EXHIBIT 10.12
RCL ACQUISITIONS, L.L.C.
EXECUTIVE UNIT PURCHASE AGREEMENT
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THIS EXECUTIVE UNIT PURCHASE AGREEMENT (this "Agreement") is made as
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of May 5, 1998, by and between RCL Acquisitions, L.L.C., a Delaware limited
liability company (the "Company"), and ▇▇▇▇▇▇ Beach ("Executive"). Any
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capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in Section 5 hereof.
WHEREAS, reference is made to a certain Agreement and Plan of Merger
(the "Merger Agreement"), dated February 21, 1998, by and among Bain/RCL,
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L.L.C., a Delaware limited liability company ("Bain"), the Company, Raytheon
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Commercial Laundry LLC, a Delaware limited liability company ("RCL") and
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Raytheon Company, a Delaware corporation ("Raytheon"), pursuant to which, as of
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the date hereof and simultaneous with the execution of this Agreement, the
Company has merged with and into RCL (such merger, the "Merger") with RCL as the
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surviving entity (as such, the "Surviving Entity");
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WHEREAS, in connection with the Merger and the transactions related
thereto, the Company and Executive desire to enter into this Agreement (i) to
provide for the sale to Executive by the Company of 465.30 the Company's Class A
Common Units (the "Class A Units"), 51.70 of the Company's Class L Common Units
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(the "Class L Units", and collectively with any Class A Units, the "Purchased
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Units"), 171.09 of the Company's Class B Common Units (the "Class B Units") and
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182.01 of the Company's Class C Common Units (the "Class C Units", and
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collectively with such Class B Units, the "Incentive Units" ), and (ii) to
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provide for certain rights and obligations of the parties with respect to the
Purchased Units and the Incentive Units (collectively, the "Executive Units");
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and
WHEREAS, as a result of the Merger, the Executive will become a
unitholder of the Surviving Entity and will receive his or her pro rata share of
the common units of the Surviving Entity in exchange for the Executive Units.
NOW THEREFORE, in consideration for the premises contained herein and
the mutual obligations of the parties hereto, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Executive hereto agree as
follows:
1. PURCHASE AND SALE OF EXECUTIVE UNITS.
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(a) Upon execution of this Agreement, Executive shall purchase, and
the Company shall sell, 465.30 Class A Units at a price of $100 per unit, 51.70
Class L Units at a price of $8,100 per unit, 171.09 Class B Units at a price of
$0.01 per unit and 182.01 Class C Units at a price of $0.01 per unit. The
Company shall deliver to Executive an executed copy of the Company's
limited liability company agreement (the "Operating Agreement") indicating
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Executive's ownership of such Class A Units, Class L Units, Class B Units and
Class C Units and Executive shall deliver to the Company a cashier's check or
wire transfer of funds in the aggregate amount of $344,600 and a promissory note
in the form of Annex A attached hereto in an aggregate principal amount of
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$120,700 (the "Executive Note"). Executive's obligations under the Executive
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Note shall be secured by a pledge of all of the Executive Units to the Company,
and in connection therewith, Executive shall enter into a pledge agreement in
the form of Annex B attached hereto (the "Pledge Agreement").
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(b) Within 30 days after Executive purchases any Executive Units from
the Company, Executive shall make an effective election with the Internal
Revenue Service under Section 83(b) of the Internal Revenue Code and the
regulations promulgated thereunder in the form of Annex C attached hereto.
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2. REPRESENTATIONS AND WARRANTIES; ACKNOWLEDGMENTS.
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(a) Representations and Warranties by Executive. In connection with
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the purchase and sale of the Executive Units hereunder, Executive represents and
warrants to the Company that:
(i) The Executive Units 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
Units shall not be disposed of in contravention of the Securities Act or
any applicable state securities laws.
(ii) Executive is an executive officer of Alliance, is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Executive Units.
(iii) Executive is able to bear the economic risk of his or her
investment in the Executive Units for an indefinite period of time because
the Executive Units have not been registered under the Securities Act and,
therefore, cannot be sold unless subsequently registered under the
Securities Act 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
Executive Units and has had full access to such other information
concerning the Company as he or she has requested. Execu tive has also
reviewed, or has had an opportunity to review, the following documents: (A)
the Operating Agreement; (B) the loan agreements, notes and related
documents with the senior and subordinated lenders of the Company; and (C)
the Company's audited and unaudited financial statements.
