EXHIBIT 10.30
(i)STRUCTURE, LLC
SPECIAL SALE BONUS AGREEMENT
This SPECIAL SALE BONUS AGREEMENT (this "Agreement") is made
and entered into as of this 25 day of March, 2005, by and between
(i)Structure,
LLC, a Delaware limited liability company (the "Company"), and
Michael D. Jones
(the "Employee").
WHEREAS, the Company and the Employee have agreed that it is
in their respective best interests that (i) the ongoing services of
the Employee
be secured at this time; and (ii) the Employee fully devote his
attention to
maximizing the value of the Company and to managing the Company's
participation
in any potential sale of the Company either through public offering
of the
common stock of the Company or its parent or another sale
transaction.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants and agreements herein contained, the Company
and the
Employee hereby agree as follows:
1. Definitions.
(a) "Acquired" shall have the meaning ascribed to that term in the
definition of
Sale Proceeds.
(b) "Acquiror" shall have the meaning ascribed to that term in the
definition of
Sale Proceeds.
(c) "Board" shall mean the Managers of the Company.
(d) "Disability" shall mean a permanent and total disability as
defined in the
Company's long-term disability insurance program, or, if no such
program is in
effect, Disability shall mean a total and permanent disability or
incapacity
resulting from medically demonstrable bodily injury or disease (i)
which
prevents the Employee from engaging in any regular occupation for
compensation
or profit, (ii) which has continuously existed for a period of at
least six
months, and (iii) for which the Employee would be eligible for or
is in receipt
of disability benefits under the Federal Social Security Act. The
existence of a
Disability shall be determined by the Board, which may require the
Employee to
undergo examination by a qualified physician selected by the Board
at reasonable
times for the purposes of determining whether the Employee has
incurred and
continues to have a Disability.
(e) "Final Sale Proceeds Adjustment" shall have the following
alternative
meanings: (i) if the aggregate Sale Proceeds is greater than $80
million but
less than or equal to $90 million, the Final Sale Proceeds
Adjustment shall
equal the result of multiplying 0.02 by the amount by which the
aggregate Sale
Proceeds exceeds $80 million but is less than or equal to $90
million, which
will be added to the Percentage Sale Formula Result; (ii) if the
aggregate Sale
Proceeds is greater than $90 million, the Final Sale Proceeds
Adjustment shall
equal the amount determined in clause (i) plus the result of
multiplying 0.04 by
the amount by which the aggregate Sale Proceeds exceeds $90
million, which total
will be added to the Percentage Sale Formula Result; (iii) if the
aggregate Sale
Proceeds is less than $80 million but greater than or equal to $70
million, the
Final Sale Proceeds Adjustment shall equal the result of
multiplying 0.02 by the
amount by which the aggregate Sale Proceeds is less than $80
million, which
amount will be subtracted from the Percentage Sale Formula Result;
(iv) if the
aggregate Sale Proceeds is less than $70 million, the Final Sale
Proceeds
Adjustment is the amount to be deducted determined pursuant to
clause (iii) plus
the result of multiplying 0.04 by the amount by which the aggregate
Sale
Proceeds is less than $70 million, which total will be subtracted
from the
Percentage Sale Formula Result; and (v) if the aggregate Sale
Proceeds is equal
to $80 million, the Final Sale Proceeds Adjustment shall be
zero.
For illustrative purposes only, (i) if the aggregate Sale Proceeds
is $85
million, the Percentage Sale Formula Result shall equal $1.2
million ($1.1
million + ($5.0 million * 0.02)), (ii) if the aggregate Sale
Proceeds is $95
million, the Percentage Sale Formula Result shall equal $1.5
million ($1.1
million + [($10.0 million * 0.02) + ($5.0 million * 0.04)]), (iii)
if the
aggregate Sale Proceeds is $75 million, the Percentage Sale Formula
Result shall
equal $1.0 million ($1.1 million - ($5.0 million * 0.02)), and (iv)
if the
aggregate Sale Proceeds is $65 million, the Percentage Sale Formula
Result shall
equal $700,00 ($1.1 million - [($10.0 million * 0.02) - ($5.0
million * 0.04)]).
(f) "IPO" shall mean the sale of common stock of the Company or the
parent of
the Company in an underwritten public offering, pursuant to a
registration
statement filed with the Securities and Exchange Commission on Form
S-1 or other
comparable form required by the Securities and Exchange
Commission.
(g) "Percentage Sale Formula Result" shall mean $1,100,000;
provided, that such
$1,100,000 shall be adjusted by the Final Sale Proceeds
Adjustment.
(h) "Person" shall mean any individual, corporation (including any
non-profit
corporation), general or limited partnership, limited liability
company, joint
venture, estate, trust, association, organization, labor union, or
other entity.
(i) "Sale" shall mean (i) the merger or consolidation of the
Company with an
unaffiliated Person, (ii) the sale or exchange of all or
substantially all of
the assets or business operations of the Company to an unaffiliated
Person, or
(iii) the sale or exchange of at least a majority of the
outstanding capital
stock of the Company to an unaffiliated Person; provided that a
Sale shall not
include an IPO.
