FORM OF SALE PARTICIPATION AGREEMENT
__________ __, 1997
[NAME OF EMPLOYEE]
[TITLE]
KinderCare Learning Centers, Inc.
[2400 Presidents Drive]
[Montgomery, Alabama 36116]
Dear [NAME OF EMPLOYEE]:
You have entered into a Stockholder's Agreement, dated as of
__________ __, 199_ between KinderCare Learning Centers, Inc., a Delaware
corporation ("the Company"), and you (the "Stockholder's Agreement") relating to
the purchase from the Company of shares of the common stock, par value $.01 per
share, of the Company (the "Common Stock"). The undersigned, KKR Partners II,
L.P., a Delaware limited partnership ("KKR Partners"), and KLC Associates, L.P.,
a Delaware limited partnership ("KLC Associates"), also have purchased shares of
common stock of the Company and hereby agree with you as follows, effective upon
such purchase of common stock by you:
1. In the event that at any time KKR Partners, or KLC Associates, as
the case may be (each, a "Selling Partnership" and collectively, the "Selling
Partnerships"), proposes to sell for cash or any other consideration any shares
of common stock of the Company owned by it, in any transaction other than a
Public Offering (as defined in the Stockholder's Agreement) or a sale to an
affiliate of KKR Partners or KLC Associates, as the case may be, the Selling
Partnership will notify you or your Purchaser's Estate or Purchaser's Trust (as
such terms are defined in Section 2 of the Stockholder's Agreement), as the case
may be, in writing (a "Notice") of such proposed sale (a "Proposed Sale") and
the material terms of the Proposed Sale as of the date of the Notice (the
"Material Terms") promptly, and in any event not less than 15 days prior to the
consummation of the Proposed Sale and not more than 5 days after the execution
of the definitive agreement relating to the Proposed Sale, if any (the "Sale
Agreement"). If within 10 days of your or your Purchaser's Estate's or
Purchaser's Trust's, as the case may be, receipt of such Notice the Selling
Partnership receives from you or your Purchaser's Estate or Purchaser's Trust,
as the case may be, a written request (a "Request") to include Common Stock held
by you or your Purchaser's Estate or Purchaser's Trust, as the case may be, in
the Proposed Sale (which Request shall be irrevocable unless (a) there shall be
a material adverse change in the Material Terms or
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(b) if otherwise mutually agreed to in writing by you or your Purchaser's Estate
or Purchaser's Trust, as the case may be, and the Selling Partnership), the
Common Stock held by you will be so included as provided herein; provided that
only one Request, which shall be executed by you or your Purchaser's Estate or
Purchaser's Trust, as the case may be, may be delivered with respect to any
Proposed Sale for all Common Stock held by you or your Purchaser's Estate or
Purchaser's Trust. Promptly after the consummation of the transactions
contemplated thereby, the Selling Partnership will furnish you, your Purchaser's
Trust or your Purchaser's Estate with a copy of the Sale Agreement, if any. In
the event that both KKR Partners and KLC Associates propose to sell shares of
Common Stock in the Proposed Sale, the term "Selling Partnership" shall refer
only to KLC Associates and not to KKR Partners.
2. The number of shares of Common Stock which you or your Purchaser's
Estate or Purchaser's Trust, as the case may be, will be permitted to include in
a Proposed Sale pursuant to a Request will be the lesser of (a) the sum of the
number of shares of Common Stock then owned by you or your Purchaser's Estate or
Purchaser's Trust, as the case may be, plus all shares of Common Stock which you
are then entitled to acquire under an unexercised option to purchase shares of
Common Stock, to the extent such option is then vested or would become vested as
a result of the consummation of the Proposed Sale and (b) the sum of the shares
of Common Stock then owned by you or your Purchaser's Estate or Purchaser's
Trust, as the case may be, plus all shares of Common Stock which you are
entitled to acquire under an unexercised option to purchase shares of Common
Stock, whether or not fully vested, multiplied by a percentage calculated by
dividing the aggregate number of shares of Common Stock which KKR Partners and
KLC Associates propose to sell in the Proposed Sale by the total number of
shares of Common Stock owned by the Selling Partnership or, in the case both KKR
Partners and KLC Associates propose to sell in the Proposed Sale, KKR Partners
and KLC Associates. If one or more holders of shares of Common Stock who have
been granted the same rights granted to you or your Purchaser's Estate or
Purchaser's Trust, as the case may be, hereunder elect not to include the
maximum number of shares of Common Stock which such holders would have been
permitted to include in a Proposed Sale (the "Eligible Shares"), KKR Partners or
KLC Associates, or such remaining holders of shares of Common Stock, or any of
them, may sell in the Proposed Sale a number of additional shares of Common
Stock owned by any of them equal to their pro rata portion of the number of
Eligible Shares not included in the Proposed Sale, based on the relative number
of shares of Common Stock then held by each such holder, and such additional
shares of Common Stock which any such holder or holders propose to sell shall
not be included in any calculation made pursuant to the first sentence of this
Paragraph 2 for the purpose of determining the number of shares of Common Stock
which you or your Purchaser's Estate or Purchaser's Trust, as the case may be,
will be permitted to include in a Proposed Sale. KKR Partners and KLC
Associates, or
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any of them, may sell in the Proposed Sale additional shares of Common Stock
owned by any of them equal to any remaining Eligible Shares which will not be
included in the Proposed Sale pursuant to the foregoing.
