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EXHIBIT 4.7
TAG-ALONG SALES AGREEMENT
Dated as of June 16, 2000
among
DAYTON SUPERIOR CORPORATION,
ODYSSEY INVESTMENT PARTNERS FUND, LP
and
DEUTSCHE BANK SECURITIES INC.
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Initial Purchasers
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TABLE OF CONTENTS
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Page
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1.
Definitions ...................................................
1
2.
Transfers......................................................
4
2.1.
Generally............................................
4
2.2.
Tag-Along Rights.....................................
4
2.3.
Drag-Along Rights ....................................
6
3.
Representations, Warranties and Agreements of Odyssey..........
7
4.
Miscellaneous..................................................
7
4.1.
Remedies .............................................
7
4.2.
Amendments and Waivers................................
8
4.3.
Notices...............................................
8
4.4.
Successors and Assigns ...............................
8
4.5.
Counterparts .........................................
9
4.6.
Governing Law; Submission to Jurisdiction ............
9
4.7.
Severability..........................................
9
4.8.
Headings..............................................
9
4.9.
Attorneys' Fees ......................................
9
4.10. Entire
Agreement ..................................... 9
4.11.
Termination ..........................................
9
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i
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This TAG-ALONG SALES AGREEMENT (this "Agreement") is dated as
of June 16, 2000, by and among DAYTON
SUPERIOR CORPORATION, an Ohio corporation
(the "Company"), ODYSSEY INVESTMENT
PARTNERS FUND, LP ("Odyssey"), DEUTSCHE BANK
SECURITIES INC. ("Deutsche Bank") and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED ("Merrill Lynch" and, together
with Deutsche Bank, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 9, 2000, by and
among the Company, the guarantors
named therein and the Initial Purchasers
(the "Purchase Agreement"), relating to
the sale by the Company to the Initial
Purchasers of an aggregate of 170,000
Units, each Unit consisting of $1,000
principal amount of 13% Senior
Subordinated Notes due 2009 (the "Notes")
and one Warrant (collectively, the
"Warrants") to purchase 0.68986 of a common
share, no par value, of the Company.
The Warrants are being issued pursuant to a
warrant agreement (the "Warrant
Agreement"), to be dated as of June 16,
2000, between the Company and United
States Trust Company of New York, as
warrant agent. In addition, the holders of
Warrants and Warrant Shares will be
entitled to the benefits of the registration
rights agreement (the "Warrant Shares
Registration Rights Agreement") between
the Company and the Initial Purchasers.
In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company and Odyssey
have agreed to provide to the
Holders (as defined herein) certain rights
set forth in this Agreement with
respect to sales by the Principals (as
defined herein) of common shares of the
Company prior to the date of an Initial
Public Offering (as defined herein). The
execution of this Agreement is a condition
to the obligations of the Initial
Purchasers to purchase the Units under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1.
Definitions.
As used in this Agreement, the following terms shall have the
following meanings: "Advice" shall have the
meaning ascribed to that term in the
last paragraph of Section 4.
"Affiliate" of any Person shall mean any Person (i) which
directly or indirectly controls or is
controlled by, or is under direct or
indirect common control with, the referent
Person, (ii) which beneficially owns
or holds 10% or more of the voting stock of
the referent Person or (iii) of
which 10% or more of the voting stock (or,
in the case of a Person which is not
a corporation, 10% or more of the equity
interest) is beneficially owned or held
by the referent Person. For purposes of
this definition, control of a Person
shall mean the power to direct the
management and policies of such Person,
directly or indirectly, whether through the
ownership of voting securities, by
contract or otherwise.
"Agreement" shall have the meaning ascribed to that term in
the preamble hereto.
"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" shall mean, with respect to any Person, any
and all shares, interests, participations,
rights in or other equivalents
(however designated and whether voting
and/or non-voting) of capital stock,
partnership interests or any other
participation, right or other interest in the
nature of an equity interest in such Person
or any option, warrant or other
security convertible into or exercisable or
exchangeable for any of the
foregoing.
"Common Shares" shall mean the common shares, no par value, of
the Company.
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"Company" shall have the meaning ascribed to that term in the
preamble hereto and shall also include the
Company's successors.
"Covered Equity" shall have the meaning ascribed to that term
in Section 2.1
"Custody
Agreement" shall have the meaning ascribed to that
term in Section 2.2(e).
"Drag-Along Holder" shall have the meaning ascribed to that
term in Section 2.3(a).
"Drag-Along Notice" shall have the meaning ascribed to that
term in Section 2.3(b).
"Drag-Along Purchaser" shall have the meaning ascribed to that
term in Section 2.3(b).
"Drag-Along Right" shall have the meaning ascribed to that
term in Section 2.3(a).
"Drag-Along Sale" shall have the meaning ascribed to that term
in Section 2.3(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Excluded Transfer" shall mean (1) a Transfer by any Principal
to another Principal (a "transferee") so
long as such transferee agrees to be
bound by the transferor's obligations under
this Tag-Along Sales Agreement, (2)
a Transfer pursuant to a Public Offering or
pursuant to Rule 144, (3) a
Piggy-Back Registration (as defined in the
Warrant Shares Registration Rights
Agreement) and (4) any Transfer in a single
transaction or series of related
transactions of Common Shares which do not
exceed 5% (calculated on a fully
diluted basis) of the Common Shares then
outstanding.