(v) The execution, delivery and performance of this Agreement
by Executive do not and shall not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or
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by which he or she is bound and upon the execution and delivery of this
Agreement by the Company, this Agreement shall be the legal, valid and
binding obligation of Executive, enforceable in accordance with its terms.
(vi) Executive is not a party to or bound by any employment
agreement, noncompete agreement or confidentiality agreement with any
person or entity other than Alliance.
(vii) Executive has consulted with independent legal counsel
regarding his or her rights and obligations under this Agreement and that
he or she fully understands the terms and conditions contained herein.
(b) Acknowledgments.
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(i) As an inducement to the Company to issue the Executive Units
to Executive, as a condition thereto, Executive acknowledges and agrees
that:
(A) neither the issuance of the Executive Units to Executive
nor any provision contained herein shall entitle Executive to remain
in the employment of Alliance or affect the right of Alliance to
terminate Executive's employment at any time; and
(B) the Company shall not have any duty or obligation to
disclose to Executive, and Executive shall have no 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 Executive Units upon the termination of Executive's
employment with Alliance or as otherwise provided hereunder.
(ii) The Company and Executive acknowledge and agree that this
Agreement has been executed and delivered, and the Executive Units have
been issued hereunder, in connection with and as a part of the compensation
and incentive arrangements between Alliance and Executive.
3. RIGHT TO PURCHASE EXECUTIVE UNITS UPON TERMINATION OF EMPLOYMENT.
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(a) Repurchase Option. In the event that Executive is no longer
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employed by Alliance for any reason (the date of such termination being referred
to herein as the "Termination Date"), the Executive Units, whether held by
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Executive or one or more Permitted Transferees, will be subject to repurchase by
the Company and the Investors pursuant to the terms and conditions set forth in
this Section 3 (the "Repurchase Option").
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(b) Termination Other than for Cause or Voluntary Termination. If
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Executive is no longer employed by Alliance as a result of Executive's death or
permanent disability (as determined by the Board in its good faith judgment) or
Executive's termination by Alliance without Cause, then on or after the
Termination Date, the Company may elect to purchase all or any portion of (1)
the Purchased Units and the Vested Incentive Units at a price per unit equal to
the Fair Market
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Value thereof (x) as determined on the Termination Date, if the Repurchase
Notice (as defined in paragraph (d) below) has been delivered within three
months after the Termination Date, or (y) as determined as of a date determined
by the Board within thirty (30) days prior to the delivery of the Repurchase
Notice, if the Repurchase Notice is delivered after the third month following
the Termination Date and (2) the Unvested Incentive Units at a price per unit
equal to the lower of their Original Value or the Fair Market Value thereof
determined as described in clause 3(b)(1) above.
(c) Voluntary Termination or Termination for Cause. If Executive is
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no longer employed by Alliance as a result of Executive's termination for Cause
or voluntary termination, then on or after the Termination Date, the Company may
elect to purchase all or any portion of the Executive Units at a price per unit
equal to the lower of the Original Value thereof or the Fair Market Value
thereof determined as described in clause 3(b)(1) above; provided, however, that
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on and after the seven and one-half year anniversary of the date hereof, if the
Executive is no longer employed by Alliance as a result of Executive's voluntary
termination, then on or after such Termination Date, the Company may elect to
purchase all or any portion of the Executive Units at a price per unit equal to
the Fair Market Value thereof determined as described in clause 3(b)(i) above.
(d) Repurchase Procedures. The Company may elect to exercise the
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right to purchase all or any portion of the Executive Units pursuant to the
Repurchase Option by delivering written notice (the "Repurchase Notice") to the
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holder or holders of Executive Units within 180 days after Executive's
Termination Date. The Repurchase Notice will set forth the number of Executive
Units to be acquired from such holder(s), the aggregate consideration to be paid
for such units and the time and place for the closing of the transaction. The
Company may elect to purchase all or any portion of the Unvested Incentive Units
without or before purchasing any Vested Incentive Units. If any of the Executive
Units are held by Permitted Transferees of Executive, the Company shall purchase
the units elected to be purchased from such holder(s) of Executive Units pro
rata according to the number of Executive Units held by such holder(s) at the
time of delivery of such Repurchase Notice (determined as nearly as practicable
to the nearest unit). If both Unvested Units and Vested Units are to be
purchased by the Company and Executive Units are held by Permitted Transferees
of Executive, the number of Unvested Units and Vested Units to be purchased will
be allocated among such holders pro rata according to the total number of
Executive Units to be purchased from such person.
