{"id":39997,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/growth-share-plan-agreement-qwest-holding-corp-and-joseph-p.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"growth-share-plan-agreement-qwest-holding-corp-and-joseph-p","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/growth-share-plan-agreement-qwest-holding-corp-and-joseph-p.html","title":{"rendered":"Growth Share Plan Agreement &#8211; Qwest Holding Corp. and Joseph P. Nacchio"},"content":{"rendered":"<pre>                            QWEST HOLDING CORPORATION\n\n                          GROWTH SHARE PLAN AGREEMENT\n\n\n     THIS AGREEMENT is made and entered into as of January 1, 1997, by and\nbetween Qwest Holding Corporation  (the 'Company') and Joseph P. Nacchio (the\n'Participant').\n\n     WHEREAS, the Company has adopted the Qwest Holding Corporation Growth Share\nPlan, as amended effective October 1, 1996 (the 'Plan'), and\n\n     WHEREAS, the Plan requires that an Agreement be entered into between the\nCompany and the Participant setting out certain terms and benefits of the Plan\nas they apply to the Participant;\n\n     NOW, THEREFORE, the Company and the Participant hereby agree as follows:\n\n     1.   The Plan is hereby incorporated into and made a part of this Agreement\nas though set forth in full herein.  Capitalized terms that are used herein\nshall have the meanings assigned to such terms by the Plan, unless another\ndefinition is specified in this Agreement.  The parties shall be bound by, and\nhave the benefit of, each and every provision of the Plan, including but not\nlimited to the provisions relating to amendment and termination of the Plan\nwhich are set forth in the Plan.  Certain provisions contained in the Plan are\nmodified by the terms and provisions of this Agreement.  In the event of any\nconflict between the terms of this Agreement and the Plan, the provisions of\nthis Agreement shall prevail.  The Plan and this Agreement are intended to\nprovide to the Participant the benefits of a stock appreciation right with\nrespect to the Growth Shares granted hereunder.\n\n     2.   The beginning of the Performance Cycle for Growth Shares granted under\nthis Agreement will be January 1, 1997.\n\n     3.   The end of the Performance Cycle for Growth Shares granted under this\nAgreement will be December 31, 2001.\n\n     4.   The Participant is hereby granted 300,000 Growth Shares under this\nAgreement. The total number of Growth Shares available for issuance shall at no\ntime exceed 10,000,000 Growth Shares.\n\n     5.   The Beginning Company Value for the purpose of determining the value\nof the grant, determined as of January 1, 1997, is $1,000,000,000 (one billion\ndollars)  The parties agree that neither party has made any representations or\nwarranties to the other party with respect to the amount of the Beginning\nCompany Value or the Ending Company Value, respectively.  The parties also\nacknowledge that the actual value of the Company, or that the value of the\nassets of the Company less its liabilities, in each case as of January 1, 1997,\nmay be more or less than the Beginning Company Value stated above.\n\n \n     6.   (a)  Except as set forth below in subparagraphs (b) and (c) below,\nGrowth Shares granted under this Agreement will vest according to the following\nschedule:\n \n Period of Time (Years)\n Since January 1, 1997    Annual Vesting   Cumulative Vesting\n<font size=\"2\">------------------------  ---------------  -------------------\n \n           1                    20%               20%\n           2                    20%               40%\n           3                    20%               60%\n           4                    20%               80%\n           5                    20%              100%\n\n<\/font>          (b) If the Participant's employment with the Company is terminated by\nthe Company for any reason other than 'Cause' (as defined in the Employment\nAgreement between the Company and the Participant dated as of December 21, 1996\n(the 'Employment Agreement')), or if the Participant terminates his employment\nfor 'Good Reason' (as defined in the Employment Agreement), the Participant\nshall Vest in one-twelfth of the 20% of the Growth Shares subject to annual\nvesting for the calendar year of termination for each full month of employment\nby the Company during such calendar year.  The definition of 'Cause' contained\nin the Plan shall be replaced by the definition of 'Cause' contained in\nParagraph 4(b) of the Employment Agreement.\n\n          (c) If the Participant's employment with the Company terminates\nbecause of the Participant's death, 'Disability' (as defined in the Employment\nAgreement) or Retirement, the Participant shall be 100% Vested with respect to\nhis Growth Shares.  The definition of 'Permanent Disability' in the Plan shall\nbe replaced by the foregoing definition of 'Disability'.\n\n          (d) Sections 7.3 and 7.4 and the third sentence of Section 8.2 of the\nPlan shall not apply to the Participant with respect to his Growth Shares.  The\nGrowth Shares of the Participant shall not be subject to forfeiture pursuant to\nsuch provisions.