Registration Rights Agreement - Sealy Corp. and Bain Capital
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT is dated as of December 18, 1997 by and
among Sealy Corporation, a Delaware corporation (the "Company"); Bain Capital
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Fund V, L.P. ("Bain Fund V"); Bain Capital Fund V-B, L.P. ("Bain Fund V-B");
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BCIP Associates ("BCIP"); BCIP Trust Associates, L.P. ("BCIP Trust"); Harvard
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Private Capital Holdings, Inc. ("Harvard"); Sealy Investors 1, LLC ("SILLC 1");
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Sealy Investors 2, LLC ("SILLC 2"); Sealy Investors 3, LLC ("SILLC 3");
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Zell/Chilmark Fund, L.P. ("Zell"); and Randolph Street Partners II ("Randolph").
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As of the date hereof, Bain Fund V, Bain Fund V-B, BCIP, BCIP Trust,
Harvard, SILLC 1, SILLC 2, SILLC 3, Zell and Randolph each own a number of
shares of the Company's Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the
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following meanings.
"Affiliate" means, when used with reference to a specified Person, any
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Person that directly or indirectly controls or is controlled by or is under
common control with the specified Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). With respect to any Person who is an individual, "Affiliates" shall
also include, without limitation, any member of such individual's Family Group.
Notwithstanding the foregoing, for purposes of this Agreement SILLC shall not be
deemed an "Affiliate" of any Bain Fund or any Affiliate of any Bain Fund, and
neither any Bain Fund nor any Affiliate of any Bain Fund shall be deemed an
"Affiliate" of SILLC.
"Bain Funds" means Bain Fund V, Bain Fund V-B, BCIP, BCIP Trust and
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Randolph.
"Bain Funds Registrable Securities" means (i) all Common Stock acquired by,
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or issued or issuable to, any of the Bain Funds or any of their respective
Affiliates on or after the date hereof and (ii) all equity securities issued or
issuable directly or indirectly with respect to any Common Stock described in
clause (i) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Bain Funds Registrable Securities, such
securities shall cease to be Bain Funds Registrable Securities when they have
been distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public in compliance with Rule 144. For purposes
of this Agreement, a Person will be deemed to be a holder of Bain Funds
Registrable Securities whenever such Person has the right to acquire directly or
indirectly such Bain Funds Registrable Securities (upon conversion or exercise
in connection with a transfer of securities or
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otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
"Class A Common" means the Company's Class A Common Stock, par value $.01
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per share.
"Class B Common" means the Company's Class B Common Stock, par value $.01
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per share.
"Class L Common" means the Company's Class L Common Stock, par value $.01
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per share.
"Class M Common" means the Company's Class M Common Stock, par value $.01
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per share.
"Common Stock" means, collectively, Class A Common, Class B Common, Class L
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Common, Class M Common and any other common stock authorized by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Family Group" means, with respect to any Person who is an individual, (i)
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such Person's spouse, former spouse and descendants (whether natural or
adopted), parents and their descendants and any spouse of the foregoing persons
(collectively, "relatives") or (ii) the trustee, fiduciary or personal
representative of such Person and any trust solely for the benefit of such
Person and/or such Person's relatives.
"Harvard Registrable Securities" means (i) all Common Stock acquired by, or
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issued or issuable to, Harvard or any of its Affiliates on or after the date
hereof and (ii) all equity securities issued or issuable directly or indirectly
with respect to any Common Stock described in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Harvard Registrable Securities, such securities shall cease to be
Harvard Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public in compliance with Rule 144. For purposes of this Agreement, a Person
will be deemed to be a holder of Harvard Registrable Securities whenever such
Person has the right to acquire directly or indirectly such Harvard Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected.
"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, a governmental entity or any
department, agency or political subdivision thereof or any other entity or
organization.
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"Registrable Securities" means, collectively, the Bain Funds Registrable
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Securities, the Harvard Registrable Securities, the SILLC Registrable Securities
and the Zell Registrable Securities.
"Registration Expenses" means all expenses incident to the Company's
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performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
fees and expenses of custodians, internal expenses (including all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on the NASD automated quotation system, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company.