(j) "Sale Bonus Payment" shall mean the Percentage Sale Formula
Result, as
adjusted. To the extent that the Sale Proceeds includes the receipt
of an
earn-out or other delayed payment structure, the Employee shall
receive that
portion of the Sale Bonus Payment relating to the earn-out or such
delayed
payment at such time as the Company or the Company's sole
stockholder, as
applicable, receives its payment.
(k) "Sale Proceeds" shall mean the sum of:
(i) the amount of cash, the principal amount of any notes, and
the fair market value (on the date of payment) of all other
securities
and other property paid or payable, directly or indirectly, by
the
acquiring party (the "Acquiror") to the owner of the securities of
the
acquired party or the seller of the acquired business or assets
(in
either case, the "Acquired"), in connection with a Sale or a
transaction related thereto (the "Consideration"), plus
(ii) the amount of any long-term liabilities of the Acquired
(including obligations relating to any capitalized leases) and
the
principal amount of any indebtedness for borrowed money (x)
reflected
on the Acquired's balance sheet at the time of a Sale or repaid
or
retired in anticipation of a Sale (if such Sale takes the form of
a
merger or consolidation or a sale or exchange of stock) or (y)
assumed
directly or indirectly by the Acquiror in connection with a Sale
(if
such Sale takes the form of a sale or exchange of assets),
minus
(iii) the amount of any Due to Affiliates as set forth on the
balance of the Company that is in excess of $13.783 million plus
any
further amounts that represent additional cash advances to the
Company
after December 31, 2004 and prior to the date of Closing of any
Sale to
the extent the obligation to repay such advances is not assumed
directly or indirectly by the Acquiror in connection with a
Sale
(regardless of the form of the transaction between the Acquiror and
the
Acquired).
Notwithstanding the foregoing, to the extent that the determination
of the
Consideration under the agreement relating to the Sale between the
Acquiror and
the Acquired does not take into account a working capital
adjustment, the
Consideration will first be adjusted, dollar for dollar, for a
positive or
negative working capital balance from zero, as the case may be, in
calculating
Sales Proceeds.
For purposes of this definition, an Acquiror shall be deemed to
have assumed its
pro rata share, based on equity ownership, of any long-term
liabilities to the
extent that the Acquiror has obtained more than 50%, but less than
100%, of the
capital stock of the Company in a Sale.
Notwithstanding the foregoing, to the extent that the Sale Proceeds
include Sale
Proceeds that are attributable to the inclusion of a Person or the
business of a
Person other than the Company in a Sale (including, without
limitation Orygen,
LLC), the chief executive officer of Level 3 Communications, Inc.,
upon the
exercise of his good faith and in his sole discretion shall
determine the
allocation of the Sale Proceeds to the Company for purposes of this
Agreement.
In addition, notwithstanding the foregoing, the chief executive
officer of Level
3 Communications, Inc. reserves the right to determine, upon the
exercise of his
good faith and in his sole discretion, the amount by which the Sale
Proceeds for
purposes of this Agreement shall be adjusted if the nature of the
terms of the
Sale that created the Sale Proceeds contain contingencies
(including, without
limitation, receipt of a promissory note or earn-out agreement) or
other
elements (including, without limitation, continuing guarantees by
Level 3
Communications, Inc. or any of its other affiliates), that would
significantly
reduce the current value of the Sale to Level 3 Communications,
Inc.
(l) "Term" shall have the meaning set forth in Section 2 below.
2. Term of Agreement; Duties.
(a) Subject to Section 4 below, this Agreement shall be effective
on the date
hereof and shall continue in effect through the first to occur of
(i) the
closing of a Sale or an IPO and (ii) December 31, 2005 (the
"Term"). Upon
expiration of the Term, all obligations of the parties under this
Agreement
(except obligations to pay money that exist as of the end of the
Term and any
obligation that by its terms survives the expiration of the Term)
shall
terminate and this Agreement shall have no further effect.
(b) The Employee will have such duties as are assigned or delegated
to the
Employee by the Board or the Chief Executive Officer from time to
time. As of
the date of this Agreement, the Employee is the Chief Executive
Officer of the
Company. From the date of this Agreement through the earlier of (i)
the date a
Sale is consummated or (ii) the end of the Term, the Employee will
devote his
entire business time, attention, skill, and energy exclusively to
the business
of the Company, will use his good faith efforts to promote the
success of the
Company's business, and will cooperate fully with the Board in the
advancement
of the best interests of the Company and its stockholder(s), which
may include a
Sale or an IPO.
3. Payment of Sale Bonus Payment. Subject to Section 4 below, the
Company shall
pay the Employee the Sale Bonus Payment within four (4) business
days following
the closing of a Sale.
4. Termination of Employment and Compensation upon Termination.
(a) The Employee and the Company acknowledge that the employment of
th
