MOTIVATING PROGRAM ADHERENCE ACT DATED ( ) {SPECIMEN} ( ) a Member of Key Personnel (as the first party) and ECHO POLSKA PROPERTIES N.V. and [EPP (CYPRUS) PLC or other local subsidiary], the GUARANTOR (acting together, as the second party)
TABLE OF CONTENTS RECITALS... 2 1. DEFINITIONS AND INTERPRETATION... 2 2. INTERPRETATION OF THIS ACT... 3 3. THE SUBJECT MATTER OF THIS ACT... 3 4. GOVERNING LAW AND FORUM... 4 5. COLLATERAL... 4 6. NOTICES... 5 7. WAIVERS, RIGHTS AND REMEDIES... 6 8. GENERAL... 6 SIGNATORIES... 8 LIST OF SCHEDULES Schedule 1 Schedule 2 Schedule 3 Schedule 4 Resolution of the Shareholder s Meeting of the Company of ( ); General Terms and Conditions of Long-Term Incentive Plan for Key Personnel; Copy of ID Card (Member of Key Personnel); Copy of registration documents (the Company); 1
THIS MOTIVATING PROGRAM ADHERENCE ACT (the Act ) is made on( ) 2017 BY AND BETWEEN: (1) ( ), a member of Key Personnel, address, ( ), tax indenitifaction number, ( ), number of ID card ( ), nationality: ( )(the Member of Key Personnel ), as the first party to this Act; (2) ECHO POLSKA PROPERTIES N.V.,with its official seat in Amsterdam, the Netherlands registered with the Dutch trade register under number 64965945, Rapenburgerstraat 175 M, 1011VM Amsterdam, Netherlands (the Company ),and (3) [Echo Polska Properties (CYPRUS) PLC or other local subsidiary]), the company incorporated ( ), ( ), (all registration details), (the Guarantor ); the Company and the Guarantor togetheras the second party to this Act. The Member of Key Personnel shall be treated as the first Party thereto andthe Company and the Guarantor, acting as joint and severall debtors, shall be treated as the second Party thereto, and the Member of the Key Personel (as first party) and the Company jointly with the Guarantor (the second party), shall be jointly referred to as the Parties, and any of them individually as a Party. WHEREAS: RECITALS (A) (B) On ( ), the Shareholders Meeting of the Company has adopted Resolution number ( ) dated ( ) (the Resolution ), those copy is attached as Schedule 1 thereto, upon which the motivating program in form of the Long Term Incentive Plan for Key Personnel (LTI Plan) was adopted and, as a result, the Shares were granted to Members of Key Personnel; The Company (together with the Guarantor) and the Member of Key Personnel now hereby wish to confirm the participation of the Member of Key Personnel in LTI Plan. IT IS AGREED AS FOLLOWS: 1. DEFINITIONS AND INTERPRETATION 1.1 All definitions shall have meaning as ascribed to them in the LTI Plan, unless otherwise expressly defined herein. 1.2 The following capitalised terms used in the Act have the following meaning: Act Resolution means this Act (including all Schedules thereto) as well as any further amendment(s) thereto; has the meaning ascribed to it in Clause (A) of the Preamble; 2
2. INTERPRETATION OF THIS ACT 2.1 Headings of clauses are for convenience only and do not affect their construction or interpretation. 2.2 References to this Act for any purpose include the recitals and Schedules which form part of this Act. References in this Act to the Parties, recitals, Schedules and clauses are references respectively to the Parties and their legal personal representatives, successors and permitted assignees, the recitals and Schedules to and clauses of this Act. 2.3 References to any document (including this Act) are references to that document as amended, consolidated, supplemented, novated or replaced from time to time. 2.4 Unless the context does not so permit, words importing one gender shall be treated as importing either gender, words importing an individual shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part thereof unless expressly stipulated to the contrary. 2.5 Save where specifically required or indicated otherwise, references to the word include or including (or any similar term) are not to be construed as implying any limitation, and general words introduced by the word other (or any similar term) shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things. 2.6 The Parties have participated jointly in the negotiation and drafting of this Act. In the event that ambiguity or a question of intent or interpretation arises, this Act shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favouring or disfavouring any Party by virtue of the authorship of any provisions of this Act. 2.7 References to a third party shall be deemed to refer to any party other than a Party, unless the context requires otherwise, but shall always include any administrative or governmental agency. 