(e) Investors' Rights.
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(i) If for any reason the Company does not elect to purchase all
of the Executive Units pursuant to the Repurchase Option prior to the 180th
day following the Termination Date, the Investors will be entitled to
exercise the Repurchase Option, in the manner set forth in this Section 3,
for the Executive Units the Company has not elected to purchase (the
"Available Units"). As soon as practicable, but in any event within thirty
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(30) days after the Company determines that there will be any Available
Units, the Company will deliver written notice (the "Option Notice") to the
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Investors setting forth the number of Available Units and the price for
each Available Unit.
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(ii) Each of the Investors will initially be permitted to
purchase up to its pro rata share (based upon the number of Class L Units
and Class A Units then held by such Investors) of the Available Units by
delivering written notice to the Company within twenty (20) days after
receipt of the Option Notice from the Company (such 20-day period being
referred to herein as the "Investor Election Period").
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(iii) As soon as practicable but in any event within five (5)
days after the expiration of the Investor Election Period, the Company
will, if necessary, notify the Investors electing to purchase Available
Units of any Available Units which Investors have elected not to purchase
and each of the electing Investors will be entitled to purchase any number
of the remaining Available Units (the "Second Option Notice"); provided,
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that if in the aggregate such Investors elect to purchase more than the
remaining Available Units, such remaining Available Units purchased by each
such Investor will be reduced on a pro rata basis based upon the number of
Class L Units and Class A Units then held by such Investors. Each Investor
may elect to purchase any of the remaining Available Units available to
such Investor by delivering written notice to the Company within five (5)
days after the delivery of the Second Option Notice (such 5-day period
being referred to herein as the "Second Period").
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(iv) As soon as practicable but in any event within five (5)
business days after the expiration of the Investor Election Period or the
Second Period (if any), the Company will, if necessary, notify the
holder(s) of Executive Units as to the number of Executive Units being
purchased from the holder(s) by the Investors (the "Supplemental Repurchase
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Notice"). The Supplemental Repurchase Notice will set forth the number of
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Executive Units the Company and each Investor will acquire from such
holder(s), the aggregate consideration to be paid for such units and the
time and place of the closing of the transaction.
(f) Closing. The closing of the transactions contemplated by this
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Section 3 will take place on the date designated by the Company in the
Repurchase Notice or the Supplemental Repurchase Notice, as the case may be,
which date will not be more than ninety (90) days after the delivery of such
notice. The Company and/or the Investors, as the case may be, will pay for the
Executive Units to be purchased pursuant to the Repurchase Option by delivery
of, in the case of each Investor, a check payable to the holder of Executive
Units, and in the case of the Company (i) a check payable to the holder of such
Executive Units, (ii) a note or notes payable in three equal annual installments
beginning on the first anniversary of the Termination Date and bearing interest
(payable quarterly) at a rate per annum equal to 8% or (iii) both (i) and (ii)
in the aggregate amount of the purchase price for such units. In addition, the
Company may pay the purchase price for such Units by offsetting amounts
outstanding under the Executive Note issued to the Company hereunder. Any notes
issued by the Company pursuant to this paragraph 3(f) shall be subject to any
restrictive covenants to which the Company is subject at the time of such
purchase. The Company and/or the Investors, as the case may be, will receive
customary representations and warranties from each seller regarding the sale of
the Executive Units, including but not limited to the representation that such
seller has good and marketable title to the Executive Units to be transferred
free and clear of all liens, claims and other encumbrances, other than liens
pursuant to the Pledge Agreement.
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(g) Termination of Repurchase Right. The rights of the Company and the
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Investors to repurchase Executive Units pursuant to this Section 3 shall
terminate upon a Sale of the Company.
