Exhibit 4.6
FORM OF
SALE PARTICIPATION
AGREEMENT
_______, 200_
To: The Person whose name
is
set forth on
the signature page hereof
Dear Sir or Madam:
You have entered into a Management
Stockholder’s Agreement, dated as of the date hereof between
Sealy Corporation, a Delaware corporation (the “
Company ”), and you (the “
Stockholder’s Agreement ”) relating to the
granting to you by the Company of an Option (as defined in the
Stockholder’s Agreement) to purchase shares of Class A common
stock, par value $0.01 per share, of the Company (the “
Common Stock ”). The undersigned, Sealy Holding
LLC, a Delaware limited liability company (the “
Investor ”) hereby agrees with you as follows,
effective upon such grant of Option:
1. In the
event that at any time the Investor (together with any of its
respective affiliates, to the extent provided for in Paragraph 8
hereof, the “ Selling Investors ”) proposes to
sell for cash or any other consideration any shares of Common Stock
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 the Selling Investors, the Selling Investor(s) will
notify you or your Management Stockholder’s Estate or
Management Stockholder’s Trust (as such terms are defined in
Section 2 of the Stockholder’s Agreement, and collectively
with you, the “ Management Stockholder Entities
”), 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
after the Management Stockholder Entities’ receipt of such
Notice, the Selling Investor receives from the Management
Stockholder Entities a written request (a “ Request
”) to include Common Stock held by the Management Stockholder
Entities in the Proposed Sale (which Request shall be irrevocable
unless (a) there shall be a material adverse change in the Material
Terms or (b) if otherwise mutually agreed to in writing by the
Management Stockholder Entities, and the Selling Investor), the
Common Stock held by you will be so included as provided herein;
provided that only one Request, which shall be executed by the
Management Stockholder Entities, may be delivered with respect to
any Proposed Sale for Common Stock held by the Management
Stockholder Entities. Promptly after the execution of the
Sale Agreement, the Selling Investors will furnish the Management
Stockholder Entities with a copy of the Sale Agreement, if
any.
2. (a) The
number of shares of Common Stock which the Management Stockholder
Entities will be permitted to include in a Proposed Sale pursuant
to a Management Stockholder Request will be the lesser of (i) the
sum of the number of shares of Common Stock then actually owned (or
deemed owned) by the Management Stockholder Entities plus
all shares
of Common Stock which you are then
entitled to acquire under any unexercised portion of the Option, to
the extent such Option is then exercisable or would become
exercisable as a result of the consummation of the Proposed Sale
and (ii) the sum of the shares of Common Stock then actually owned
(or deemed owned) by the Management Stockholder Entities
plus all shares of Common Stock which you are entitled to
acquire under any unexercised portion of the Option, whether or not
fully exercisable, multiplied by a fraction (x) the numerator of
which shall be the aggregate number of shares of Common Stock which
a Selling Investor or the Selling Investors propose to sell in the
Proposed Sale (after giving effect to the applicable provisions of
the Management Stockholders’ Agreement and any other written
agreement between the Selling Investors and any holder of shares of
Common Stock that gives the right to such holder to participate in
the Proposed Sale (an “ Eligible Holder ”) and
(y) the denominator of which shall be the total number of shares of
Common Stock owned by such Selling Investor or the Selling
Investors, as the case may be.
(b) If one or more Eligible Holders
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 pursuant to Paragraph 2(a) (such non-included shares,
the “ Eligible Shares ”), then each of the
Selling Investors, or the remaining Eligible Holders, or any of
them, will have the right to sell in the Proposed Sale a number of
additional shares of their Common Stock equal to their pro rata
portion of the number of Eligible Shares, based on the relative
number of shares of Common Stock then actually held (or deemed
held) by each such holder, and such additional shares of Common
Stock which any such holder or holders propose to sell shall be
included in any calculation made pursuant to this Paragraph 2 for
the purpose of determining the number of shares of Common Stock
which the Management Stockholder Entities will be permitted to
include in a Proposed Sale. The Selling Investors, or any of
them, will have the right to sel