"Rule 144" means Rule 144 under the Securities Act (or any similar rule
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then in force).
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended.
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"SILLC Investors" means SILLC 1, SILLC 2 and SILLC 3.
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"SILLC Registrable Securities" means (i) all Common Stock acquired by, or
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issued or issuable to, any of the SILLC Investors or any of their respective
Affiliates on or after the date hereof and (ii) all equity securities issued or
issuable directly or indirectly with respect to any Common Stock described in
clause (i) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular SILLC Registrable Securities, such
securities shall cease to be SILLC Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public in compliance with Rule 144. For purposes
of this Agreement, a Person will be deemed to be a holder of SILLC Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such SILLC Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Zell Registrable Securities" means (i) all Common Stock acquired by, or
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issued or issuable to, Zell or any of its Affiliates on or after the date hereof
and (ii) all equity securities issued or issuable directly or indirectly with
respect to any Common Stock described in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Zell Registrable Securities, such securities shall cease to be Zell
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public in
compliance with Rule 144. For purposes of this Agreement, a Person will be
deemed to
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be a holder of Zell Registrable Securities whenever such Person has the right to
acquire directly or indirectly such Zell Registrable Securities (upon conversion
or exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
2. Demand Registrations.
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(a) Requests for Registration. At any time after the date hereof, the
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holder(s) of a majority of the Bain Funds Registrable Securities may request
registration under the Securities Act of all or any portion of their Registrable
Securities on Form S-1 or any similar long-form registration (a "Long-Form
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Registration"), or on Form S-2 or S-3 or any similar short-form registration (a
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"Short-Form Registration") if such a short form is available. All registrations
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requested pursuant to this Section 2(a) are referred to herein as "Demand
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Registrations". Each request for a Demand Registration shall specify the
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approximate number of Registrable Securities requested to be registered, the
anticipated method or methods of distribution and the anticipated per share
price range for such offering. Within ten days after receipt of any such
request, the Company will give written notice of such requested registration
(which shall specify the intended method of disposition of such Registrable
Securities) to all other holders of Registrable Securities (a "Company Notice")
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and the Company will include (subject to the provisions of this Agreement) in
such registration, all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 20 days after the
delivery of such Company Notice.
(b) Long-Form Registrations. The holders of Bain Funds Registrable
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Securities will be entitled to only three Long-Form Registrations. A
registration will not count as one of the permitted Long-Form Registrations
unless and until it has become effective and no Long-Form Registration will
count as a Long-Form Registration unless the applicable Bain Funds and the
holders of Registrable Securities joining therein are able to register and sell
at least 75% of the Registrable Securities requested to be included by them in
such registration; provided that in any event the Company will pay all
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Registration Expenses in connection with any registration initiated as a Long-
Form Registration whether or not it has become effective, and whether or not
such registration has counted as one of the permitted Long-Form Registrations.
(c) Short-Form Registrations. The holders of Bain Funds Registrable
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Securities will be entitled to unlimited Short-Form Registrations. Demand
Registrations will be Short-Form Registrations whenever the Company is permitted
to use any applicable short form. After the Company has become subject to the
reporting requirements of the Exchange Act, the Company will use its best
efforts to make Short-Form Registrations on Form S-3 available for the sale of
Bain Funds Registrable Securities.
(d) Priority on Demand Registrations.
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(i) The Company will not include in any Demand Registration any securities
which are not Registrable Securities unless holder(s) of a majority of the Bain
Funds Registrable Securities otherwise consent.
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(ii) If a Demand Registration is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities, requested
to be included in such offering exceeds the number of Registrable Securities and
other securities, if any, which can be sold in an orderly manner in such
offering within a price range acceptable to holder(s) of a majority of the Bain
Funds Registrable Securities and without adversely affecting the marketability
of the offering, then the Company will include in such registration (A) first,
the number of Registrable Securities requested to be included in such
registration, pro rata from among the holders of such Registrable Securities
according to the number of Registrable Securities requested by them to be so
included, and (B) second, any other securities of the Company requested to be
included in such registration, in such manner as the Company may determine.
