Exhibit 10.92
EXECUTION COPY
ALLIANCE LAUNDRY HOLDINGS LLC
2003 EXECUTIVE UNIT AGREEMENT
THIS 2003 EXECUTIVE UNIT AGREEMENT (this "Agreement") is made as of
August 1, 2003, by and between Alliance Laundry Holdings LLC, a Delaware limited
liability company (the "Company") and Scott Spiller ("Executive"). Any
capitalized terms used but not defined herein shall have the meanings assigned
to them in Section 5 hereof.
WHEREAS, Executive, together with other senior executive employees of
the Company, is the owner of certain equity interests of the Company;
WHEREAS, in addition to those interests already owned by Executive, the
Company desires that Executive purchase additional equity interests of the
Company;
WHEREAS, the Board has, pursuant to that certain Amendment No. 1 to the
Amended and Restated Limited Liability Company Agreement of the Company,
authorized the creation of the Class M Units of the Company; and
WHEREAS, in consideration of Executive's good and valuable service to
the Company and as an incentive for Executive to continue to provide such good
and valuable service to the Company, the Board desires that Executive (i)
purchase 26.926 of the Company's Class M Units (the "Class M Units") at a price
of $0.01 per Unit. and (ii) purchase 257.438 of the Company's Class B Units (the
"Class B Units" and together with the Class M Units, the "Executive Units") at a
price of $0.01 per Unit.
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 Executive hereby agree as
follows:
1. Purchase and Sale of Executive Units.
(a) Upon execution of this Agreement, Executive shall
purchase, and the Company shall sell, 26.926 Class M Units at a price of $0.01
per unit and 257.438 Class B Units at a price of $0.01 per unit. The Company
shall deliver to Executive proper written evidence indicating Executive's
ownership of such Class B Units and Class M Units, and Executive shall make a
cash payment to the Company in an aggregate amount of $2.84.
(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 A attached hereto.
2. Representations and Warranties; Acknowledgments.
(a) In connection with 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 employee of the Company or
one of its subsidiaries, 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.
(v) The execution, delivery and performance of this
Agreement by Executive does 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 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, non-compete agreement or confidentiality agreement with
any person or entity other than the Company.
(vii) Executive has consulted with independent legal
counsel regarding his or her rights and obligations under this Agreement and he
or she fully understands the terms and conditions contained herein.
(b) Acknowledgements.
(i) As an inducement to the Company to issue the
Executive Units to Executive and 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 the Company or any of its subsidiaries or affect the
right of the Company or any of its subsidiaries to terminate Executive's
employment at any time; and
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(B) the Company shall not have any duty or
obligation to disclose to Executive, and Executive shall not have the right to
be advised of, any material information regarding the Company or 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 the Company
or any of its subsidiaries 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 the Company and its subsidiaries and Executive.
3. Right to Purchase Executive Units Upon Termination of
Employment.
(a) Repurchase Option. In the event that Executive is no longer
employed by the Company or any of its subsidiaries for any reason (the date of
such termination being referred to herein as the "Termination Date"), the
Executive Units, whether held by 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").
(b) Termination Other than for Cause or Voluntary Termination. If
Executive is no longer employed by the Company or any of its subsidiaries 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 the Company or any of
its subsidiaries without Cause, then on or after the Termination Date, the
Company may elect to purchase all or any portion of (1) the Vested Units at a
price per Unit equal to the Fair Market 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 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 (1) above.
(c) Voluntary Termination or Termination for Cause. If Executive
is no longer employed by the Company or any of its subsidiaries as a result of
Executive's termination for Cause or resignation, 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
(b)(1) above; provided, however, that if Executive resigns on or after the fifth
anniversary of the date hereof, 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)(1) above.
(d) Repurchase Procedures. The Company may elect to exercise the
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
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
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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 Units without
or before purchasing any Vested 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) Investor's Rights.
