Exhibit 10.8
SALE PARTICIPATION AGREEMENT
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__________, 1998
To: The Person whose name
and address are set forth
on the signature page hereof
Dear Sir or Madam:
You have entered into a Management Stockholder's Agreement, dated as
of April 1, 1998 (the "STOCKHOLDER'S AGREEMENT"), with Corning Consumer Products
Company, a Delaware corporation (the "COMPANY"), relating to the purchase by you
from CCPC Acquisition Corp. (the "PARENT") of shares of common stock (the
"COMMON STOCK") of the Company. Parent hereby agrees with you as follows,
effective upon your purchase of Common Stock:
1. In the event that at any time the Parent 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 Associates, the Parent
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 Parent receives from you or your
Purchaser's Estate or Purchaser's Trust, as the case may be, a written request
(a "PURCHASER 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
Purchaser Request shall be irrevocable unless (a) there shall be a material
adverse change in the Material Terms or (b) otherwise mutually agreed to in
writing by you or your Purchaser's Estate or Purchaser's Trust, as the case may
be, and the Parent), the Common Stock held by you will be so included as
provided herein; PROVIDED that only one Purchaser 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 Parent will furnish
you, your Purchaser's Trust or your Purchaser's Estate, as the case may be, with
a copy of the Sale Agreement, if any.
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 Purchaser 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 the Parent proposes to sell in the Proposed Sale by the
total number of shares of Common Stock owned by the Parent. 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"), the Parent 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 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. The Parent may sell in the Proposed
Sale additional shares of Common Stock owned by it equal to any remaining
Eligible Shares which will not be included in the Proposed Sale pursuant to the
foregoing.
3. If Parent receives an offer from a person to purchase in a Proposed
Sale (a) at least a majority of the shares of Common Stock then outstanding or
(b) all or substantially all of the shares of Common Stock owned by Parent, and
such offer is accepted by Parent, then each of you, your Purchaser's Estate and
your Purchaser's Trust hereby agrees that, if requested by Parent ("PARENT
REQUEST"), you, your Purchaser's Estate and your Purchaser's Trust will sell in
such Proposed Sale on the same terms and conditions (including, without
limitation, time of payment and form of consideration) as to be paid and given
to Parent, the number of shares of Common Stock equal to the number of shares of
Common Stock owned by you, your Purchaser's Estate and your Purchaser's Trust
(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) multiplied by (x) in the case of a Proposed Sale described in
clause (a) above, the percentage of the then outstanding shares of Common Stock
to which the Proposed Sale is applicable or (y) in the case of a Proposed Sale
described in clause (b) above, the percentage of the shares of Common Stock
owned by Parent to which the Proposed Sale is applicable.
4. (a) Except as may otherwise be provided herein, shares of Common
Stock subject to a Purchaser Request or a Parent 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 Parent proposes to sell in the Proposed Sale.
Such terms and conditions shall include, without limitation: the sales price;
the payment of fees, commissions, adjustments to purchase price and expenses;
the provision of, and representation and warranty as to,
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information requested by the Parent; and the provision of requisite
indemnifications; PROVIDED that any fees, commissions, adjustments to purchase
price, expenses or indemnification provided by you, your Purchaser's Estate or
your Purchaser's Trust shall be on a pro rata basis.
(b) In the event of a transaction (such as a merger or consolidation)
involving the Company which results in a Change of Control (as defined in
Section 15 of the Stockholder's Agreement) but is not a Proposed Sale (a
"PROPOSED TRANSACTION"), you agree on behalf of yourself, your Purchaser's
Estate and your Purchaser's Trust to bear your pro rata share of any fees,
commissions, adjustments to purchase price, expenses or indemnities borne by the
Parent.
(c) Your pro rata share of any amount pursuant to Paragraphs 4(a) or
(b) shall be based upon the number of shares of Common Stock owned by you, your
Purchaser's Estate and your Purchaser's Trust plus the number of shares of
Common Stock you would have the right to acquire under unexercised options which
are then vested or would become vested as a result of the Proposed Sale or
Proposed Transaction.
