Exhibit 4.4


 


SALE PARTICIPATION AGREEMENT


 


 


Dated as of July 9, 1998


 


 


Fisher Capital
Corp. LLC, a Delaware limited liability company (the “Purchaser”), has
entered into a Stockholders’ Agreement, dated as of July 9, 1998 (the “Subscription
Agreement”) with BRW Acquisition, Inc., a Delaware corporation (“the
Company”)  relating to the Purchaser’s
ownership and/or purchase of shares of the common stock, par value $.01 per
share (the “Common Stock”) of the Company. 
The undersigned, Bristol West Associates LLC, a Delaware limited
liability corporation (“Associates”), an affiliate of KKR Partners II, L.P., a
Delaware limited partnership (“KKR Partners”) and KKR 1996 Fund L.P., a
Delaware limited partnership (“KKR 1996”) (collectively, the “KKR
Partnership”), also has acquired shares of Common Stock of the Company and
hereby agrees with the Purchaser as follows, effective upon the Closing (as
defined in the Stockholder’s Agreement):


 


In the event
that at any time the Associates, any member thereof or any investment
partnerships affiliated with the KKR Partnership (each, a “Selling Party”
and, collectively, the “Selling Parties”) 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 Qualified Public Offering (as defined in the
Subscription Agreement) or a sale to an affiliate of the KKR Partnership, the
Selling Party will notify the Purchaser in writing (a “Notice”) of such
proposed sale (a “Proposed Sale”) and the material terms of the Proposed
Sale, including the number of shares proposed to be sold by the Selling Party
and the consideration to be received therefor 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 the Purchaser’s receipt of such Notice the Selling Party
receives from the Purchaser a written request (a “Request”) to include
Common Stock held pursuant to the Subscription Agreement by the Purchaser 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 Purchaser and the Selling Party), the Common Stock
so held by the Purchaser will be so included as provided herein; provided
that only one Request, which shall be executed by the Purchaser, may be
delivered with respect to any Proposed Sale for any or all shares of Common
Stock held by the Purchaser.  Any shares
of Common Stock held by the Purchaser which are not subject to the terms and
conditions of the Subscription Agreement shall not be included in any Proposed
Sale, and references to Common Stock herein shall be construed
accordingly.   Promptly upon receipt of
a Request the Selling Party will furnish the Purchaser with a copy of the Sale
Agreement, if any.


 


The number of
shares of Common Stock which the Purchaser will be permitted to include in a
Proposed Sale pursuant to a Request, subject to terms of this Section 2,
will be the


 

















 


lesser of (i) the number of shares of Common Stock then owned by the
Purchaser which the Purchaser has indicated that it wishes to include in such
Proposed Sale (and which shares of Common Stock are held pursuant to the
Subscription Agreement), plus all shares of Common Stock that the
Purchaser is then entitled to acquire under an unexercised option and (ii) (A)
the sum of all shares of Common Stock then owned by the Purchaser plus all
shares of Common Stock that the Purchaser is entitled to acquire pursuant to an
unexercised option, multiplied by (B) a percentage calculated by
dividing the aggregate number of shares of Common Stock proposed to be sold in
the Proposed Sale by the Selling Parties by the total number of shares of
Common Stock owned by the Selling Parties, the Purchaser, and other holders of
shares of Common Stock who have been granted the same rights to participate in
the Proposed Sale granted to the Purchaser (collectively the “Additional
Purchaser Entities”).  If one or more
Additional Purchaser Entities elect not to include the maximum number of shares
of Common Stock which such Additional Purchaser Entities would have been
permitted to include in a Proposed Sale (the “Eligible Shares”), then
any Selling Party, the Purchaser or the remaining Additional Purchaser Entities
shall be permitted to sell in the Proposed Sale a number of additional shares
of Common Stock up to their respective requested amounts owned by 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 Section 2 for the purpose of
determining the number of shares of Common Stock which the Purchaser will be
permitted to include in a Proposed Sale. 
The Selling Parties and the Purchaser, or any of them, may sell in the
Proposed Sale, pro rata, 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.


 


Except as may
otherwise be provided herein, 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 Common Stock which the Selling Party proposes to
sell in the Proposed Sale.  Such terms
and conditions shall include, without limitation:  the sales price; the payment of fees, commissions and expenses;
the provision of, and representation and warranty as to, information requested
by the Selling Party; and the provision of requisite indemnifications; provided
that any indemnification provided by the Purchaser shall be several (not joint
with the other sellers) and pro rata in proportion with the number of shares of
Common Stock to be sold.