2.8 A guarantee given by any of the Parties shall be construed as resulting in a liability of a guarantee nature (odpowiedzialnośćgwarancyjna), under which the guaranteeing Party is liable for the occurrence or non-occurrence of a specific result, with no regard to any kind of fault or knowledge of such Party or occurrence of a Detriment. In case where this Act uses a phrase warrants it shall be construed the same as phrase guarantee and it triggers the liability of a guarantee nature of the Party for the occurrence or, respectively, non-occurrence of warranted state of result. 3. THE SUBJECT MATTER OF THIS ACT 3.1 By executing this Act, the Company and the Member of Key Personnel, hereby duly confirm the participation of the Member of Key Personnel in the motivating program as specified in the LTI Plan, and as further specified in this Act. 3.2 By this reference, the Parties agree that the document titled GENERAL TERMS AND CONDITIONS OF LONG-TERM INCENTIVE PLAN (MOTIVATING PROGRAM) FOR KEY PERSONNEL and all its four schedules (as attached together as Schedule 2 thereto) as 3
well as the Resolution (as attached as Schedule 1 thereto) are hereby implemented into this Act and shall constitute an integral part thereof, and thus the integral part of binding and enforceable arrangement and agreement between the Parties thereto. 3.3 Without limiting the generality of the foregoing, the Company and the Guarantor warrant that they have duly entered with the Member of Key Personnel into a legal contract and they have duly undertaken any and all obligations specified in this Act (including its Schedules) and the Company and the Guarantor warrants that such obligations are binding, valid and enforceable towards each of them. In particular, the Company and the Guarantor confirm that all internal decisions necessary to implement the LTI Plan have been adopted and all documents in relation to this LTI Plan have been adopted in accordance with proper representation and other legal requirements, in particular the Company was properly represented while adhering to any and all acts related thereto, including this Act. 3.4 By executing this Act, the Company confirms that the Member of Key Personnel was, under the Resolution, granted Shares, and such Shares shall be transferred to such Member of Key Personnel pursuant to terms and conditions specified in the LTI Plan (and in particular pursuant to the formula specified in Schedule 3 to the GENERAL TERMS AND CONDITIONS OF LONG-TERM INCENTIVE PLAN (MOTIVATING PROGRAM) FOR KEY PERSONNEL). Such granted Shares shall not be withdrawn, taken back or otherwise reduced unless expressly agreed by amember of Key Personnel in writing. Granting such Shares is a part of motivating programme and such Shares have been granted (free of charge) and with relation to the Members of Key Personnel work or services performed by them in favour of the Company s Affiliates in Poland. 3.5 Such Shares have been granted to the Member of Key Personnel, unconditionally and irrevocably, provided that their exact number will be calculated pursuant to the accomplishment of Loyalty Target and Performance Targets, as further specified in Schedule 3 to the GENERAL TERMS AND CONDITIONS OF LONG-TERM INCENTIVE PLAN (MOTIVATING PROGRAM) FOR KEY PERSONNEL. 4. GOVERNING LAW AND FORUM 4.1 This Actis governed by and enforced in accordance with the laws of the Republic of Poland. 4.2 Any disputes arising out of or related to thisact shall be finally settled as provided for in Clause 8 of the Schedule 2 thereto (i.e. Clause 8 in GENERAL TERMS AND CONDITIONS OF LONG-TERM INCENTIVE PLAN (MOTIVATING PROGRAM) FOR KEY PERSONNEL). 5. COLLATERAL 5.1 The Guarantor hereby agrees to be jointly and severallyliable for any acts and omissions of the Company directly or indirectly resulting from and/or relating to the LTI Planand guarantees for their proper performance. Therefore, the Guarantor shall be deemed, together with the Company, as a joint and several (solidar) debtors with regards to all obligations resulting from and/or relating to this LTI Plan and where any document relating to the LTI Plan refer to the Company it should be also construed as referring to the Guarantor. 4