(e) Restrictions on Demand Registrations.
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(i) The Company will not be obligated to file any registration statement
with respect to any Long-Form Registration within 180 days after the effective
date of a previous Long-Form Registration or a previous registration in which
the holders of Registrable Securities were given piggyback rights pursuant to
Section 3 and in which there were included not less than 80% of the number of
Registrable Securities requested to be included.
(ii) The Company may postpone for up to 90 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company determines that such Demand Registration would reasonably be expected to
have a material adverse effect on any proposal or plan by the Company or any of
its Subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganiza tion or similar transaction; provided that in such event the holders
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of Bain Funds Registrable Securities initially requesting such Demand
Registration will be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration will not count as one of the permitted
Demand Registrations hereunder and the Company will pay all Registration
Expenses in connection with such requested registration. The Company may delay
a Demand Registration under this clause (ii) only once during any twelve-month
period.
(f) Selection of Underwriters. In the case of a Demand Registration for an
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underwritten offering, the holders of a majority of the Bain Funds Registrable
Securities to be included in such Demand Registration will have the right to
select the investment banker(s) and manager(s) to administer the offering (which
investment banker(s) and manager(s) will be nationally recognized) subject to
the Company's approval which will not be unreasonably withheld.
(g) Other Registration Rights. Except as provided in this Agreement, the
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Company (i) will not grant to any Persons the right to request the Company to
register any equity or similar securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without the
prior written consent of the holders of a majority of the Bain Funds Registrable
Securities and (ii) will not grant to any Persons any such rights to the extent
such rights conflict with, or are adverse to, the rights of the holders of
Registrable Securities without the consent of holders of at least two-thirds of
the Registrable Securities (other than the Bain Registrable Securities) and a
majority of the holders of the Bain Registrable Securities.
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3. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any of
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its Common Stock under the Securities Act for its own account or for the account
of any holder of Common Stock (other than pursuant to a Demand Registration, and
other than pursuant to a registration statement on Form S-8 or S-4 or any
similar form) (a "Piggyback Registration"), the Company will give prompt written
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notice to all holders of Registrable Securities of its intention to effect such
a registration and will include in such registration (subject to the provisions
of this Agreement) all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 20 days after the
receipt of the Company's notice.
(b) Priority on Primary Registrations. If a Piggyback Registration is in
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part an underwritten primary registration on behalf of the Company and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a price
range acceptable to the Company and without adversely affecting the
marketability of the offering, then the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata from among the holders of such Registrable Securities
according to the number of Registrable Securities requested by them to be so
included, and (iii) third, any other securities requested to be included in such
registration, in such manner as the Company may determine.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
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underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration and without adversely affecting the marketability of the
offering, then the Company will include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, pro rata from among such holders and the holders of such
Registrable Securities according to the number of Registrable Securities
requested by them to be so included, and (ii) second, any other securities
requested to be included in such registration, in such manner as the Company may
determine.
(d) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities pursuant to
Section 2 or pursuant to this Section 3, and if such previous registration has
not been withdrawn or abandoned, then all the parties hereto agree that the
Company will not file or cause to be effected any other registration of any of
its equity or similar securities or securities convertible or exchangeable into
or exercisable for its equity or similar securities under the Securities Act
(except on Forms S-4 or S-8 or any successor form or in connection with a Demand
Registration), whether on its own behalf or at the request of any holder or
holders of such securities, until a period of at least 180 days has elapsed from
the effective date of such previous registration.
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4. Holdback Agreements.
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(a) Each holder of Registrable Securities hereby agrees not to effect any
sale or distribution of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 180-day period beginning on the effective date of
any underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration), unless the underwriters
managing such underwritten registration otherwise agree (which agreement shall
be equally applicable to all holders of Registrable Securities).