\n\n          (e) Notwithstanding the provisions of Section 7.2 of the Plan, the\nParticipant shall not become 100% Vested in his Growth Shares upon the\noccurrence of a Change of Control unless, following the Change of Control, the\nParticipant's employment with the Company is terminated by the Company without\n'Cause' or the Participant terminates his employment for 'Good Reason' (as\ndefined in the Employment Agreement, provided that the occurrence of a 'Change\nof Control' shall not constitute 'Good Reason' for purposes of this subparagraph\n6(e)). Upon the occurrence of a Change of Control, the Growth Shares of the\nParticipant will remain subject to the Vesting provisions of Section 7 of the\nPlan, as amended or modified by this Paragraph 6.\n\n     7.   If the Participant's employment with the Company is terminated for\n'Cause,' the Participant shall forfeit the Growth Shares that are not vested in\naccordance with the provisions of paragraph 6 above and shall become entitled to\npayment with respect to his Vested Growth Shares based upon the Ending Company\nValue determined as of the end of the immediately preceding calendar year.\nEnding Company Value shall be determined in accordance with Section \n\n                                       2\n\n \n8.1 of the Plan and payment shall be made in accordance with the remaining\nprovisions of Section 8, as modified by this Agreement. Ending Company Value\nshall be determined as soon as practicable following the date of the\nParticipant's termination of employment, but in no event later than 90 days\nafter the date of termination.\n\n     8.   The definition of 'Change of Control' contained in the Plan shall be\nreplaced by the definition of Change of Control contained in Paragraph 4(d)(4)\nof the Employment Agreement.\n\n     9.   The provisions of clauses (ii) and (iii) of Section 2.1(x) of the\nPlan, whereby a termination of the Plan or a Change of Control constitutes a\nTriggering Event, shall not apply with respect to the Participant's Growth\nShares.\n\n     10.  In addition to the events set forth in Section 2.1(x) of the Plan, the\nfollowing shall also constitute a 'Triggering Event':   The payment of dividends\nor other distributions with respect to the outstanding stock of the Company\n(other than such dividends or distributions with respect to the outstanding\nstock of the Company that are not, in the aggregate, in excess of the amount of\nequity contributions to the capital of the Company, whether in the form of\ncapital contributions, purchases of stock, or otherwise, made by Anschutz\nCompany, its affiliates or another equity investor in the Company subsequent to\nthe Effective Date) subsequent to the date as of which Beginning Company Value\nis determined for a grant of Growth Shares that exceed, in the aggregate, the\ngreater of (a) $200,000,000 or (b) 50% or more of the sum of (i) the greater of\nthe Beginning Company Value with respect to that grant of Growth Shares or the\nAppraised Value of the Company pursuant to subsection 2.1(c), if any, subsequent\nto the grant of such Growth Shares, plus (ii) the increase in the Company's\nretained earnings since the date of grant of the Growth Shares or the date as of\nwhich Appraised Value was calculated if Appraised Value is the greater amount\nunder (i) above.  The Board may cause a determination of Appraised Value to be\nmade for purposes of this provision at any time.\n\n     11.  In the case of a Triggering Event described above in Paragraph 10 of\nthis Agreement, the Ending Company Value will be the Appraised Value of the\nCompany as of the last day of the month immediately prior to or coincident with\nthe date on which such dividend is paid, provided, however, that if all classes\nof the Company's outstanding common equity securities are traded on an\nestablished securities market as of the time Ending Company Value is to be\ndetermined and the Company is subject to the reporting and disclosure\nrequirements of the Exchange Act, the Ending Company Value will be determined by\nmultiplying the per share Market Value of such outstanding equity securities on\nthe date of the Triggering Event by the total number of such securities\noutstanding at the time of the Triggering Event.\n\n     12.  The following provision shall be added to Section 6 of the Plan and\nshall apply to the Participant's Growth Shares:\n\n          6.4  Adjustment of Number of Growth Shares.  Upon changes in the\n               -------------------------------------                      \n     outstanding common stock of the Company by reason of a merger,\n     consolidation (whether or not the Company is the surviving corporation), a\n     combination or exchange of shares, separation, reorganization or\n     liquidation, the aggregate number of Growth Shares available under the Plan\n     for awards and the outstanding \n\n                                       3\n\n \n     Growth Share grants shall, in each case, be correspondingly adjusted by the\n     Board in order to equitably reflect any such changes.\n\n     13.  The following provisions shall be added to Section 7.2 of the Plan and\nshall apply to the Participant's Growth Shares:\n\n     Upon the occurrence of a Triggering Event described above in Paragraph 10\n     of this Agreement, the Participant shall become 100% Vested in a percentage\n     of his Growth Shares equal to the percentage of Ending Company Value\n     distributed to the shareholders of the Company in the form of dividends, as\n     described in Paragraph 10 of this Agreement.  The remaining Growth Shares\n     of the Participant, in such an event, shall remain subject to the other\n     Vesting provisions of the Plan, as modified by this Agreement.\n\n     14.  