4. RESTRICTIONS ON TRANSFER. The parties hereby agree that (i) prior
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to the Merger, the Executive Units cannot be transferred and (ii) after the
consummation of the Merger, the Executive Units will be subject to the
Securityholders Agreement.
5. DEFINITIONS.
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"Affiliate" shall have the meaning assigned to it in the Operating
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Agreement.
"Alliance" means Alliance Laundry Systems LLC, a Delaware limited
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liability company and wholly-owned subsidiary of RCL.
"Board" shall have the meaning assigned to it in the Operating
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Agreement.
"Cause" means (i) the commission of a felony or a crime involving
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moral turpitude or the commission of any other act or omission involving
dishonesty, disloyalty or fraud, (ii) conduct tending to bring Alliance or any
of its Subsidiaries into public disgrace or disrepute, (iii) failure to accept
and cooperate with actions and initiatives assigned to the Executive by the
Board of Directors or Chief Executive Officer of Alliance, (iv) gross negligence
or willful misconduct with respect to Alliance or any of its Subsidiaries or (v)
any breach of this Agreement.
"Common Units" is defined in the Operating Agreement and includes any
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equity securities issued or issuable directly or indirectly with respect to such
Common Units by way of any dividend or split or exchange or in connection with a
combination of units, recapitalization, merger, consolidation or other
reorganization.
"Credit Agreement" means that certain Credit Agreement, dated as of
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the date hereof, by and among the Company, Alliance, ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇▇▇▇ Commercial Paper Inc. and GE Capital Corporation as Administrative Agent.
"Executive Units" means collectively the Class A Units, Class L
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Units, the Class B Units and the Class C Units. Such Units shall continue to be
Executive Units in the hands of any holder other than Executive (except for the
Company, the Investors and transferees in a Public Sale), and except as
otherwise provided herein, each such other holder of Executive Units shall
succeed to all rights and obligations attributable to Executive as a holder of
Executive Units hereunder. Executive Units shall include both vested and
unvested Executive Units and shall include interests in the Company issued with
respect to Executive Units by way of any recapitalization.
"Fair Market Value" of each Executive Unit means the average of the
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closing prices of the sale of any such Unit on all stock exchanges on which such
security may at the time be listed, or, if there have been no sales on any such
exchange on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of such day, or, if on any day such security is
not so listed, the average of the representative bid and asked prices quoted in
the NASDAQ System
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as of 4:00 P.M., New York time, or, if on any day such security is not quoted in
the NASDAQ System, the average of the highest bid and lowest asked prices on
such day in the domestic over-the-counter market as reported by the National
Quotation Bureau Incorporated, or any similar successor organization, in each
such case averaged over a period of 21 days consisting of the day as of which
the Fair Market Value is being determined and the 20 consecutive business days
prior to such day, and with respect to any Unit which is not, as of the date of
determination, listed on any stock exchange or quoted in the NASDAQ System or
the over-the-counter market, the Fair Market Value thereof shall be the amount
which each such Unit would receive upon a complete liquidation of the Company
following a sale of the Company at its market value as determined in good faith
by the Board and Executive. If Board and Executive are unable to agree upon such
market value, it shall be determined in good faith by a nationally recognized
investment banking institution selected by the Board, who will consider in such
determination, among other things, (i) the Company's EBITDA (as defined in the
Credit Agreement) for the previous twelve months, (ii) EBITDA multiples paid in
recent acquisitions of comparable companies and (iii) current trends in the
industry and the Company's performance.
"Investors" means the persons listed on Schedule A hereto.
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"Original Value" $8,100 for each Class L Unit, $100 for each Class A
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Unit, $0.01 for each Class B Unit and $0.01 for each Class C Unit.
"Operating Agreement" shall have the meaning assigned to it in Section
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1(a) hereof.
"Other Investors" means the Members (as defined in the Operating
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Agreement) of the Surviving Entity, as of the date hereof, other than Bain/RCL,
L.L.C. and Raytheon Company.
"Permitted Transferee" shall have the meaning assigned to it in the
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Securityholders Agreement.
"Person" shall mean an individual, a partnership, a corporation, a
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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.
"Public Sale" means any sale pursuant to a registered public offering
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under the Securities Act or any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker.