(b) The Company (i) will not effect any sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and during the 180-day
period beginning on the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Forms S-4 or S-8 or any successor
form), unless the underwriters managing such underwritten registration otherwise
agree (which agreement shall be equally applicable to all holders of Registrable
Securities), and (ii) will cause each holder of at least 2% (on a fully diluted
basis) of Common Stock, or any securities convertible into or exchangeable or
exercisable for Common Stock, purchased from the Company at any time after the
date of this Agreement (other than in a registered public offering) to agree not
to effect any sale or distribution of any such securities during such period
(except as part of such underwritten registration, if otherwise permitted),
unless the underwriters managing such underwritten registration otherwise agree.
5. Registration Procedures. Whenever the holders of Registrable
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such registration
statement to become effective (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
will furnish to the counsel selected pursuant to Section 6(b) below copies of
all such documents proposed to be filed, which documents will be subject to the
prompt review and reasonable comment of such counsel);
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such
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registration statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process (i.e., service of
process which is not limited solely to securities law violations) in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the Nasdaq National Market System ("Nasdaq
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Market") and, if listed on the Nasdaq Market, use its best efforts to secure
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designation of all such Registrable Securities covered by such registration
statement as a Nasdaq "National Market System security" within the meaning of
Rule 11Aa2-1 under the Exchange Act or, failing that, to secure Nasdaq Market
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the National
Association of Securities Dealers;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements
in customary form) and take all such other actions as the holders of a majority
of the Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a split or a combination of
stock or units);
(i) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested
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by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 promulgated thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company will use its best efforts promptly to obtain the
withdrawal of such order;
(l) use its best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities; and
(m) obtain a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the holders of a majority of the
Registrable Securities being sold reasonably request.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if in such holder's
sole and exclusive judgment, such holder is or might be deemed to be an
underwriter or a controlling person of the Company, such holder shall have the
right to require (i) the insertion therein of language, in form and substance
satisfactory to such holder and presented to the Company in writing, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in force, the
deletion of the reference to such holder; provided, that with respect to this
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clause (ii) such holder shall furnish to the Company an opinion of counsel to
such effect, which opinion and counsel shall be reasonably satisfactory to the
Company.
6. Registration Expenses.
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(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all Registration Expenses,
will be borne by the Company.
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(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
initially requesting such registration.
7. Indemnification.
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(a) By the Company. The Company agrees to, and will cause each of its
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subsidiaries to agree to, indemnify, to the fullest extent permitted by law,
each holder of Registrable Securities, its officers, directors, trustees,
employees, stockholders and general and limited partners and each Person who
controls such holder (within the meaning of the Securities Act and Exchange Act)
against any and all losses, claims, damages, liabilities and expenses, joint or
several, arising out of or based upon any untrue or alleged untrue statement of
material fact contained in any registration statement, reports required and
other documents filed under the Exchange Act, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto, together with any
documents incorporated therein by reference, or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation or alleged violation by the
Company or any of its subsidiaries of any federal, state, foreign or common law
rule or regulation and relating to action or inaction in connection with any
such registration, disclosure document or other document and shall reimburse
such holder, officer, director, trustee, employee, stockholder, partner or
controlling Person for any legal or other expenses, including any amounts paid
in any settlement effected with the consent of the Company, which consent will
not be unreasonably withheld or delayed, incurred by such holder, officer,
director, trustee, employee, stockholder, partner or controlling Person in
connection with the investigation or defense of such loss, claim, damage,
liability or expense, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) By the Holders. In connection with any registration statement in which
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a holder of Registrable Securities is participating, each such holder will
furnish to the Company in writing such information and affidavits about such
holder as the Company reasonably requests for use in connection with any such
registration statement or prospectus and, to the extent permitted by law, will
indemnify the Company, its directors and officers and each Person who controls
the Company (within the meaning of the Securities Act) and the other holders of
Registrable Securities against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided, that the obligation to indemnify
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will be individual, not joint and several, for each holder and will be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
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(c) Claim Procedures. Any Person entitled to indemnification hereunder
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will (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice will not impair any Person's right to indemnification hereunder to
the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay
(i) the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim or (ii) any settlement made by any indemnified party without such
indemnifying party's consent (but such consent will not be unreasonably
withheld).