The next to the last sentence of Section 8.1 of the Plan shall be\nreplaced by the following sentence with respect to the Participant's Growth\nShares:\n\n     For purposes of clause (C) above, a merger or other reorganization where\n     the shareholders of the Company immediately prior to the transaction own\n     more than 50% of the surviving entity in approximately the same proportions\n     as they owned of the Company immediately prior to the transaction shall be\n     treated as the acquisition of assets for Company stock.\n\n     15.  Notwithstanding the other provisions of Section 8 of the Plan, in the\ncase of a Triggering Event described above in Paragraph 10 of this Agreement,\nthe amount payable initially with respect to Vested Growth Shares shall be a\npercentage of the value determined in accordance with Section 8.1 of the Plan,\nwith such percentage being equal to the percentage of the Ending Company Value\ndistributed to the shareholders of the Company in the form of dividends or\notherwise that serves as the Triggering Event.  In such a case, the\nParticipant's Growth Shares shall remain subject to the provisions of the Plan\nand this Agreement and any further payment with respect to such Growth Shares,\nif any, shall be made in accordance with the applicable provisions of the Plan\nand this Agreement.\n\n     16.  Notwithstanding the provisions of Section 8.3 of the Plan, payment to\nthe Participant with respect to his Growth Shares shall be made in cash (unless\nthe Participant agrees otherwise) unless, at the time of the Triggering Event,\nthe shares of the Company's common stock satisfy the requirements of Section\n8.4(b) of the Plan, in which case the provisions of Section 8.4(b) of the Plan\nshall apply with respect to the payment for the Participant's Growth Shares.\nPayment to the Participant, in cash or in shares of the Company's Common Stock,\nas applicable, shall be made no later than thirty (30) days after the final\ndetermination of the value of the Participant's Growth Shares.\n\n     17.  The provisions of Section 13 of the Plan shall be replaced in their\nentirety by the following:\n\n          The Board may at any time terminate, and from time to time may amend\n     or modify the Plan.  Upon termination of the Plan, no further Growth Shares\n     shall be \n\n                                       4\n\n \n     issued, but the provisions of the Plan shall remain applicable to all\n     Growth Shares then outstanding at the time of Plan termination. No\n     amendment, modification or termination of the Plan shall in any manner\n     adversely affect any Growth Shares theretofore granted under the Plan,\n     without the consent of the Participant holding such Growth Shares.\n\n     18.  Notwithstanding the provisions of Section 3 of the Plan, if any\ndispute arises between the Participant and the Company with respect to the\nmeaning or interpretation of the Plan or this Agreement, such dispute shall be\nresolved on a de novo basis pursuant to the arbitration provisions contained in\n              -- ----                                                          \nSection 9 of the Employment Agreement.\n\n     19.  If the shares of the Company's common stock are actively traded on an\nestablished securities market and the Company is subject to the reporting and\ndisclosure requirements of the Securities Exchange Act of 1934, as amended, as\nprovided in Section 8.4(b) of the Plan, the Participant may elect to receive\npayment for up to 20% of his Vested Growth Shares in shares of the Company's\ncommon stock in accordance with the provisions of this Paragraph.  The\nParticipant may exercise his election to receive payment for up to 20% of his\nVested Growth Shares (taking into account any prior payments made pursuant to\nthis Paragraph) by delivering written notice of such election to the Board\nduring the period beginning on the third business day following the date of\nrelease of the Company's quarterly financial data and ending on the twelfth\nbusiness day following such date (the 'Window Period').  The election shall\nspecify the number of Growth Shares with respect to which the Participant has\nelected to receive payment.  The amount of payment to be received by the\nParticipant with respect to such Growth Shares shall be based upon the\nprovisions of Section 8.1 of the Plan, with the Ending Company Value determined\nby taking the average of the mean between the bid and the asked prices of the\nCompany's common stock, or the closing price, as applicable, on the principal\nstock exchange on which such common stock is traded, over the trading days\nincluded within the Window Period. The Company shall cause a certificate\ncovering the nearest whole number of shares of the Company's common stock with a\nvalue so determined to be issued and delivered to the Participant as soon as\nreasonably practicable following the determination of the value of the\nParticipant's Growth Shares in accordance with the provisions of this Paragraph.\nThe Vested Growth Shares for which the Participant receives payment under this\nParagraph shall be canceled and the Participant shall be entitled to no further\npayments under the Plan with respect to such canceled Growth Shares.\n\n     20.  The provisions of Section 11 of the Plan shall not apply with respect\nto the Participant's Growth Shares.\n\n     21.  This Agreement shall inure to the benefit of, and be binding upon, the\nCompany, its successors and assigns, and the Participant and his Beneficiaries.\n\n     22.  