Exhibit
4.8
FORM OF
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated
as of April__, 2004, among Sealy Corporation, a Delaware
corporation (the “ Company ”) and Sealy Holding
LLC, a Delaware limited liability company (the “
Investor ”).
RECITALS
As of the date hereof, the Investor
is the holder of _________ shares of Class A Common Stock of the
Company. The Company desires to provide to the Investor and
to each other Holder (as defined below) rights to registration
under the Securities Act (as defined below) of Registrable
Securities (as defined below), on the terms and subject to the
conditions set forth herein.
AGREEMENT
1.
Definitions . As used in this Agreement, the following
capitalized terms shall have the following respective
meanings:
“ Common Stock
”: The shares of Class A Common Stock, par value $.01
per share, of the Company and any stock into which such Common
Stock may thereafter be converted or exchanged.
“ Demand Party
”: (a) The Investor or (b) any other Holder or Holders,
including, without limitation, any Person that may become an
assignee of the Investor’s rights hereunder; provided
that to be a Demand Party under this clause (b), a Holder or
Holders must either individually or in aggregate with all other
Holders with whom it is acting together to demand registration own
at least 1% of the total number of Registrable
Securities.
“ Exchange Act
”: The Securities Exchange Act of 1934, as amended, or
any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference
to the comparable section, if any, of any such similar federal
statute.
“ Holder ”:
The Investor and any other holder of Registrable Securities
(including any direct or indirect transferee of the Investor who
agrees in writing to be bound by the provisions of this
Agreement).
“ Person ”:
Any individual, partnership, joint venture, corporation, limited
liability company, trust, unincorporated organization, government
or any department or agency thereof or any other entity.
“ Registrable
Securities ”: Any Common Stock held by the
Investor, and any Common Stock which may be issued or distributed
in respect thereof by way of stock dividend or stock split or other
distribution, recapitalization or reclassification. Any
particular Registrable Securities that are issued shall cease to be
Registrable Securities
when (i) a registration statement
with respect to the sale by the Holder of such securities shall
have become effective under the Securities Act and such securities
shall have been disposed of in accordance with such registration
statement, (ii) such securities shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the
Securities Act, (iii) such securities shall have been otherwise
transferred, new certificates for such securities not bearing a
legend restricting further transfer shall have been delivered by
the Company and subsequent disposition of such securities shall not
require registration or qualification of such securities under the
Securities Act or any state securities or blue sky law then in
force, or (iv) such securities shall have ceased to be
outstanding.
“ Registration Expenses
”: Any and all expenses incident to performance of or
compliance with this Agreement, including, without limitation, (i)
all SEC and stock exchange or National Association of Securities
Dealers, Inc. (the “ NASD ”) registration and
filing fees (including, if applicable, the fees and expenses of any
“qualified independent underwriter,” as such term is
defined in Schedule E to the By-laws of the NASD, and of its
counsel), (ii) all fees and expenses of complying with securities
or blue sky laws (including fees and disbursements of counsel for
the underwriters in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery
expenses, (iv) all fees and expenses incurred in connection with
the listing of the Registrable Securities on any securities
exchange pursuant to clause (viii) of Section 4 and all rating
agency fees, (v) the fees and disbursements of counsel for the
Company and of its independent public accountants, including the
expenses of any special audits and/or “cold comfort”
letters required by or incident to such performance and compliance,
(vi) the reasonable fees and disbursements of counsel selected
pursuant to Section 7 hereof by the Holders of the Registrable
Securities being registered to represent such Holders in connection
with each such registration, (vii) any fees and disbursements of
underwriters customarily paid by the issuers or sellers of
securities, including liability insurance if the Company so desires
or if the underwriters so require, and the reasonable fees and
expenses of any special experts retained in connection with the
requested registration, but excluding underwriting discounts and
commissions and transfer taxes, if any, and (viii) other reasonable
out-of-pocket expenses of Holders ( provided that such
expenses shall not include expenses of counsel other than those
provided for in clause (vi) above).
“ Securities Act
”: The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference
to the comparable section, if any, of any such similar federal
statute.
“ SEC ”:
The Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act or the Exchange
Act.
2.