5.2 To secure the proper performance of its obligations undertaken hereunder, the Guarantor shall, within 30 days thereof, establish, free of charge, for the benefit of the Member of Key Personnelthe following collateral to secure all rights, privileges and claims that the Member of Key Personnel may have under the LTI Plan: [eg. second rank mortgage on ( ) to the amount of ( )]. For the avoidance of doubts, the amount of the collateral shall not be deemed as any limitation of liability of the Company or the Guarantor. 6. DUE RECOURSE BETWEEN THE COMPANY AND THE GUARANTOR 6.1 In case where the Guarantor pays out to the Member of Key Personnel any due monetary award under Clauses 11 and/or 12 of Schedule 2 thereto (i.e. Clause 11 and Clause 12 in the GENERAL TERMS AND CONDITIONS OF LONG-TERM INCENTIVE PLAN (MOTIVATING PROGRAM) FOR KEY PERSONNEL), the Company shall reimburse the Guarantor with such payment made by the Guarantor to the Member of Key Personnel. The Guarator shall issue and provide the Company with proper accounting documents (invoice, debit note, etc. whatever is proper under law) so to properly and in accordance with provisions of law document such payment and its basis. 7. NOTICES 7.1 A notice or other communication under or in connection with this Act shall be made in writing in English and shall be delivered either personally, by registered delivery and/or by e-mail to the Party due to receive the notice or communication at its address or e-mail address set out below, or another address specified by that Party by written notice to the other Party with not less than 5 (five) Business Daysnotice: The Member of Key Personnel: ( ) The Company: ( ) The Guarantor: ( ) 7.2 In the absence of evidence of earlier receipt, any notice or other communications shall be deemed received: 7.2.1 if delivered personally, when left at the address referred to in Clause 7.1; 7.2.2 if sent by registered delivery, on the date recorded by the relevant postal service as the date of delivery; or 7.2.3 if sent by fax or by e-mail, on completion of its transmission, provided that if a day of deemed receipt is not a Business Day or deemed receipt is later than 17:00 CET on a Business Day, receipt shall be deemed to be 09:00 CET on the next Business Day. 5
7.3 For the avoidance of doubt, the Parties agree that the provisions of this Clause 7do not apply in relation to the service of any writ, summons, order, judgment or other document relating to or in connection with any court or arbitration proceedings, in which case the rules of such competent court or arbitration tribunal are applicable. 8. WAIVERS, RIGHTS AND REMEDIES 8.1 Subject to the provisions of this Act, no failure or delay by any Party in exercising any other right or remedy provided by law or under or pursuant to this Act shall impair such right or remedy, or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time, and no single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. 8.2 No Party is entitled to set off the payment or satisfaction of any obligation (actual or contingent) owed to the other Party against any other obligation (actual or contingent) owed to it by that Party. 9. GENERAL 9.1 This Act has been executed in 3 (three) counterparts in the English language. 9.2 When this Act provides for a contractual penalty it does not deprive the Party entitled to such penalty from seeking any additional reward for damage exceeding such penalty, nor from seeking any other legal remedy, including a claim for specific performance. 9.3 Each of the provisions of this Act is severable. If any such provision is held to be or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction: 9.3.1 it will have no effect and will be deemed not to be included in this Act, it will not affect or impair the legality, validity or enforceability in that jurisdiction of the other provisions of this Act, or of that or any provisions of this Act in any other jurisdiction; and 9.3.2 the Parties shall use all reasonable endeavours to replace it with a valid and enforceable substitute provision or provisions but differing from the replaced provision as little as possible, with an effect as close to the intended effect of the illegal, invalid or unenforceable provision. 9.4 All amounts payable under this Act, GTC and the Resolution are (unless expressly stated otherwise) exclusive of VAT. 9.5 This Act has following Schedules being an integral part of this Act: - Schedule 1 Resolution; - Schedule 2 - GENERAL TERMS AND CONDITIONS OF LONG-TERM INCENTIVE PLAN (MOTIVATING PROGRAM) FOR KEY PERSONNEL (along with its four schedules, i.e. - schedule 1: THE LIST OF THE MEMBERS OF KEY PERSONNEL; - schedule 2: Draft of Award Adherence Act; 6
- schedule 3: Allocation of Shares among Members of the Key Personnel; - schedule 4: Tranches, Reference Periods, Vesting Dates, and Lock-up Periods). 7
SIGNATORIES AS WITNESS the hands of the duly authorised representatives of the Parties hereto the day and year first before written. For the Company For the Guarantor By: By: Name and Surname: Name and Surname: Position: Position Date of signature:. Place of signature: Date of signature: Place of signature:... For the Member of Key Personnel By: Name and Surname: Position: Date of signature: Place of signature:... 8