(d) Survival; Contribution. The indemnification provided for under this
----------------------
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities. The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's indemnification is unavailable for any reason.
8. Participation in Underwritten Registrations. No Person may participate
-------------------------------------------
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements (with terms customary in underwriting agreements for
secondary distributions) approved by the Person or Persons entitled hereunder to
approve such arrangements and (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements;
provided, that no holder of Registrable Securities included in any underwritten
--------
registration shall be required to make any representations or warranties to the
Company or the underwriters (other than representations and warranties regarding
such holder and such holder's intended method of distribution) or to undertake
any indemnification or contribution obligations to the Company or the
underwriters with respect thereto, except as otherwise provided in Section 7.
9. Rule 144 Reporting. With a view to making available to the holders of
------------------
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep current public information available, within the meaning
of Rule 144 or any similar or analogous rule promulgated under the Securities
Act, at all times after it has become subject to the reporting requirements of
the Exchange Act;
-11-
<PAGE>
(b) file with the SEC, in a timely manner, all reports and other documents
required of the Company under the Securities Act and Exchange Act (after it has
become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable Securities, furnish to
such Person forthwith upon request, a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time
commencing 90 days after the effective date of the first registration filed by
the Company for an offering of its securities to the general public), the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as such Person may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
10. Notices. All notices, demands or other communications to be given or
-------
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered if delivered
personally, sent via a nationally recognized overnight courier, or sent via
facsimile to the recipient, or if sent by certified or registered mail, return
receipt requested, will be deemed to have been given two business days
thereafter. Such notices, demands and other communications will be sent to the
address indicated below:
To the Company:
--------------
Sealy Corporation
c/o Sealy, Inc.
1228 Euclid Avenue
Cleveland, OH 44115
Attention: Chief Executive Officer
Telecopy No.: (216) 522-1976
With a copy, which shall not constitute notice, to:
--------------------------------------------------
Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Josh Bekenstein and Paul Edgerley
Telecopy No.: (617) 572-3274
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Lance C. Balk, Esq.
Telecopy No.: (212) 446-4900
-12-
<PAGE>
To any Bain Fund:
----------------
Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Josh Bekenstein and Paul Edgerley
Telecopy No.: (617) 572-3274
With a copy, which shall not constitute notice, to:
--------------------------------------------------
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Lance C. Balk, Esq.
Telecopy No.: (212) 446-4900
To Harvard:
----------
Harvard Private Capital Holdings, Inc.
c/o Harvard Management Company, Inc.
600 Atlantic Avenue, 26th Floor
Boston, MA 02210
Attention: Mark Rosen
Telecopy No.: (617) 523-1063
With a copy, which shall not constitute notice, to:
--------------------------------------------------
Ropes & Gray
One International Place
Boston, MA 02110
Attention: Larry Jordan Rowe
Telecopy No.: (617) 951-7050
To SILLC 1:
----------
Sealy Investors 1, LLC
c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Josh Bekenstein and Paul Edgerley
Telecopy No.: (617) 572-3274
Chase Capital Partners
380 Madison Avenue
New York, New York 10017
-13-
<PAGE>
Attention: Jonas Steinman
Telecopy No.: (212) 622-3101
With a copy, which shall not constitute notice, to:
--------------------------------------------------
O'Sullivan Graev & Karabell LLP
30 Rockefeller Plaza, 24th Floor
New York, New York 10112
Attention: Daniel Rayner
Telecopy No.: (212) 728-5950
To SILLC 2:
----------
Sealy Investors 2, LLC
c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Josh Bekenstein and Paul Edgerley
Telecopy No.: (617) 572-3274
CIBC Wood Gundy Capital
425 Lexington Avenue
New York, New York 10017
Attention: Jay Levine
Telecopy No.: (212) 885-4998
With a copy, which shall not constitute notice, to:
--------------------------------------------------
O'Sullivan Graev & Karabell LLP
30 Rockefeller Plaza, 24th Floor
New York, New York 10112
Attention: Daniel Rayner
Telecopy No.: (212) 728-5950
To SILLC 3:
----------
Sealy Investors 3, LLC
c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Josh Bekenstein and Paul Edgerley
Telecopy No.: (617) 572-3274
BancBoston Investments, Inc.
