Exhibit 10.106
ALLIANCE LAUNDRY HOLDINGS LLC
EXECUTIVE UNIT REPURCHASE AGREEMENT
THIS EXECUTIVE UNIT REPURCHASE AGREEMENT (this "Agreement") is made as
of February 24, 2004, 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 4 hereof.
WHEREAS, Executive has, pursuant to a Purchase and Sale Agreement,
dated as of the date hereof, by among Executive, certain affiliates of Trust
Company of the West ("TCW"), certain affiliates of Sankaty Advisors, Inc.
("Sankaty"), and certain other Persons, agreed to acquire from TCW and Sankaty a
total of (i) 2.521 of the Company's Class L Units (the "Class L Units") at a
price of $4,112.65 per Unit and (ii) 22.689 of the Company's Class A Units (the
"Class A Units" and together with the Class L Units, the "Executive Units") at a
price of $50.78 per Unit; and
WHEREAS, in consideration for Executive's continued employment by
Company and/or one of its subsidiaries, Executive has agreed that the Executive
Units are subject to repurchase by the Company on the terms and subject to the
conditions set forth herein.
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. Representations and Warranties; Acknowledgments.
(a) In connection with the execution of this Agreement by
Executive, Executive represents and warrants to the Company that:
(i) 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.
(ii) 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.
(iii) 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) Executive acknowledges and agrees that:
(A) no 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
(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.
2. 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 2 (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 the Executive 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.
(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 2(b)
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 2(b) 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. 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).
(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 2, 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.
(f) Closing. The closing of the transactions contemplated by this
Section 2 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
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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 2 shall
terminate upon a Sale of the Company.
3. 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.
4. 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 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 A Units and the Class L
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 interests in the Company issued with respect to Executive
Units by way of any recapitalization.
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"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 $50.78 for each Class A Unit and $4,112.65 for
each Class L 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.
"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
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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 the Securityholders Agreement of the
Company, dated as of May 5, 1998, as the same has been and may be amended from
time to time.
"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.
5. 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:
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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.
6. 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 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 (i)
that certain IRA and Executive Unit Purchase Agreement, dated as of May 5, 1998,
by and between Executive and the Company or (ii) that certain 2003 Executive
Unit Purchase Agreement, dated as of August 1, 2003, 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
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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.
(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 2 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
--------------------------------
SCHEDULE A
Bain/RCL, L.L.C.
Other Investors