms of the Performance Vesting Agreement.
"FAMILY GROUP" has the meaning set forth in Section 4(c)(ii).
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"FULLY VESTED SECURITIES" means Executive Securities which
both (i) are Time-Vested Securities and (ii) are not Un-Performance-Vested
Securities.
"INTELLECTUAL PROPERTY" has the meaning set forth in Section
5(b)(i).
"JOINDER AGREEMENT" means the joinder and rights agreement of
even date herewith entered into by and between the Company and the Executive,
pursuant to which Executive shall become a party to the LLC Agreement, the
Securityholders Agreement, the Registration Agreement and the Performance
Vesting Agreement as if he were an original signatory to each such agreement.
"KEY EMPLOYEE" has the meaning set forth in Section 3(b).
"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.
"NONCOMPETITION PERIOD" has the meaning set forth in Section
6(a).
"NONSOLICITATION PERIOD" has the meaning set forth in
Section 7.
"ORIGINAL COST," as to any particular securities, shall mean
the initial price paid to the Company upon issuance of such securities (as
such price is equitably adjusted for any securities splits, securities
dividends, securities combinations, conversions, recapitalizations or
reorganizations).
"PERFORMANCE-VESTED SECURITIES" means Performance Vesting
Securities that have performance vested pursuant to the terms of the
Performance Vesting Agreement.
"PERFORMANCE VESTING AGREEMENT" means that certain
performance vesting agreement dated May 18, 1998, by and among the Company,
certain Key Employees (including Executive), and the Investors party thereto,
as amended from time to time in accordance with its terms.
"PERFORMANCE VESTING SECURITIES" means (i) the Common Units
specified in the Performance Vesting Agreement as subject to performance
vesting thereunder (regardless of whether such Common Units have or have not
performance vested pursuant to the terms thereof), and (ii) any securities
issued directly or indirectly with respect to any Performance Vesting
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; PROVIDED that Performance
Vesting Securities shall not include any Senior Units. As to any particular
securities constituting Performance Vesting Securities, such securities shall
cease to be Performance Vesting 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
pursuant to the provisions hereof or forfeited pursuant to the provisions of
the Performance Vesting Agreement.
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"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 in the LLC Agreement.
"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 SECURITIES" means (i) the Preferred Units issued
pursuant to the Equity Purchase Agreement, (ii) any Common Units issued upon
conversion of the Preferred Units referenced in clause (i), and (iii) any
securities issued directly or indirectly with respect to any Purchaser
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
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 forfeited pursuant to the provisions 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).
"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 made in
respect of the Preferred Units under the terms of the Equity
Purchase Agreement) made on or prior to the date of such
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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.
"QUALIFIED SALE OF THE COMPANY" has the meaning set forth in
Section 2(b).
"REPURCHASE EVENT" has the meaning set forth in Section 3(a).
"REPURCHASE NOTICE" has the meaning set forth in Section 3(d).
"REPURCHASE PRICE" has the meaning set forth in Section 3(c).
"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,
or any similar federal law then in force.
"SECURITYHOLDERS AGREEMENT" means the securityholders agreement
dated May 18, 1998 entered into 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.
"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
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respect of which Person the term "SUBSIDIARY" is used, the term "SUBSIDIARY"
shall refer to any Subsidiary of the Company.
"TIME-VESTED SECURITIES" has the meaning set forth in Section
2(a).
"TRANSFER" has the meaning set forth in Section 4(c)(i).
"UN-PERFORMANCE-VESTED SECURITIES" means Performance Vesting
Securities that have not yet performance vested pursuant to the provisions of
the Performance Vesting Agreement.
"UN-TIME-VESTED SECURITIES" has the meaning set forth in
Section 2(a).
9. MISCELLANEOUS PROVISIONS.
(a) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or
attempted Transfer of any Executive Securities in violation of any provision
of this Agreement shall be void, and the Company shall not record such
purported Transfer on its books or treat any purported transferee of such
Executive Securities as the owner of such securities for any purpose.
(b) 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.
(c) COMPLETE AGREEMENT. This Agreement, those documents
expressly referred to herein and related documents among the parties 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, written or oral, which
may have related to the subject matter hereof in any way.
(d) 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.
(e) 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.
(f) CHOICE OF LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF DELAWARE WITHOUT GIVING EFFECT TO ANY
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CHOICE OF LAW OR CONFLICT OF LAW STATUTES, RULES, PROVISIONS, OR DECISIONAL
LAW (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
DELAWARE. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF
DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
STATUTES, RULES, PROVISIONS, OR DECISIONAL LAW (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION), SHALL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN THOUGH UNDER THAT JURISDICTION'S CHOICE
OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER
JURISDICTION WOULD ORDINARILY AND OTHERWISE APPLY.
(g) JURISDICTION; SERVICE OF PROCESS. ANY ACTIONS OR
PROCEEDINGS, WHETHER AT LAW OR IN EQUITY, SEEKING TO ENFORCE OR TO ENJOIN
THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT, OR BASED ON ANY RIGHT
ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT, TRIED AND LITIGATED AGAINST
ANY OF THE PARTIES IN THE COURTS OF THE STATE OF COLORADO, OR, IF IT HAS OR
CAN ACQUIRE JURISDICTION, IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO, AND EACH OF THE PARTIES HEREBY CONSENTS TO THE
JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS) IN ANY
SUCH ACTION OR PROCEEDING AND WAIVES ANY AND ALL POSSIBLE OBJECTIONS TO VENUE
LAID THEREIN, INCLUDING WITHOUT LIMITATION FORUM NON CONVENIENS. PROCESS IN
ANY ACTION OR PROCEEDING REFERRED TO IN THE PRECEDING SENTENCE MAY BE SERVED
ON ANY PARTY ANYWHERE IN THE WORLD BY PREPAID FEDERAL EXPRESS, DHL OR OTHER
INTERNATIONAL AIR COURIER TO THE EXECUTIVE AT THE LAST KNOWN ADDRESS PROVIDED
TO THE COMPANY IN WRITING, TO THE COMPANY AT THE ADDRESS SET FORTH IN SECTION
9(m) HEREIN OR SUCH OTHER ADDRESS PROVIDED TO EXECUTIVE IN WRITING, AND TO
THE LAST KNOWN ADDRESS OF ALL OTHER ADDRESSEES.
(h) REMEDIES. Each of the parties to this Agreement
(including any Key Employee to which the Company assigns any of its
repurchase rights under Section 3 hereof, as third-party beneficiaries) 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,
subject to the limitations set forth in Section 9(g) hereof, 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 and the Executive.
(j) THIRD-PARTY BENEFICIARIES. The parties hereto
acknowledge and agree that certain provisions of this Agreement are intended
for the benefit of any Key Employee to which the Company assigns any of its
repurchase rights under Section 3 hereof, that such Persons are third-party
beneficiaries of this Agreement, and that the provisions of this Agreement
shall be enforceable by such Persons as provided herein.
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(k) 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 United Kingdom, or the jurisdiction of
the Company's principal office, the time period shall be extended
automatically to the business day immediately following such Saturday, Sunday
or holiday.
(l) 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 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.
(m) NOTICES. Subject to the requirements regarding service
of process set forth in Section 9(g) above, 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 following Persons at the
following addresses:
TO THE COMPANY:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
AND WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
Holme ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To Executive: at the address set forth in the Company's
records or to such other address or to the attention of such other person as
the recipient party has specified by prior written notice to the sending
party.
(n) 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.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Executive Securities Agreement on the date first written above.
COMPLETEL LLC
By:
-----------------------------------
EXECUTIVE
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(Signature Page for Executive Securities Agreement)