(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 (30) days after
the Company determines that there will be any Available Units, the Company will
deliver written notice (the "Option Notice") to the Investors setting forth the
number of Available Units and the price for each Available Unit.
(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 any class 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").
(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 not elected 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, that if in the aggregate
such Investors elect to purchase more than the remaining Available Units, such
remaining Available Units of a particular class 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").
(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 Notice"). The
Supplemental Repurchase Notice will set forth the number of 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.
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(f) Closing. The closing of the transactions contemplated by this
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. Any notes issued
by the Company pursuant to this paragraph (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.
(g) Termination of Repurchase Right. The rights of the Company and
the 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 the
Executive Units will be subject to all of the restrictions and other terms and
conditions set forth in the Securityholders Agreement.
5. Definitions.
"Board" shall have the meaning assigned to it in the Operating
Agreement.
"Cause" means (i) the commission of a felony or a crime involving moral
turpitude or the commission of any other act or omission involving dishonesty,
disloyalty or fraud, (ii) conduct tending to bring the Company or any of
subsidiaries into public disgrace or disrepute, (iii) failure to accept and
cooperate with lawful actions and initiatives assigned to the Executive by the
board of managers of the Company or any of its subsidiaries or the Company's
CEO, (iv) gross negligence or willful misconduct with respect to Alliance or any
of its Subsidiaries, (v) any breach of this Agreement or (vi) Executive or any
member of his family shall engage in any Restricted Activity, without the prior
written approval of the Board.
"Common Units" shall have the meaning assigned to it in the Operating
Agreement and includes any 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.
"Executive Units" means collectively the Class B Units and the Class M
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
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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
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 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 the 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 Company's senior debt financing) 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.
"Original Value" means $0.01 for each Class B Unit and $0.01 for each
Class M Unit.
"Operating Agreement" shall mean the Amended and Restated Limited
Liability Company Agreement of the Company, dated as of May 5, 1998, as the same
has been shall be amended in accordance with its terms.
"Other Investors" means the Members (as defined in the Operating
Agreement) of the Surviving Entity, as of May 5, 1998, other than Bain/RCL,
L.L.C. and Raytheon Company.
"Permitted Transferee" shall have the meaning assigned to it in the
Securityholders Agreement.
"Person" shall mean 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.
"Public Sale" means any sale pursuant to a registered public offering
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.
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"Restricted Activity" shall mean directly or indirectly owning any
interest in, managing, controlling, participating in, consulting with, rendering
services for, or in any manner engaging in any business with any customer,
supplier, competitor or other person having a business relation with the Company
or any of its subsidiaries; provided however that the term "Restricted Activity"
shall not include passive ownership of not more than 2% of the outstanding stock
of any class of a corporation which is publicly traded, so long as Executive has
no active participation in the business of that corporation.
"Sale of the Company" means (i) any sale of all or substantially all
(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
by the Merger Agreement do not constitute a Sale of the Company.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Securityholders Agreement" means that certain Securityholders
Agreement dated the date hereof to be entered into by and among the Surviving
Entity and its members.
"Transfer" shall have the meaning assigned to it in the Securityholders
Agreement.
"Units" means collectively the Class L Units, the Class M Units, the
Class A Units, the Class B Units and the Class C Units.
"Unvested Units" means any Executive Units which are not Vested Units.
"Vested Units" means any Executive Units which have become vested on a
monthly basis in accordance with the following schedule, if as of each such date
Executive is employed by the Company or any of its subsidiaries:
Cumulative Percentage of
Date Executive Units Vested
December ___, 2003 20%
December ___, 2004 40%
December ___, 2005 60%
December ___, 2006 80%
December ___, 2007 100%
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provided, that upon the occurrence of a Sale of the Company, so long as
Executive is employed by the Company or one of its subsidiaries as of the date
on which such Sale of the Company is consummated, all Executive Units which have
not yet become vested shall immediately become vested.