"Holder" shall mean the Initial Purchasers, for so long as
each Initial Purchaser owns any Warrants or
Warrant Shares, and each of their
successors, assigns and direct and indirect
transferees who become registered
owners of Warrants or Warrant Shares.
"Initial Public Offering" shall mean the first time a
registration statement filed under the
Securities Act respecting an offering,
whether primary or secondary, of capital
shares of the Company (or securities
convertible into, or exchangeable or
exercisable for, capital shares of the
Company or rights to acquire such capital
shares or securities, other than the
Warrants) which is underwritten on a firmly
committed or best efforts basis is
declared effective and the securities so
registered are issued and sold.
"Initial Purchasers" shall have the meaning ascribed to that
term in the preamble hereto. "IPO Date"
shall have the meaning ascribed to that
term in Section 2.2(a).
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New
York are required by law, regulation
or executive order to remain closed.
"Notes" shall have the meaning ascribed to that term in the
preamble hereto.
"Odyssey" shall have the meaning ascribed to that term in the
preamble hereto.
"Participating Holder" shall have the meaning ascribed to that
term in Section 2.2(b).
"Person"
shall mean any individual, corporation, partnership,
joint venture, incorporated or
unincorporated association, joint-stock company,
trust, unincorporated organization,
government or any agency or political
subdivision thereof or other entity of any
kind.
2
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"Principal" shall mean (a) any of Odyssey, its Affiliates and
any general or limited partner of Odyssey
or (b) an Affiliate of any of the
entities described in clause (a).
"Proposed Purchaser" shall have the meaning ascribed to that
term in Section 2.2(a).
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without
limitation, a prospectus that
discloses information previously omitted
from a prospectus filed as part of an
effective registration statement in
reliance upon Rule 430A promulgated pursuant
to the Securities Act), as amended or
supplemented by any prospectus supplement;
with respect to the terms of the offering
of any portion of the securities
covered by such Registration Statement, and
all other amendments and supplements
to any such prospectus, including
post-effective amendments, and all material
incorporated by reference or deemed to be
incorporated by reference, if any, in
such prospectus.
"Public Offering" shall mean an underwritten primary public
offering of capital shares of the Company
pursuant, to an effective registration
statement under the Securities Act.
"Purchase Agreement" shall have the meaning ascribed to that
term in the preamble hereto.
"Registration Statement" shall mean any registration statement
of the Company which covers any of the
Covered Equity pursuant to the provisions
of this Agreement and all amendments and
supplements to any such Registration
Statement, including post-effective
amendments, in each case including the
Prospectus contained therein, all exhibits
thereto and all material incorporated
by reference therein.
"Requisite Shares" shall mean a number of Warrants and Warrant
Shares equivalent to a majority of the
Warrant Shares held in the aggregate by
all Holders at the time of any
determination (with any Warrant being deemed to
be equal to the number of Warrant Shares
for which such Warrant is then
exercisable (without giving effect to any
cashless exercise)).
"Rule 144" shall mean Rule 144 under the Securities Act, as
such Rule may be amended from time
to time, or any similar rule (other than
Rule 144A) or regulation hereafter
adopted by the SEC providing for offers and
sales of securities made in
compliance therewith resulting in offers and sales
by subsequent holders that are not
affiliates of an issuer of such securities
being free of the registration and
prospectus delivery requirements of the
Securities Act.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shareholder" shall mean, collectively, each Holder and each
Principal owning Common Shares or other
securities convertible or exercisable or
exchangeable into Common Shares.
"Tag-Along Notice" shall have the meaning ascribed to that
term in Section 2.2(b).
"Tag-Along Right" shall have the meaning ascribed to that term
in Section 2.2(a).
"Transfer" shall have the meaning ascribed to that term in
Section 2.2(a).
"Transfer Notice" shall have the meaning ascribed to that term
in Section 2.2(b).
"Warrant Agreement" shall have the meaning ascribed to that
term in the preamble hereto.
"Warrant Shares" shall mean the Common Shares issued and
issuable upon exercise of the Warrants and
any other securities issued or
issuable with respect to the Warrants by
way of stock dividends, stock splits or
in connection with a combination of shares,
recapitalization, merger,
consolidation or other reorganization or
otherwise.
3
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"Warrant Shares Registration Rights Agreement" shall have the
meaning ascribed to that term in the
preamble hereto.
"Warrants" shall have the meaning ascribed to that term in the
preamble hereto.
2.
Transfers.
2.1. Generally. All Warrants and Warrant Shares (the "Covered
Equity") at any time and from time to time
outstanding shall be held subject to
the conditions and restrictions set forth
in this Section 2. All Common Shares
now or hereafter held by the Principals
shall be held subject to the conditions
and restrictions set forth in this Section
2. Each Holder of Covered Equity and
the Principals by executing this Agreement
or by accepting a certificate
representing Common Shares or other indicia
of ownership therefor from the
Company agree with the Company and with
each other Shareholder to such
conditions and restrictions.
2.2. Tag-Along Rights. (a) In the event of any proposed direct
or indirect sale or other disposition for
cash or other consideration
(collectively, a "Transfer") of Common
Shares (whether now or hereafter issued)
to any Person or Persons (such other Person
or Persons being hereinafter
referred to as the "Proposed Purchaser") by
any Principal or Principals in any
transaction or a series of related
transactions (other than an Excluded
Transfer) at any time prior to the date
of