This Agreement may be modified or amended only by means of a written\ninstrument executed by the parties hereto.\n\n                                       5\n\n \n     IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as\nof the date first above written.\n\n                              QWEST HOLDING CORPORATION\n\n                                             \n                              By: \/s\/\n                                 ---------------------------------\n\n\n                              PARTICIPANT\n\n                               \/s\/\n                              ------------------------------------\n                                 Joseph P. Nacchio\n\n                                       6\n\n \n                    DESIGNATION OF BENEFICIARY FOR PAYMENTS\n                      DUE UNDER QWEST HOLDING CORPORATION\n                               GROWTH SHARE PLAN\n\n     The undersigned is a Participant in the Qwest Holding Corporation Growth\nShare Plan, as amended effective October 1, 1996 (the 'Plan') established by\nQwest Holding Corporation (the 'Company').\n\n     Pursuant to Section 10 of the Plan, the undersigned hereby designates the\nfollowing persons or entities as primary and secondary beneficiaries and primary\nand secondary appointees as my legal representative of any amount due to me\nunder the Plan with respect to the grant of Growth Shares effective as of\nJanuary 1, 1997 and payable by reason of my death or disability, respectively:\n\n                                     DEATH\n                                     -----\n                                       \nPrimary Beneficiary:\n--------------------\n \n       Name:                        Address:                 Relationship:\n \n____________________           __________________         ____________________\n                               __________________\n \n\nSecondary (Contingent) Beneficiary:\n-----------------------------------\n \n       Name:                        Address:                 Relationship:\n \n____________________           __________________         ____________________\n                               __________________\n\n\n                                   DISABILITY\n                                   ----------\nPrimary Appointee:\n------------------\n\n       Name:                        Address:                 Relationship:\n \n____________________           __________________         ____________________\n                               __________________ \n\n\nSecondary (Contingent) Appointee:\n---------------------------------\n \n       Name:                        Address:                 Relationship:\n \n____________________           __________________         ____________________\n                               __________________\n\n                                       7\n\n \nTHE RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY OR APPOINTEE DESIGNATION IS HEREBY\nRESERVED.  ALL PRIOR DESIGNATIONS (IF ANY) OF BENEFICIARIES AND APPOINTEES, OF\nANY KIND, ARE HEREBY REVOKED.\n\n     The Company shall pay all sums payable under the Plan by reason of my death\nto the Primary Beneficiary, if he or she survives me, and if no Primary\nBeneficiary shall survive me, then to the Secondary Beneficiary, and if no named\nbeneficiary survives me, then the Company shall pay all amounts in accordance\nwith Section 10 of the Plan.  In the event that a named beneficiary survives me\nand dies prior to receiving the entire amount payable under the Plan, then and\nin that event, the remaining unpaid amount, payable according to the terms of\nthe Plan, shall be payable to the personal representative of the estate of said\ndeceased beneficiary, who survives me, but dies prior to receiving the total\namount due under the Plan.  This same payment scheme shall apply to Primary and\nSecondary Appointees except that no amount payable under the Plan shall be paid\nto the estate of a Primary or Secondary Appointee.  Should the Secondary\nAppointee not survive me and not receive the full amount payable under the Plan,\nthen such remaining amount shall be payable to my guardian or conservator as\nappointed by a court of competent jurisdiction.\n\n     IN WITNESS WHEREOF, the undersigned has executed this document on the day\nand year hereinafter indicated, in the presence of the witnesses indicated below\nwho each signed as witnesses in the presence of the undersigned and each other.\n\n\n                                    ________________________________\n                                                   Name\n\n\n                                    ________________________________\n                                                 Signature\n\n                                    ________________________________\n                                                    Date\nWITNESSES:\n\n\n______________________________\n            Name\n\n______________________________\n          Signature\n\n______________________________\n            Name\n\n______________________________\n          Signature\n\n\n\nNOTE: In preparing this Designation of Beneficiary, you should consult with your\n----  attorney to determine the appropriate method of designation consistent\n      with your personal estate plan.\n      \n\n                                       8\n\n \n                                   AMENDMENT\n                                      TO\n                          GROWTH SHARE PLAN AGREEMENT\n\n     THIS AMENDMENT is made and entered into effective as of June ___, 1997 (the\n'Effective Date'), by and between Qwest Communications International Inc., a\nDelaware corporation (the 'Company') and Joseph P. Nacchio (the 'Participant').