"Sale of the Company" means (i) any sale of all or substantially all
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(as defined in the Model Business Corporation Act) of the assets of the Company
and its Subsidiaries on a consolidated basis in one transaction or series of
related transactions, (ii) any sale of all or substantially all of the Common
Units in one transaction or series of related transactions, excluding any sales
of Common Units in a Public Sale or (iii) a merger or consolidation which
accomplishes one of the foregoing; provided that the transactions contemplated
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by the Merger Agreement do not constitute a Sale of the Company.
"Securities Act" means the Securities Act of 1933, as amended from
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time to time.
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"Securityholders Agreement" means that certain Securityholders
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Agreement, dated the date hereof, to be entered into by and among the Surviving
Entity and its members.
"Subsidiary" shall have the meaning assigned to it in the Operating
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Agreement.
"Transfer" shall have the meaning assigned to it in the
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Securityholders Agreement.
"Units" means collectively the Class L Units, the Class A Units, the
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Class B Units and the Class C Units.
"Unvested Units" means any Executive Units which are not Vested Units.
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"Unvested Incentive Units" means any Incentive Units which have not
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become Vested Incentive Units.
"Vested Units" means any Purchased Units and any Vested Incentive
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Units.
"Vested Incentive Units" means any Incentive Units which have become
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vested on a monthly basis in accordance with the following schedule, if as of
each such date Executive is employed by Alliance:
Cumulative Percentage
Date of Incentive Units Vested
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Date of this Agreement 0%
May 5, 1999 20%
May 5, 2000 40%
May 5, 2001 60%
May 5, 2002 80%
May 5, 2003 100%;
provided, that upon the occurrence of a Sale of the Company, so long as
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Executive is employed by Alliance as of the date on which such Sale of the
Company occurs, all Incentive Units which have not yet become vested shall
immediately become vested.
6. NOTICES. Any notice provided for in this Agreement must be in
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writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the Investors at the addresses indicated in
the Company's records and to the other recipients at the address indicated
below:
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Notices to Executive:
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▇▇▇▇▇▇ ▇. Beach
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices to the Company:
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RCL Acquisitions, L.L.C.
c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ Place
Boston, Massachusetts 02116
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
with a copy to:
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▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Learner
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
7. GENERAL PROVISIONS.
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(a) Transfers in Violation of Agreement. Any Transfer or
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attempted Transfer of any Executive Units in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Executive Units as the owner of
such membership Units for any purpose.
(b) Severability. Whenever possible, each provision of this
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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.
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(c) Complete Agreement. This Agreement, those documents
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expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties 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
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counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) Successors and Assigns. Except as otherwise provided
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herein, this Agreement shall bind and inure to the benefit of and be enforceable
by Executive, the Company, the Investors and their respective successors and
assigns (including subsequent holders of Executive Units); provided, that the
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rights and obligations of Executive under this Agreement shall not be assignable
except in connection with a permitted transfer of Executive Units hereunder.
(f) Choice of Law. The corporate law of the State of Delaware
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shall govern all questions concerning the relative rights of the Company and its
stockholders. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules
hereto shall be governed by, and construed in accordance with, the laws of the
State of New York, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of New York or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of New York. In furtherance of the foregoing, the internal law of the
State of New York shall control the interpretation and construction of this
Agreement (and all schedules and exhibits hereto), even though under that
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
(g) Remedies. Each of the parties to this Agreement (including
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the Investors) 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
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.
(h) Amendment and Waiver. The provisions of this Agreement may
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be amended and waived only with the prior written consent of the Company and
Executive. The provisions of Section 3 may be amended and waived only with the
prior written consent of the Investors owning 60% of the Units on a fully-
diluted basis held by all Investors.
(i) Third-Party Beneficiaries. The parties hereto acknowledge
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and agree that the Investors are third party beneficiaries of this Agreement.
This Agreement will inure to the benefit of and be enforceable by the Investors
and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Unit Purchase Agreement on the date first written above.
RCL ACQUISITIONS, L.L.C.
By: ______________________________________
Its: ______________________________________
_________________________________________
▇▇▇▇▇▇ ▇. Beach
SCHEDULE A
INVESTORS
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▇▇▇▇/RCL, L.L.C.
Other Investors