6. Notices. Any notice provided for in this Agreement must be in
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:
Notices to Executive:
Scott Spiller
341 Overland Trail
Oshkosh, WI 54904
Notices to the Company:
Alliance Laundry Holdings LLC
c/o Bain Capital Partners LLC
111 Huntington Ave.
Boston, MA 02199
Attn: Edward Conard
Stephen Zide
Ted Berk
with a copy to:
Kirkland & Ellis LLP
200 E. Randolph Dr.
Chicago, IL 60601
Attn: Matthew E. Steinmetz, P.C.
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.
(a) Transfers in Violation of Agreement. Any Transfer or 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
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision
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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 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.
Notwithstanding the foregoing, this Agreement does not supersede and preempt
that certain IRA and Executive Unit Purchase Agreement, dated as of May 5, 1998,
by and between Executive and the Company.
(d) Counterparts. This Agreement may be executed in separate
counterparts (including by means of telecopied signature pages), 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 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
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
shall govern all questions concerning the relative rights of the Company and its
unitholders. 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 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.
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(h) Amendment and Waiver. The provisions of this Agreement may 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 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 and delivered this
Agreement as of the date first above written.
ALLIANCE LAUNDRY HOLDINGS LLC
By: /s/ Thomas F. L'Esperance
------------------------------
Name: Thomas F. L'Esperance
Its: President and Chief
Executive Officer
EXECUTIVE
/s/ Scott Spiller
------------------------------
ANNEX A
________________, 2003
PROTECTIVE ELECTION TO INCLUDE SECURITIES IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned purchased Class M Units and Class B Units (the
"Units") of Alliance Laundry Holdings LLC (the "Company") on ____________, 2003
(the "Closing Date").
Based on current Treasury Regulation Section 1.721-1(b),
Proposed Treasury Regulation Section 1.721-1(b)(1), and Revenue Procedures 93-27
and 2001-43, the undersigned does not believe that issuance of the Units to the
undersigned is subject to the provisions of Section 83 of the Internal Revenue
Code (the "Code"). In the event that the sale is so treated, however, the
undersigned desires to make an election to have the receipt of the Units taxed
under the provisions of Code Section 83(b) at the time the undersigned acquired
the Units.
Therefore, pursuant to Code Section 83(b) and Treasury
Regulation Section 1.83-2 promulgated thereunder, the undersigned hereby makes
an election, with respect to the Units (described below), to report as taxable
income for calendar year 2003 the excess (if any) of the Units' fair market
value on ______________, 2003 over the purchase price thereof.
The following information is supplied in accordance with
Treasury Regulation Section 1.83-2(e):
1. The name, address and social security number of the undersigned:
_________________
_________________
_________________
_________________
Social Security No: _________________
2. A description of the property with respect to which the election is being
made: ________ Class M Units and ________ Class B Units.
3. The date on which the property was transferred: _____________, 2003. The
taxable year for which such election is made: calendar year 2003.
4. The restrictions to which the property is subject: If the undersigned is
terminated for cause or resigns, the Units are subject to repurchase by the
Company at the lower of their fair market value or their original cost. If
the undersigned's employment is otherwise terminated, the Units which are
unvested are subject to repurchase by the Company at the lower of their
fair market value or their original cost and the Units which are vested are
subject to repurchase by the Company at their fair market value. The Units
vest on a monthly basis over 5 years.
5. The fair market value on ______________, 2003 of the property with respect
to which the election is being made, determined without regard to any lapse
restrictions: $0.01 per Class M Unit and $0.01 per Class B Unit.
6. The amount paid for such property: $0.01 per Class M Unit and $0.01 per
Class B Unit.
* * * * *
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A copy of this election has been furnished to the Secretary of
the Company pursuant to Treasury Regulations Section 1.83-2(e)(7).
Dated: _________________, 2003
__________________________________
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SCHEDULE A
Bain/RCL, L.L.C.
Other Investors