\n\n     WHEREAS, the Company and the Participant entered into a Growth Share Plan\nAgreement as of January 1, 1997 (the 'Agreement') pursuant to the Qwest Holding\nCorporation Growth Share Plan, executed April 7, 1997 and effective as of\nOctober 1, 1996 (the 'Growth Share Plan'); and\n\n     WHEREAS, the Agreement and the Growth Share Plan replaced any prior\nversions of such documents and constitute the currently operative documents with\nrespect to the grant of 'Growth Shares' to the Participant, as contemplated by\nthe Employment Agreement between the Company and the Participant dated as of\nDecember 21, 1996, as amended; and\n\n     WHEREAS, the Agreement provides that it may be amended by means of a\nwritten instrument executed by the parties thereto;  and\n\n     WHEREAS, the Company and the Participant wish to amend the Agreement;\n\n     NOW, THEREFORE, the Company and the Participant hereby agree as follows:\n\n     A.   The Agreement shall be and hereby is amended, effective as of the\nEffective Date, in the following respects:\n\n     1.   Paragraph 3 of the Agreement is hereby amended in its entirety to\nprovide as follows:\n\n     'The end of the Performance Cycle for Growth Shares granted under this\n     Agreement will be such date occurring on or after January 1, 2001, and\n     before December 31, 2001, as may be determined by the Company and\n     communicated  to the Participant in writing.  Notwithstanding the\n     provisions of the last sentence of Section 7.2 of the Growth Share Plan,\n     the Participant shall become 100% vested with respect to his Growth Shares\n     on the date determined by the Company pursuant to the immediately preceding\n     sentence to be the end of the Performance Cycle.'\n\n     2.   A new Paragraph 21 is added to the Agreement, to provide as set forth\nbelow, and Paragraph 21 of the Agreement is hereby renumbered as Paragraph 22:\n\n          '21.  Section 8.1 of the Growth Share Plan is hereby amended with\n     respect to the Participant's Growth Shares by the addition thereto, at the\n     end, of the following:\n\n \n     Notwithstanding the foregoing provisions of this Section 8.1, if the\n     pricing meeting (the 'Pricing Meeting') at which shares of the common stock\n     of the Company are priced for sale to the public pursuant to an initial\n     underwritten public offering (the 'IPO') of the common stock of the Company\n     that is registered under the Securities Act of 1933, as amended, on\n     Registration Statement No. 333-25391 occurs before a Triggering Event with\n     respect to the Participant's Growth Shares, the value of the Participant's\n     Growth Shares shall not exceed the value of such Growth Shares calculated\n     as of the date of the Pricing Meeting as if the Pricing Meeting were a\n     Triggering Event and Ending Company Value were determined by multiplying\n     the per share 'market value' (which for this purpose shall mean the per\n     share value at which shares of the Company's common stock are priced at the\n     Pricing Meeting) of such outstanding equity securities by the total number\n     of such securities outstanding immediately following the IPO, provided,\n     however, that the foregoing provision shall become effective at the time\n     that the registration statement for the IPO becomes effective.'\n\n     3.   Paragraph 19 of the Agreement is hereby amended by amending the second\nsentence thereof in its entirety to provide as follows:\n\n     'The Participant may exercise his election to receive payment for up to 20%\n     of his Vested Growth Shares (taking into account any prior payments made\n     pursuant to this Paragraph) on and after the fifteenth day following the\n     date on which the Growth Shares Vest by delivering written notice of such\n     election to the Board during the period beginning on the third business day\n     following the date of release of the Company's quarterly financial data and\n     ending on the twelfth business day following such date (the 'Window\n     Period').'\n\n     Except as set forth above, the Agreement remains in full force and effect.\n\n\n     IN WITNESS WHEREOF, the parties hereto have entered into this Amendment\neffective as of the date first above written.\n\n                              QWEST COMMUNICATIONS\n                                 INTERNATIONAL INC.\n\n                                   \/s\/\n                              By_________________________________\n\n                              PARTICIPANT:\n\n                                   \/s\/\n                              ____________________________________\n                                    Joseph P. Nacchio\n\n                                       2\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8630],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9539,9544],"class_list":["post-39997","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-qwest-communications-international-inc","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39997","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39997"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39997"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39997"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39997"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}