Incidental Registrations . (a) Right to
Include Registrable Securities . If the Company at any
time after the date hereof proposes to register its Common Stock
under the Securities Act (other than a registration on Form S-4 or
S-8, or any successor or other forms promulgated for similar
purposes), whether or not for sale for its own account (but
excluding in a registration under Section 3 hereof), in a manner
which would permit registration of Registrable
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Securities for
sale to the public under the Securities Act, it will, at each such
time, give prompt written notice to all Holders of Registrable
Securities of its intention to do so and of such Holders’
rights under this Section 2. Upon the written request of any
such Holder made within 15 days after the receipt of any such
notice (which request shall specify the Registrable Securities
intended to be disposed of by such Holder), the Company will use
its best efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so
requested to register by the Holders thereof, to the extent
requisite to permit the disposition of the Registrable Securities
so to be registered; provided that (i) if, at any time after
giving written notice of its intention to register any securities
and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine
for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company may, at its election, give
written notice of such determination to each Holder of Registrable
Securities and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration
Expenses in connection therewith), and (ii) if such registration
involves an underwritten offering, all Holders of Registrable
Securities requesting to be included in the Company’s
registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and
conditions as apply to the Company, with such differences,
including any with respect to indemnification and liability
insurance, as may be customary or appropriate in combined primary
and secondary offerings. If a registration requested pursuant
to this Section 2(a) involves an underwritten public offering, any
Holder of Registrable Securities requesting to be included in such
registration may elect, in writing prior to the effective date of
the registration statement filed in connection with such
registration, not to register such securities in connection with
such registration.
(b)
Expenses . The Company will pay all Registration
Expenses in connection with each registration of Registrable
Securities.
(c)
Priority in Incidental Registrations . If a
registration pursuant to this Section 2 involves an underwritten
offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities requested to
be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse effect
on the price, timing or distribution of the securities offered in
such offering as contemplated by the Company (other than the
Registrable Securities), then the Company will include in such
registration (i) first, 100% of the securities the Company proposes
to sell and (ii) second, to the extent of the number of Registrable
Securities requested to be included in such registration pursuant
to this Section 2 which, in the opinion of such managing
underwriter, can be sold without having the adverse effect referred
to above, the number of Registrable Securities which the Holders
have requested to be included in such registration, such amount to
be allocated pro rata among all requesting Holders on the basis of
the relative number of shares of Registrable Securities then held
by each such Holder (provided that any shares thereby allocated to
any such Holder that exceed such Holder’s request will be
reallocated among the remaining requesting Holders in like
manner).
3.
Registration on Request . (a) Request by the
Demand Party . At any time, upon the written request of
the Demand Party requesting that the Company effect the
registration under the Securities Act of all or part of such Demand
Party’s Registrable Securities and
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specifying the
amount and intended method of disposition thereof, the Company will
promptly give written notice of such requested registration to all
other Holders of such Registrable Securities, and thereupon will,
as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of:
(i)
such Registrable Securities which the Company has been so requested
to register by the Demand Party; and
(ii)
all other Registrable Securities of the same class or series as are
to be registered at the request of a Demand Party and which the
Company has been requested to register by any other Holder thereof
by written request given to the Company within 15 days after the
giving of such written notice by the Company (which request shall
specify the amount and intended method of disposition of such
Registrable Securities),
all to the extent necessary to
permit the disposition (in accordance with the intended method
thereof as aforesaid) of the Registrable Securities so to be
registered; provided that, unless Holders of a majority of
the shares of Registrable Securities held by Holders consent
thereto in writing, the Company shall not be obligated to file a
registration statement relating to any registration request under
this Section 3(a) (x) within a period of nine months after the
effective date of any other registration statement relating to any
registration request under this Section 3(a) which was not effected
on Form S-3 (or any successor or similar short-form registration
statement) or relating to any registration effected under Section
2, or (y) if, with respect thereto, the managing underwriter, the
SEC, the Securities Act or the rules and regulations thereunder, or
the form on which the registration statement is to be filed, would
require the conduct of an audit other than the regular audit
conducted by the Company at the end of its fiscal year, in which
case the filing may be delayed until the completion of such regular
audit (unless the Holders of the Registrable Securities to be
registered agree to pay the expenses of the Company in connection
with such an audit other than the regular audit).