3. Except as may otherwise be provided herein, shares of Common Stock
subject to a Request will be included in a Proposed Sale pursuant hereto and in
any agreements with purchasers relating thereto on the same terms and subject to
the same conditions applicable to the shares of Common Stock which the Selling
Partnership proposes to sell in the Proposed Sale. Such terms and conditions
shall include, without limitation: the sale price; the payment of fees,
commissions and expenses; the provision of, and representation and warranty as
to, information requested by the Selling Partnership; and the provision of
requisite indemnifications; provided that any indemnification provided by you,
your Purchaser's Estate or your Purchaser's Trust shall be pro rata in
proportion with the number of shares of Common Stock to be sold.
4. Upon delivering a Request, you or your Purchaser's Estate or
Purchaser's Trust, as the case may be, will, if requested by the Selling
Partnership, execute and deliver a custody agreement and power of attorney in
form and substance satisfactory to the Selling Partnership with respect to the
shares of Common Stock which are to be sold by you or your Purchaser's Estate or
Purchaser's Trust, as the case may be, pursuant hereto (a "Custody Agreement and
Power of Attorney"). The Custody Agreement and Power of Attorney will provide,
among other things, that you or your Purchaser's Estate or Purchaser's Trust, as
the case may be, will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares of Common Stock (duly endorsed in blank by the registered owner or owners
thereof) and irrevocably appoint said custodian and attorney-in-fact as your or
your Purchaser's Estate's or Purchaser's Trust's, as the case may be, agent and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on your or your Purchaser's Estate's or
Purchaser's Trust's, as the case may be, behalf with respect to the matters
specified therein.
5. Your or your Purchaser's Estate's or Purchaser's Trust's, as the
case may be, right pursuant hereto to participate in a Proposed Sale shall be
contingent on your or your Purchaser's Estate's or Purchaser's Trust's, as the
case may be, strict compliance with each of the provisions hereof and your or
your Purchaser's Estate's or Purchaser's Trust's or, as the case may be,
willingness to execute such documents in connection therewith as may be
reasonably requested by the Selling Partnership.
6. In the event of a Proposed Sale pursuant to Section 1 hereof, the
Selling Partnerships may elect, by so specifying in
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the Notice, to require you or your Purchaser's Estate or Purchaser's Trust, as
the case may be, to, and you or your Purchaser's Estate or Purchaser's Trust, as
the case may be, will, participate in such Proposed Sale in accordance with the
terms and provisions of Section 2, 3 and 4 hereof.
7. The obligations of KKR Partners and KLC Associates hereunder shall
extend only to you or your Purchaser's Estate or Purchaser's Trust, as the case
may be, and no other of your or your Purchaser's Estate's or Purchaser's
Trust's, as the case may be, successors or assigns shall have any rights
pursuant hereto.
8. This Agreement shall terminate and be of no further force and
effect on the fifth anniversary of the first occurrence of a Public Offering (as
defined in the Stockholder's Agreement).
9. All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given when delivered to the
party to whom it is directed:
(a) If to KKR Partners or KLC Associates, to it at the following
address:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
(b) If to you, to you at the address first set forth above herein;
(c) If to your Purchaser's Estate or Purchaser's Trust, at the
address provided to such partnerships by such entity;
or at such other address as any of the above shall have specified by notice in
writing delivered to the others by certified mail.
10. The laws of the State of Delaware (or if the Company
reincorporates in another state, of that state) shall govern the interpretation,
validity and performance of the terms of this Agreement. No suit, action or
proceeding with respect to this Agreement may be brought in any court or before
any similar authority other than in a court of competent jurisdiction in the
States of Delaware (or if the Company reincorporates in another state, of that
state), as the Selling
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Partnerships may elect in their sole discretion, and you hereby submit to the
non-exclusive jurisdiction of such courts for the purpose of such suit,
proceeding or judgment. You hereby irrevocably waive any right which you may
have had to bring such an action in any other court, domestic or foreign, or
before any similar domestic or foreign authority.
11. If KKR Partners or KLC Associates transfers its interest in the
Company to an affiliate of KKR Partners or KLC Associates, as the case may be,
such affiliate shall assume the obligations hereunder of KKR Partners or KLC
Associates, as the case may be.
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It is the understanding of the undersigned that you are aware that no
Proposed Sale presently is contemplated and that such a sale may never occur.
If the foregoing accurately sets forth our agreement, please
acknowledge your acceptance thereof in the space provided below for that
purpose.
Very truly yours,
KKR PARTNERS II, L.P.
By: KKR Associates L.P., the
General Partner
By: _______________________________
KLC ASSOCIATES, L.P.
By: KKR Associates L.P., the
General Partner
By: _______________________________
Accepted and agreed to:
By: _______________________________
[NAME OF EMPLOYEE]