(d) Parent shall be entitled to estimate the amount of fees,
commissions, adjustments to purchase price, expenses or indemnities in
connection with any Proposed Sale or Proposed Transaction and to withhold such
amounts from payments to be made to you, your Purchaser's Estate and your
Purchaser's Trust at the time of closing of such Proposed Sale or Proposed
Transaction; PROVIDED that, (i) such estimate shall not preclude the Parent from
recovering additional amounts from you, your Purchaser's Estate and your
Purchaser's Trust in respect of such fees, commissions, adjustments to purchase
price, expenses or indemnities and (ii) the Parent shall reimburse you, your
Purchaser's Estate and your Purchaser's Trust to the extent actual amounts are
ultimately less than the estimated amounts.
5. Upon delivering a Purchaser Request or receiving a Parent Request,
you or your Purchaser's Estate or Purchaser's Trust, as the case may be, will,
if requested by the Parent, execute and deliver a custody agreement and power of
attorney in form and substance satisfactory to the Parent 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.
6. 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
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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, as the case may be, willingness to execute such
documents in connection therewith as may be reasonably requested by the Parent.
7. The obligations of the Parent 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 the Parent, to it at the following address:
c/x Xxxxxx Capital Management Partners
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Chief Executive Officer
with copies to:
Kohlberg Kravis Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx and Xxxxx Xxxxxx
-and-
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 the Parent 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.
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10. THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE INTERPRETATION,
VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT, REGARDLESS OF THE LAW
THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF LAW. ANY SUIT, ACTION OR
PROCEEDING AGAINST YOU WITH RESPECT TO THIS AGREEMENT, OR ANY JUDGMENT ENTERED
BY ANY COURT IN RESPECT OF ANY THEREOF, MAY BE BROUGHT IN ANY COURT OF COMPETENT
JURISDICTION IN THE STATE OF DELAWARE OR NEW YORK, AS THE PARENT MAY ELECT IN
ITS SOLE DISCRETION, AND YOU HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF
SUCH COURTS FOR THE PURPOSE OF ANY SUCH SUIT, ACTION, PROCEEDING OR JUDGMENT.
YOU HEREBY IRREVOCABLY WAIVE ANY OBJECTIONS WHICH YOU MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF THE VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE
STATE OF DELAWARE OR NEW YORK, AND HEREBY FURTHER IRREVOCABLY WAIVE ANY CLAIM
THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN ANY INCONVENIENT FORUM. NO SUIT, ACTION OR PROCEEDING AGAINST THE
PARENT WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY COURT, DOMESTIC OR
FOREIGN, OR BEFORE ANY SIMILAR DOMESTIC OR FOREIGN AUTHORITY OTHER THAN IN A
COURT OF COMPETENT JURISDICTION IN THE STATE OF DELAWARE OR NEW YORK, AND YOU
HEREBY IRREVOCABLY WAIVE ANY RIGHT WHICH YOU MAY OTHERWISE HAVE HAD TO BRING
SUCH AN ACTION IN ANY OTHER COURT, DOMESTIC OR FOREIGN, OR BEFORE ANY SIMILAR
DOMESTIC OR FOREIGN AUTHORITY. THE PARENT HEREBY SUBMITS TO THE JURISDICTION OF
SUCH COURTS FOR THE PURPOSE OF ANY SUCH SUIT, ACTION OR PROCEEDING.
11. If the Parent transfers its interest in the Company to an
affiliate of the Parent, such affiliate shall succeed to all of Parent's rights
and obligations hereunder. Upon any merger or consolidation of the Parent with
the Company or any liquidation of the Parent, the stockholder or stockholders of
the Parent shall succeed to all of Parent's rights and obligations hereunder.
It is the understanding of the undersigned that you are aware that no
Proposed Sale or Proposed Transaction presently is contemplated and that such a
transaction may never occur.
[Continued on next page.]
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If the foregoing accurately sets forth our agreement, please
acknowledge your acceptance thereof in the space provided below for that
purpose.
Very truly yours,
CCPC ACQUISITION CORP.
By
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Name:
Title:
Accepted and agreed to:
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(Print Your Name)
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(Signature)
Address:
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