(b)
Registration Statement Form . If any registration
requested pursuant to this Section 3 which is proposed by the
Company to be effected by the filing of a registration statement on
Form S-3 (or any successor or similar short-form registration
statement) shall be in connection with an underwritten public
offering, and if the managing underwriter shall advise the Company
in writing that, in its opinion, the use of another form of
registration statement is of material importance to the success of
such proposed offering, then such registration shall be effected on
such other form.
(c)
Expenses . The Company will pay all Registration
Expenses in connection with the first six (6) registrations of each
class or series of Registrable Securities pursuant to this Section
3 upon the written request of any of the Holders. All
Registration Expenses for any subsequent registrations of
Registrable Securities pursuant to this Section 3 shall be paid pro
rata by the Company and all other Persons (including the Holders)
participating in such registration on the basis of the relative
number of shares of Common Stock of each such person whose
Registrable Securities are included in such
registration.
(d)
Effective Registration Statement . A registration
requested pursuant to this Section 3 will not be deemed to have
been effected unless it has become effective; provided
that
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if, within 180
days after it has become effective, the offering of Registrable
Securities pursuant to such registration is interfered with by any
stop order, injunction or other order or requirement of the SEC or
other governmental agency or court, such registration will be
deemed not to have been effected.
(e)
Selection of Underwriters . If a requested
registration pursuant to this Section 3 involves an underwritten
offering, the Holders of a majority of the shares of Registrable
Securities which are held by Holders and which the Company has been
requested to register shall have the right to select the investment
banker or bankers and managers to administer the offering;
provided , however , that such investment banker or
bankers and managers shall be reasonably satisfactory to the
Company.
(f)
Priority in Requested Registrations . If a requested
registration pursuant to this Section 3 involves an underwritten
offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities requested to
be included in such registration (including securities of the
Company which are not Registrable Securities) exceeds the number
which can be sold in such offering, the Company will include in
such registration only the Registrable Securities of the Holders
requested to be included in such registration. In the event
that the number of Registrable Securities of the Holders requested
to be included in such registration exceeds the number which, in
the opinion of such managing underwriter, can be sold, the number
of such Registrable Securities to be included in such registration
shall be allocated pro rata among all such requesting Holders on
the basis of the relative number of shares of Registrable
Securities then held by each such Holder ( provided that any
shares thereby allocated to any such Holder that exceed such
Holder’s request shall be reallocated among the remaining
requesting Holders in like manner). In the event that the
number of Registrable Securities requested to be included in such
registration is less than the number which, in the opinion of the
managing underwriter, can be sold, the Company may include in such
registration the securities the Company proposes to sell up to the
number of securities that, in the opinion of the underwriter, can
be sold.
(g)
Additional Rights . If the Company at any time grants
to any other holders of Common Stock any rights to request the
Company to effect the registration under the Securities Act of any
such shares of Common Stock on terms more favorable to such holders
than the terms set forth in this Section 3, the terms of this
Section 3 shall be deemed amended or supplemented to the extent
necessary to provide the Holders such more favorable rights and
benefits.
4.
Registration Procedures . If and whenever the Company
is required to use its best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act
as provided in this Agreement, the Company will, as expeditiously
as possible:
(i)
prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the
Company pursuant to Section 2 or 3, 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 , however , that the
Company may discontinue any registration of its
securities
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which is being
effected pursuant to Section 2 at any time prior to the effective
date of the registration statement relating thereto;
(ii)
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 not in excess of 270 days and to comply with
the provisions of the Securities Act, the Exchange Act and the
rules and regulations of the SEC thereunder 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 seller or sellers thereof set forth
in such registration statement; provided that before filing
a registration statement or prospectus, or any amendments or
supplements thereto, the Company will furnish to counsel selected
pursuant to Section 7 hereof by the Holders of the Registrable
Securities covered by such registration statement to represent such
Holders, copies of all documents proposed to be filed, which
documents will be subject to the review of such
counsel;
(iii)
furnish to each seller of such Registrable Securities such number
of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed
therewith, including any documents incorporated by reference), such
number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the Securities
Act, and such other documents as such seller may reasonably request
in order to facilitate the disposition of the Registrable
Securities by such seller;
(iv)
use its best efforts to register or qualify such Registrable
Securities covered by such registration in such jurisdictions as
each seller shall reasonably request, 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, except that the
Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporati
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