 


Upon
delivering a Request, the Purchaser will, if requested by the Selling Party,
execute and deliver a custody agreement and power of attorney in form and
substance reasonably satisfactory to the Selling Party with respect to the
shares of Common Stock which are to be sold by the Purchaser pursuant hereto (a
“Custody Agreement and Power of Attorney”).  The Custody Agreement and Power of Attorney will provide, among
other things, that the Purchaser 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 the Purchaser’s agent and attorney-in-fact with full power
and authority to act under the Custody Agreement and Power of Attorney on the
Purchaser’s behalf with respect to the matters


 


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specified therein, but only to the extent such actions are consistent
with the Material Terms as specified in the Notice.


 


The
Purchaser’s right pursuant hereto to participate in a Proposed Sale shall be
contingent on the Purchaser’s compliance with each of the provisions hereof and
the Purchaser’s willingness to execute such documents that are consistent
therewith and as may be reasonably requested by the Selling Party.


 


In the event
of a Proposed Sale pursuant to Section 1 hereof, the Selling Party may
elect, by so specifying in the Notice, to require the Purchaser to, and the
Purchaser will, participate in such Proposed Sale in accordance with the terms
and provisions of Sections 2, 3 and 4 hereof.


 


The
obligations of the Selling Parties hereunder shall extend only to the Purchaser
and its members holding an indirect interest in the Common Stock, and no other
of the Purchaser’s successors or assigns shall have any rights pursuant hereto.


 


The agreement
entered hereby (the “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 Subscription Agreement).


 


If the
Purchaser shall acquire any additional shares of Common Stock of the Company,
including without limitation upon the exercise of stock options or otherwise,
then the provisions of this Agreement shall also be applicable to such shares
of Common Stock.


 


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:


 


If to the Selling Parties, to them at the following address:


 


c/o Kohlberg Kravis Roberts & Co.


9 West 57th Street


New York, New York  10019


Attn:  Perry Golkin


Fax:  (212) 750-0003


 


with a copy to:


 


Simpson Thacher & Bartlett


425 Lexington Avenue


New York, New York  10017


Attn:  Gary Horowitz, Esq.


Fax:  (212) 455-2502


 


If to the Purchaser, to it at the following address:


 


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Fisher Capital Corp. LLC


8 Clarke Drive


Cranbury, New Jersey 08512


Attention: 
Kevin Byrne


Fax:  (609) 409-1235


 


with a copy to:


 


Latham & Watkins


885 Third Avenue


Suite 1000


New York, NY 10022


Attention: 
Scott O. Bowie


Fax:  (218) 906-1285


 


or at such other address as any of the above shall have specified by
notice in writing delivered to the others by certified mail, overnight delivery
or telecopy.


 


This Agreement shall be governed by and construed in accordance with
the law of the State of Delaware, regardless of the law that might be applied
under principles of conflict of laws. 
Any suit, action or proceeding against the Purchaser 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 located in the State of Delaware or the City of New
York, as Associates or any member thereof may elect in its sole discretion, and
the Purchaser hereby submits accordingly to the nonexclusive jurisdiction of
such courts for the purpose of any such suit, action, proceeding or
judgment.  The Purchaser hereby
irrevocably waives any objections which it 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 the City of New York, and hereby further irrevocably
waives 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 Associates or any member
thereof 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 the City of New
York, and the Purchaser hereby irrevocably waives any right which it may
otherwise have had to bring such an action in any other court, domestic or foreign,
or before any similar domestic or foreign authority. Associates and each member
thereof hereby submits accordingly to the jurisdiction of such courts for the
purpose of any such suit, action or proceeding.


 


1                                             If
Associates or any member thereof transfers its interest in the Company to an
affiliate of Associates, such affiliate shall assume the obligations hereunder
of Associates or such member thereof.


 


2                     Notwithstanding any other
provision of this Agreement, neither the general partner nor the limited
partners, nor any future general or limited partner of the KKR


 


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Partnership, shall have any personal
liability for performance of any obligation of such entity under this
Agreement.


 


3                     This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one and the same instrument.


 


4                     It is the understanding of the
undersigned that the Purchaser is aware that no Proposed Sale presently is
contemplated and that such a sale may never occur.


 


[Continued on next page.]


 


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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth herein.


 


	
   

  	
  KKR PARTNERS
  II, L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  KKR
  Associates Strata, its General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Strata
  L.L.C., its General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Perry
  Golkin

  	
   

  
	
   

  	
   

  	
  Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  KKR 1996
  FUND L.P.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  KKR
  Associates 1996 L.P., its General

  Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  KKR 1996 GP
  LLC, its General

  Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Perry
  Golkin

  	
   

  
	
   

  	
   

  	
  Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BRISTOL WEST
  ASSOCIATES LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  KKR 1996
  Fund, L.P., its Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  KKR
  Associates 1996 L.P., its General

  Partner,

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  KKR 1996 GP
  L.L.C., its General

  Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Perry
  Golkin

  	
   

  
	
   

  	
   

  	
  Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FISHER
  CAPITAL CORP. LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James R.
  Fisher

  	
   

  
	
   

  	
   

  	
  Managing
  Member

  	
   

  
						



 


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