100 Federal Street
Mail Stop 01-08-05
-14-
<PAGE>
Boston, MA 02110
Attention: Brian Gerrity
Telecopy No.: (617) 434-4873
With a copy, which shall not constitute notice, to:
--------------------------------------------------
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
Attention: T. Malcolm Sandilands
Telecopy No.: (617) 951-8736
To Zell:
-------
Zell/Chilmark Fund, L.P.
Two North Riverside Plaza
Suite 1500
Chicago, IL 60606
Attention: Rod F. Dammeyer
Telecopy No.: (312) 902-1512
With a copy, which shall not constitute notice, to:
--------------------------------------------------
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1601
Chicago, IL 60606
Attention: Alisa Singer, Esq.
Telecopy No.: (312) 454-0335
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: William A. Groll, Esq.
Telecopy No.: (212) 225-3999
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.
11. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company will not enter into any
--------------------------
agreement which is inconsistent with or violates the rights granted to the
holders of Registrable Securities in this Agreement.
-15-
<PAGE>
(b) Remedies. Any Person having rights under any provision of this
--------
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may 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 other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may be
----------------------
amended or waived only upon the prior written consent of the Company and holders
of at least 75% of the Registrable Securities; provided, that no amendment shall
--------
be effective without the consent of a holder of Registrable Securities to the
extent that such amendment would adversely affect the rights or obligations of
such holder of Registrable Securities hereunder in any material respect, and any
amendment to which such written consent is obtained will be binding upon the
Company and all holders of Registrable Securities.
(d) Successors and Assigns. All covenants and agreements in this Agreement
----------------------
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Severability. Whenever possible, each provision of this Agreement will
------------
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 prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in two or
------------
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement are
--------------------
inserted for convenience only and do not constitute a part of this Agreement.
(H) GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE WILL GOVERN
-------------
ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK,
-16-
<PAGE>
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(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.
* * * * *
-17-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
SEALY CORPORATION
By:
----------------------------
Name:
Title:
BAIN CAPITAL FUND V, L.P.
By: Bain Capital Partners V, L.P.,
its General Partner
By: Bain Capital Investors V, Inc.,
its General Partner
By:
----------------------------
Name:
Title:
BAIN CAPITAL FUND V-B, L.P.
By: Bain Capital Partners V, L.P.,
its General Partner
By: Bain Capital Investors V, Inc.,
its General Partner
By:
----------------------------
Name:
Title:
<PAGE>
CONTINUATION OF SIGNATURES FOR THIS REGISTRATION RIGHTS AGREEMENT:
BCIP ASSOCIATES
By:
----------------------------
A General Partner
BCIP TRUST ASSOCIATES, L.P.
By:
----------------------------
A General Partner
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
SEALY INVESTORS 1, LLC
By: Bain Capital Partners V, L.P.,
its Administrative Member
By: Bain Capital Investors V, Inc.
Its General Partner
By:
----------------------------
Name:
Title:
<PAGE>
CONTINUATION OF SIGNATURES FOR THIS REGISTRATION RIGHTS AGREEMENT:
SEALY INVESTORS 2, LLC
By: Bain Capital Partners V, L.P.,
its Administrative Member
By: Bain Capital Investors V, Inc.
Its General Partner
By:
----------------------------
Name:
Title:
SEALY INVESTORS 3, LLC
By: Bain Capital Partners V, L.P.,
its Administrative Member
By: Bain Capital Investors V, Inc.
Its General Partner
By:
----------------------------
Name:
Title:
RANDOLPH STREET PARTNERS II
By:
----------------------------
A General Partner
ZELL/CHILMARK FUND, L.P.
By: ZC Limited Partnership, its General Partner
By: ZC Partnership, its General Partner
By: ZC, Inc., a Partner
By:
----------------------------
Name:
Title: