EXHIBIT 1.1
COINMACH LAUNDRY CORPORATION
3,750,000 SHARES
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
DRAFT OF UNDERWRITING AGREEMENT
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November [ ], 1997
BT Alex. Xxxxx Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Associates, Inc.
Wheat, First Securities, Inc.
Xxxxxxxx & Company, Inc.
As Representatives of the
Several Underwriters
c/o BT Alex. Xxxxx Incorporated
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Coinmach Laundry Corporation (the "Company"), a Delaware corporation,
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and the persons named in Schedule I annexed hereto (each a "Selling
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Stockholder"), hereby confirm their agreement with you, as set forth below.
1. The Securities. Subject to the terms and conditions herein
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contained, the Company proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
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representatives (the "Representatives"), an aggregate of 2,500,000 shares of
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common stock, par value $.01 per share, of the Company (the "Common Stock"), and
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the Selling Stockholders, severally, propose to sell to the Underwriters an
aggregate of 1,250,000 shares of Common Stock in the respective amounts set
forth opposite their respective names in Schedule I (the aggregate of such
3,750,000 shares of Common Stock is hereinafter referred to as the "Firm
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Securities"). In addition, solely for the purpose of covering over-allotments,
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certain Selling Stockholders propose to grant
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to the Underwriters the option, exercisable by the Representatives of the
Underwriters, to purchase from the Company up to an additional 562,500 shares of
Common Stock in the respective amounts set forth opposite their respective names
in Schedule I hereto (the aggregate of such 562,500 shares of Common Stock is
hereinafter referred to as the "Additional Securities") as set forth below. The
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Firm Securities and the Additional Securities that may be sold to the
Underwriters are hereinafter collectively referred to as the "Securities."
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333- ) and a
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related preliminary prospectus for the registration of the Securities under the
Securities Act of 1933, as amended (the "Act"), and has filed such amendments
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thereto, if any, as may have been required prior to the date hereof.
As used in this Agreement, the term "Registration Statement" means
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such registration statement, as amended at the time when it was or is declared
effective, including all financial statements and schedules and exhibits thereto
and including any information omitted therefrom pursuant to Rule 430A under the
Rules and Regulations ("Rule 430A"), if applicable, and included in the
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Prospectus (as hereinafter defined); the term "Preliminary Prospectus" means
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each prospectus relating to the Securities as filed with such registration
statement or any amendment thereto (including the prospectus, if any, included
in such registration statement or any amendment thereto at the time it was or is
declared effective if declared effective prior to the execution and delivery of
this Agreement); and the term "Prospectus" means the prospectus relating to the
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Securities as first filed with respect to such registration statement with the
Commission pursuant to Rule 430A and Rule 424(b) under the Rules and Regulations
("Rule 424(b)"), if required, or, if no prospectus is required to be filed
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pursuant to Rule 430A or Rule 424(b), such term means the prospectus included in
such registration statement at the time it became or becomes effective; provided
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that if a revised Prospectus shall be provided to the Underwriters by the
Company and the Selling Stockholders for use in connection with the offering and
sale of the Securities that differs from the prospectus on file at the
Commission at the time such registration statement becomes effective or as first
filed under Rule 430A and Rule 424(b), the term "Prospectus" shall refer to the
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revised prospectus from and after the time it is first provided to the
Underwriters for such use. If the Company has filed an abbreviated registration
statement to register additional securities pursuant to Rule 462(b) under the
Act (the
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"Rule 462 Registration Statement") then any reference herein to "Registration
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Statement" shall be deemed to include such Rule 462 Registration Statement. All
references in this Agreement to the Registration Statement, Preliminary
Prospectus and Prospectus and to financial statements and schedules and other
information that is "contained," "included," "set forth," "described in" or
"stated" therein (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information that is or is deemed to be incorporated by reference therein; and
all references in this Agreement to amendments or supplements to the
Registration Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that is or is deemed to
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be incorporated by reference therein.
2. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, each Underwriter that:
(a) The registration statement originally filed with the Commission
with respect to the Securities, including the form of prospectus, together
with all amendments thereto, has been prepared by the Company in conformity
in all material respects with the requirements of the Act and the rules and
regulations (the "Rules and Regulations") of the Commission thereunder and
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the Company meets all the requirements for filing on Form S-3. The
Registration Statement at the time it was or will be declared effective and
at the Closing Date (as hereinafter defined) complies and will comply in
all material respects with the requirements of the Act and the Rules and
Regulations.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus nor instituted any proceeding for
such purpose. When the Registration Statement or any amendment thereto was
or is declared effective and on the Closing Date (as hereinafter defined),
it did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus, and any
amendments or supplements thereto on the date first filed with the
Commission pursuant to Rule 424(b) (or if not filed, on the date first
provided to the Underwriters in connection with the offering and sale of
the Securities) and on the Closing Date, (i) complied and will comply in
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all material respects with the requirements of the Act and the Rules and
Regulations, and (ii) did not and will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (b) do not apply to statements or omissions in
the Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto made in reliance upon and in conformity
with written information with respect to the Underwriters furnished to the
Company through the Representatives specifically for use therein.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the rules and regulations (the
"Exchange Act Regulations") of the Commission thereunder, and when read
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together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became or become
effective and at the Closing Date, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d) The Company and each of its Subsidiaries (the "Subsidiaries") have
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been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective business requires such
qualification, except where the failure to be so qualified would not be
reasonably expected to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations, business
or business prospects of the Company and its Subsidiaries, taken as a whole
(a "Material Adverse Effect"), and have all power and authority necessary
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to own or hold their respective properties and to conduct the businesses in
which they are engaged; and none of the Subsidiaries of the Company (other
than Coinmach Corporation, a Delaware corporation and a wholly owned
Subsidi-
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ary of the Company) is a "significant Subsidiary," as such term is defined
in Rule 405 of the Rules and Regulations.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform in all material respects to the description thereof
contained in the Prospectus; and all of the issued shares of capital stock
of each Subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except as disclosed in the Prospectus.
(f) Neither the Company nor any of its Subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and, to the actual knowledge of Xxxxxxx X. Xxxxxxxx, Xxxxxxxx
Xxxxx, Xxxxxx X. Xxxxx or Xxxx X. Xxxxxx (the "Officers"), no event has
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occurred that, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject
or (iii) is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business.
(g) The shares of the Common Stock to be sold by the Company and the
Selling Stockholders to the Underwriters hereunder have been duly and
validly authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued, fully paid and non-
assessable, and will conform to the description thereof contained in the
Prospectus.
(h) The Company has all requisite corporate power and authority to
execute and deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby.
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(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Subsidiaries is subject, nor will
such actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its Subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries or any of
their properties or assets; and except for the registration of the Common
Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Common Stock by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated hereby.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
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consistent basis throughout the periods involved. The pro forma financial
statements and other pro forma financial information (including the notes
thereto) included in the Registration Statement and the Prospectus (i)
present fairly the information shown therein, (ii) have been prepared in
accordance with the applicable requirements of Rule 11-02 of the Rules and
Regulations, (iii) have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements and
(iv) have been properly compiled
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on the basis described therein and the assumptions used in the preparation
of the pro forma financial statements and other pro forma financial
information (including the notes thereto) and included in the Registration
Statement and the Prospectus are reasonable and the adjustments used
therein are appropriate to give effect to the transactions or circumstances
referred to therein.
(l) Ernst & Young, LLP ("E&Y"), who have certified certain financial
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statements of the Company, whose report appears in the Prospectus and who
have delivered an initial letter referred to in Section 9(g) hereof, are
independent public accountants as required by the Act and the Rules and
Regulations.
(m) The statistical and market-related data included in the Prospectus
are based on or derived from sources that the Company and the Subsidiaries
believe to be reliable and accurate.
(n) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted any securities, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary course of
business and consistent with past practice, (iii) entered into any
transaction not in the ordinary course of business and consistent with past
practice or (iv) declared or paid any dividend on its capital stock.
(o) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property or assets of the Company
or any of its Subsidiaries is the subject that, if determined adversely to
the Company or any of its Subsidiaries, might have a Material Adverse
Effect; and to the actual knowledge of the Officers, no such proceedings
are threatened by governmental authorities or by others.
(p) Except as disclosed in the Prospectus, no labor disturbance by the
employees of the Company exists or, to the actual knowledge of the
Officers, is imminent that might reasonably be expected to have a Material
Adverse Effect.
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(q) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
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ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Section 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
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liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(r) Neither the Company nor any of its Subsidiaries, nor any director
or officer, nor to the knowledge of any of the Officers, any agent,
employee or other person authorized to act on behalf of the Company or any
of its Subsidiaries, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(s) The Company (i) makes and keeps accurate books and records in all
material respects and (ii) maintains internal accounting controls that
provide reasonable assurance that (A) material transactions are executed in
accordance with management's authorization and (B) material transactions
are recorded as necessary to permit preparation of its financial statements
and to maintain accountability for its assets.
(t) Except as described in the Registration Statement or the exhibits
thereto or in the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the
right (other than rights that have been waived or satisfied) to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be
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owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(u) Except as described in the Registration Statement or the
Prospectus, the Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus, including
any sales pursuant to Rule 144A under, or Regulation D or S of, the Act.
(v) Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
such date, to the actual knowledge of the Officers, there has not been any
change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its Subsidiaries, otherwise than as set forth
or contemplated in the Prospectus.
(w) (i) Neither the Company nor any of its Subsidiaries owns any real
property other than [ ]; (ii) the Company and
each of its Subsidiaries have marketable title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects, except as are described in the Prospectus or such as do not
materially interfere with the use made and proposed to be made (as
described in the Prospectus) of such property by the Company and its
Subsidiaries; and (iii) all real property and buildings held under lease by
the Company and its Subsidiaries are held by them under valid, subsisting
and enforceable leases, except where the failure to so hold real property
and buildings under valid, subsisting and enforceable leases would not be
reasonably expected to result in a Material Adverse Effect.
(x) Except as described in the Prospectus, the Company and each of its
Subsidiaries carry, or are covered by,
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insurance in such amounts and covering such risks as is, in the reasonable
judgment of the Company, adequate for the conduct of their respective
businesses and the value of their respective properties.
(y) The Company and each of its Subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of their
respective businesses and the Officers have no reason to believe that the
conduct of their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of
others.
(z) Neither the Company nor any Subsidiary is an "investment company"
within the meaning of such term under the Investment Company Act of 1940
and the rules and regulations of the Commission thereunder.
(aa) None of the Company, the Subsidiaries or an agent acting on their
behalf has taken or will take any action that might cause this Agreement or
the sale of the Securities to violate Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System.
(bb) Neither the Company nor any of its officers or directors or
affiliates (as defined in the Rules and Regulations) has taken or will
take, directly or indirectly, any action designed to stabilize or
manipulate the price of any security of the Company, or that has
constituted or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company,
to facilitate the sale or resale of any of the Securities in violation of
the Exchange Act or any applicable rules of the Nasdaq National Market
System.
(cc) The Company has filed, or properly been granted an extension for
filing, all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes due
thereon, and no tax deficiency has been determined that has had (nor do the
Officers have any actual knowledge of any tax deficiency that might
reasonably be expected to have) a Material Adverse Effect.
(dd) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treat-
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ment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its Subsidiaries (or, to the actual
knowledge of the Officers, any of their predecessors in interest) at, upon
or from any of the property now or previously owned or leased by the
Company or its Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or that would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action that would not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a Material Adverse
Effect; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or
into the environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or any of its Subsidiaries or with respect to which
the Officers have actual knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release that would not be
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect; and the terms "hazardous wastes,"
"toxic wastes," "hazardous substances" and "medical wastes" shall have the
meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
3. Representations and Warranties of the Selling Stockholders. Each
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Selling Stockholder severally represents and warrants to each Underwriter and
the Company that:
(a) Such Selling Stockholder has full right, power and authority to
enter into this Agreement and to sell, assign, transfer and deliver the
Securities to be sold by such Selling Stockholder hereunder. This
Agreement and the Power of Attorney attached hereto as Exhibit A have been
duly executed and delivered by such Selling Stockholder.
(b) Such Selling Stockholder will convey good and valid title to the
Common Stock to be delivered by such Selling Stockholder hereunder, free
and clear of all liens, encumbrances, equities and claims whatsoever.
Certificates in negotiable form for the aggregate number of Securities to
be sold by such Selling Stockholder have been placed in
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custody, under a custody agreement with the Company as custodian, in the
form attached hereto as Exhibit B.
(c) The information with respect to such Selling Stockholder included
in the Registration Statement and the Prospectus under the caption
"Principal and Selling Stockholders" and "Underwriting" does not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except such as
may have been obtained under the Act or otherwise and such as may be
required under state securities or the "Blue Sky" laws.
(e) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms and provisions of or constitute a
default under or result in the creation or imposition of any lien, charge,
or encumbrance upon the assets or properties of such Selling Stockholder,
pursuant to any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, letter of credit agreement, bond, debenture, note agreement
or other evidence of indebtedness, lease, contract or other agreement or
instrument to which such Selling Stockholder is a party or under any
statute or under any order, rule or regulation applicable to such Selling
Stockholder or of any court or other governmental body.
(f) The Registration Statement, the Prospectus or any post-effective
amendment or supplement thereto will (when they become effective or are
filed with the Commission, as the case may be) conform in all material
respects to the requirements of the Act and the Rules and Regulations and
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(g) Such Selling Stockholder has not taken and will not take, directly
or indirectly, any action designed to, or which has constituted, or which
might reasonably be expected to cause or result in, the stabilization or
manipulation of the price of the Common Stock of the Company and,
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other than as permitted by the Act or the Exchange Act, such Selling
Stockholder will not distribute any prospectus or other offering material
in connection with the offering of the Shares.
(h) Such Selling Stockholder (a) has no reason to believe that the
representations and warranties of the Company contained in Section 2 above
are not true and correct, (b) is familiar with the Preliminary Prospectus
and the Prospectus and (c) has no knowledge of any material fact, condition
or information not disclosed in the Preliminary Prospectus and the
Prospectus that could reasonable be expected to have a Material Adverse
Effect. The sale of the Securities by such Selling Stockholder pursuant
hereto is not prompted by any information concerning the Company or the
Subsidiaries which is not set forth in the Registration Statement.
4. Purchase, Sale and Delivery of the Securities.
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(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell and each of the Selling Stockholders
agree, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company and each of the Selling Stockholders, at a purchase price of $[ ]
per share, the number of Firm Securities (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Firm Securities to be issued and sold by the Company or sold by each of the
Selling Stockholders, as set forth opposite their respective names in Schedule I
hereto by a fraction, the numerator of which is the aggregate number of Firm
Securities to be purchased by such Underwriter as set forth opposite the name of
such Underwriter in Schedule II hereto and the denominator of which is the
aggregate number of Firm Securities to be purchased by all of the Underwriters
from the Company and all the Selling Stockholders hereunder (subject to
adjustment by you to eliminate fractions). The Representatives shall release
the Firm Securities for public sale promptly after this Agreement becomes
effective. The Representatives may from time to time change the public offering
price and other terms of the offering after the initial public offering to such
extent as they may determine.
In addition, upon written notice from you to the Selling Stockholders
not more than 30 days from the date hereof, the Underwriters may purchase from
time to time all or less than all
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of the Additional Securities at the purchase price per share to be paid for the
Firm Securities. The Selling Stockholders agree to sell to the Underwriters such
Additional Securities and the Underwriters agree, severally and not jointly, to
purchase such Additional Securities. Such Additional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
you to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the offering of
the Firm Securities. This option may be exercised at any time on or before the
thirtieth day following the date hereof, by written notice to the Selling
Stockholders. Such notice shall set forth the aggregate number of Additional
Securities as to which the option is being exercised, and the date and time when
the Additional Securities are to be delivered (such date and time being herein
referred to as an "Option Closing Date"); provided, however, that no Option
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Closing Date shall be earlier than the Closing Date (as defined below) nor
earlier than the second business day after the date on which notice of the
exercise of the option shall have been given nor later than the eighth business
day after the date on which notice of the option shall have been given. At any
Option Closing Date, the Underwriters will purchase from each Selling
Stockholder the number of Additional Securities (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Additional Securities to be sold by each of the Selling Stockholders, as set
forth opposite their respective names in Schedule I hereto by a fraction, the
numerator of which is the aggregate number of Additional Securities to be
purchased by the Underwriters on such Option Closing Date and the denominator of
which is the aggregate number of Additional Securities. No Additional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Additional
Securities or any portion thereof may be surrendered and terminated at any time
upon notice by you to the Selling Stockholders.
(b) Certificates in negotiable form for the total number of Securities
to be sold hereunder by the Selling Stockholders have been placed in custody
with the Company, as custodian (the "Custodian") pursuant to the Custody
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Agreements executed by the Selling Stockholders for delivery of all Securities.
Each Selling Stockholder specifically agrees that the Securities represented by
the certificates held in custody for such Selling Stockholder under the Custody
Agreement are subject to the interest of the Underwriters hereunder, and that
the ar-
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rangements made by such Selling Stockholder for such custody are to that extent
irrevocable, and that the obligations of such Selling Stockholder hereunder
shall not be terminable by any act or deed of the Selling Stockholder (or by any
other person, or entity, including the Company, the Custodian or the
Underwriters) or by operation of law or by the occurrence of any other event or
events, except as set forth in the Custody Agreement. If any such event should
occur prior to the delivery to the Underwriters of the Securities hereunder,
certificates for the Securities shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as if such event had
not occurred. The Custodian is authorized to receive and acknowledge receipt of
the proceeds of the sale of the Securities held by it against the delivery of
such Securities.
(c) Certificates in definitive form for the Securities that each
Underwriter has agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as such Underwriter requests
upon notice to the Selling Stockholders at least 48 hours prior to the Closing
Date or Option Closing Date, as the case may be, shall be delivered by or on
behalf of the Selling Stockholders to the Underwriters, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer of
same day funds, or such other payment procedures agreed to by the parties, to
the account designated by each Selling Stockholder. Such delivery of and
payment for the Securities shall be made at the offices of Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York time,
on the Closing Date or Option Closing Date, as the case may be, or at such other
place, time or date as you, the Company and the Selling Stockholders may agree
upon, such time and date of delivery against payment being herein referred to as
the "Closing Date" or "Option Closing Date", as the case may be. The Selling
Stockholders will make such certificates for the Securities available for
checking and packaging by the Underwriters at the offices of BT Alex. Xxxxx
Incorporated in New York, New York at least 24 hours prior to the Closing Date
or Option Closing Date, as the case may be.
5. Offering by the Underwriters. After the Registration Statement
----------------------------
becomes effective, the Underwriters propose to offer for sale to the public the
Securities at the price and upon the terms set forth in the Prospectus relating
to the Securities.
6. Covenants of the Company. The Company covenants and agrees with
------------------------
the Underwriters:
-16-
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Act; to make no further amendment or any supplement to the Registration
Statement or to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Representatives with copies thereof; to
advise the Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, of
the suspension of the qualification of the Common Stock for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly all commercially reasonable efforts to
obtain its withdrawal.
(b) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement) and (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the delivery
of a prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Securities or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which, in the reasonable judgment of Xxxxxx Xxxxxx
& Xxxxxxx, outside counsel for the Underwriters, the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it
-17-
shall be necessary to amend or supplement the Prospectus in order to comply
with the Act, to notify the Representatives and, upon their request, to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended or supplemented Prospectus that will
correct such statement or omission or effect such compliance.
(c) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the reasonable
judgment of the Representatives, be required by the Act or requested by the
Commission.
(d) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters a
reasonable amount of time prior to such proposed filing and not to file any
such amendment or supplement to which the Representatives or counsel for
the Underwriters shall reasonably object.
(e) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith.
(f) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Common Stock for
offering and sale under the securities or "Blue Sky" laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Securities; provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(g) As soon as practicable after the Effective Date, to make generally
available to the Company's securityholders and to deliver to the
Representatives an earnings statement of the Company and its Subsidiaries
(which need
-18-
not be audited) complying with Section 11(a) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(h) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by the
Company to its stockholders and all public reports and all reports and
financial statements furnished to or filed by the Company with the
Commission or to the principal national securities exchange upon which the
Common Stock may be listed pursuant to requirements of or agreements with
such exchange or the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder.
(i) Prior to the Closing Date and any Option Closing Date, as the case
may be, to furnish to the Representatives, as soon as they have been
prepared and are available, a copy of any unaudited interim consolidated
financial statements of the Company and any pro forma information for any
period subsequent to the period covered by its most recent financial
statements included in the Registration Statement and the Prospectus.
(j) To file with the Nasdaq National Market System all documents and
notices required by the Nasdaq National Market System of companies that
have issued securities that are traded in the over-the-counter market and
quotations for which are reported by the Nasdaq National Market System.
(k) That the Company will not at any time, directly or indirectly,
take any action designed, or that might reasonably be expected, to cause or
result in, or that will constitute, stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of any
of the Securities in violation of the Exchange Act or any applicable rules
of the Nasdaq National Market System.
(l) To take such steps as shall be reasonably necessary to ensure that
neither the Company nor any Subsidiary shall become an "investment company"
within the meaning of such term under the Investment Company Act of 1940
and the rules and regulations of the Commission thereunder.
-19-
(m) To apply the net proceeds from the sale of the Common Stock being
sold by the Company as set forth in the Prospectus.
(n) During a period of 90 days from the date hereof (the "Lock-up
-------
Period"), the Company will not, without the Representatives' prior written
------
consent, offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or any interests therein, or any
securities convertible into, or exchangeable for, shares of Common Stock or
rights to acquire the same except for Securities issued pursuant to this
Agreement.
7. Covenants of Selling Stockholders. Each Selling Stockholder
---------------------------------
agrees with the several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent necessary to
cause the Registration Statement or any post-effective amendment thereto to
become effective at the earliest possible time.
(b) Such Selling Stockholder will use such Selling Stockholder's
reasonable best efforts to do or perform all things required to be done or
performed by it prior to the Closing Date to satisfy all conditions
precedent to the delivery of the Securities.
(c) During the Lock-up Period such Selling Stockholder will not,
without the Representatives' prior written consent, offer, sell, contract
to sell or otherwise dispose of, directly or indirectly, any shares of
Common Stock or any interests therein, or any securities convertible into,
or exchangeable for, shares of Common Stock or rights to acquire the same
except for Securities sold pursuant to this Agreement.
(d) Such Selling Stockholder will not take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Securities in violation of the
Exchange Act or any applicable rules of the Nasdaq National Market System.
(e) Each Selling Stockholder agrees to notify the Representatives
promptly of any information that comes to such Selling Stockholder's
attention that would cause such
-20-
Selling Stockholder to have reason to believe that his or its
representations, warranties and statements in this Agreement are not
accurate in all material respects.
(f) Except as herein contemplated with respect to the Securities to be
included in the Registration Statement, each Selling Stockholder agrees to
waive any registration rights to which such Selling Stockholder may be
entitled in connection with the public offering herein contemplated.
8. Expenses. The Company agrees to pay all costs and expenses
--------
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated, as provided in this Section 8 including all costs and expenses
incident to (i) the printing or other production of documents with respect to
the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto and
the Registration Statement, any Preliminary Prospectus and the Prospectus and
any amendment or supplement thereto, (ii) the printing (or reproduction) and
delivery of this Agreement, the Securities, any Blue Sky Memoranda and all other
documents and agreements printed (or reproduced) and delivered in connection
with the offering of the Securities, (iii) all arrangements relating to the
delivery to the Underwriters of copies of the foregoing documents, (iv) the fees
and disbursements of the counsel, the accountants and any other experts or
advisors retained by the Company or its Subsidiaries, (v) preparation (including
printing), issuance and delivery to the Underwriters of certificates evidencing
the Securities, (vi) the qualification of the Securities in the United States
and Canada under state securities and "Blue Sky" laws, including filing fees and
reasonable fees and disbursements of counsel for the Underwriters relating
thereto, (vii) the filing fees of the Commission and the National Association of
Securities Dealers, Inc. relating to the Securities, (viii) expenses of the
Company and its Subsidiaries in connection with any meetings with prospective
investors in the Securities, (ix) advertising relating to the offering of the
Securities (other than as shall have been specifically approved in writing by
the Underwriters to be paid by the Underwriters) and (x) the fees and expenses
incurred in connection with the quotation of the Securities on the Nasdaq
National Market System. Each Selling Stockholder shall pay the costs and
expenses incident to the performance by it of its obligations hereunder and in
connection with the offer, sale and delivery of the Securities to be sold by it,
including any stock transfer taxes payable upon the sale of such Securities to
the Underwriters, the fees and expenses of
-21-
any counsel retained by it and the underwriting discounts and commissions
payable to the Underwriters.
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 9 hereof is not satisfied, because this Agreement is terminated pursuant
to Section 12 hereof or because of any failure, refusal or inability on the part
of the Company, any of the Company's Subsidiaries or any Selling Stockholder to
perform all obligations and satisfy all conditions on their respective parts to
be performed or satisfied hereunder (other than solely by reason of a default by
the Underwriters of its obligations hereunder after all conditions hereunder
have been satisfied in accordance herewith), the Company will promptly reimburse
the Underwriters upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel for the Underwriters)
that shall have been incurred by the Underwriters in connection with the
proposed purchase and sale of the Securities not so delivered.
9. Conditions of the Underwriters' Obligations. The obligation of
-------------------------------------------
the Underwriters to purchase and pay for the Firm Securities on the Closing Date
and the Additional Securities on each Option Closing Date shall be subject to
the following additional conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a); no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
or to the Selling Stockholder on or prior to the Closing Date and each
Option Closing Date, as the case may be, that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact that in the reasonable opinion of Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Underwriters, is material or omits to state a fact
that in the reasonable opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
-22-
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Common Stock, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Xxxxxxxx Kill & Olick, P.C., as counsel to the Company, shall have
furnished to the Representatives its written opinion, addressed to the
Underwriters and dated the Closing Date and each Option Closing Date, as
the case may be, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company and each of the Subsidiaries have been duly
incorporated and are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, and have the
corporate power and authority to own or hold their respective
properties and to conduct the businesses in which they are currently
engaged and as described in the Prospectus.
(ii) All of the outstanding capital stock of the Company has been
duly and validly authorized and issued, is fully paid and non-
assessable and conforms to the description thereof contained in the
Prospectus. With respect to the shares of Common Stock being
delivered pursuant to this Agreement, such Common Stock has been duly
and validly authorized and, upon receipt of payment therefor, shall be
duly issued, fully paid and non-assessable. The Common Stock conforms
to the description thereof contained in the Prospectus. All of the
outstanding capital stock of each Subsidiary has been duly and validly
authorized and issued and is fully paid, nonassessable and, to such
counsel's knowledge, is owned by the Company free and clear of all
liens, encumbrances, equities or claims, except for any liens,
encumbrances, equities or claims (a) of Bankers Trust Company
("BTCo.") under the Credit Agreement, or (b) which may be described in
the Prospectus. The Common Stock has been duly authorized for
quotation on the Nasdaq National Market.
-23-
(iii) Except as may be described in the Prospectus, (a) there
are no preemptive or other rights in the Company's certificate of
incorporation or bylaws to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of Common Stock
and (b) to such counsel's knowledge, there are no preemptive or other
rights to subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of Common Stock in any other
agreement or instrument.
(iv) To such counsel's knowledge, neither the Company nor any of
the Subsidiaries owns any real property other than [ ].
To such counsel's knowledge, the Company and each of the Subsidiaries
have marketable title to all personal property owned by them, free and
clear of all liens, encumbrances and defects, except (A) liens arising
under that certain Credit Agreement, dated as of [ ],
between the Company, Coinmach Corporation and the Lenders party
thereto, (B) purchase money liens arising in the ordinary course of
business, and (C) such liens, encumbrances and defects that do not
materially interfere with the use made and proposed to be made, as
described in the Registration Statement, of such personal property by
the Company or any Subsidiary. To such counsel's knowledge, all real
property and buildings held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable
leases, except (A) laundry room or location leases entered into by the
Company or any of the Subsidiaries, (B) any real property or buildings
the failure to so hold which would not be reasonably expected to
result in a Material Adverse Effect, and (C) to the extent that such
validity or enforceability may be limited by (1) bankruptcy,
insolvency, fraudulent conveyance, preferential transfer,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights and remedies
generally; (2) general principles of equity (whether such
enforceability is considered in a proceeding in equity or at law), and
by the discretion of the court before which any proceeding therefor
may be brought, including, without limitation, (x) the possible
unavailability of specific performance, injunctive relief or any other
equitable remedy, and (y) concepts of materiality, reasonableness,
good faith and fair dealing.
-24-
(v) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of the Subsidiaries is a party or of which
any property or assets of the Company or any of the Subsidiaries is
the subject that, if determined adversely to the Company or any of the
Subsidiaries, might reasonably be expected to have a Material Adverse
Effect; and, to such counsel's knowledge, no such proceedings are
threatened by governmental authorities or by others except as
disclosed in the Prospectus.
(vi) The Registration Statement was declared effective under the
Act; the Prospectus was filed with the Securities and Exchange
Commission pursuant to subparagraph (1) of Rule 424(b) of the rules
and regulations promulgated under the Securities Act (the "Rules and
---------
Regulations"); and, to our knowledge, no stop order suspending the
-----------
effectiveness of the Registration Statement has been issued and, to
our knowledge, no proceeding for that purpose is pending.
(vii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to
the CLOSING DATE (other than the financial statements and related
schedules therein, as to which financial statements and related
schedules no opinion need be expressed) comply as to form in all
material respects with the requirements of the Act and the Rules and
Regulations.
(viii) To such counsel's knowledge, there are no contracts or
other documents that are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Act or by the
Rules and Regulations that have not been described in the Prospectus
or filed as exhibits to the Registration Statement.
(ix) The Company has full corporate power and authority to enter
into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company.
(x) The issuance and sale of the shares of Common Stock being
delivered on the Closing Date and each Option Closing Date, as the
case may be, by the
-25-
Company and the Selling Stockholders and the compliance by the Company
and the Selling Stockholders with the provisions of the Underwriting
Agreement will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument, in each such case known to us and to which the Company
or any of the Subsidiaries is a party or to which any of the property
or assets of the Company or of any of the Subsidiaries is subject,
except for any such conflicts, breaches, violations or defaults that
would not reasonably be expected to result in a Material Adverse
Effect, nor will such actions result in (i) any violation of the
provisions of the Second Amended and Restated Certificate of
Incorporation of the Company or the Second Amended and Restated By-
laws of the Company or the charter or by-laws of any of the
Subsidiaries, or (ii) to our knowledge, any violation of any statute
or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties or assets and which could
reasonably be expected to result in a Material Adverse Effect. Except
for the registration of the Common Stock under the Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under or by the Exchange Act, as amended, the Act,
the National Association of Securities Dealers, Inc., the Nasdaq
National Market and applicable state securities laws in connection
with the purchase and distribution of the Common Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of the
Underwriting Agreement by the Company and the consummation of the
transactions contemplated thereby.
(xi) To our knowledge and except as may be described in the
Registration Statement, there are no contracts, agreements or
understandings between the Company or any of the Subsidiaries and any
person granting such person the right (other than rights that have
been waived or satisfied) to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company
-26-
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement.
(xii) The Company is not an "investment company" as defined in
Section 3(a) of the Investment Company Act.
Such counsel shall also state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
representatives of you and your counsel, at which the contents of the
Registration Statement and Prospectus and related matters were discussed and,
although we did not independently verify, we are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus (except for
the statements made in the Registration Statement under the caption "Description
of Capital Stock" and "Shares Eligible for Future Resale" insofar as such
statements relate to the Common Stock and concern legal matters), on the basis
of the foregoing (relying as to materiality to a large extent upon the
statements of officers and other representatives of the Company) no facts have
come to our attention that cause us to believe that (i) the Registration
Statement, as of the date and time as of which the Registration Statement is
declared effective by the Commission, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and (ii) the
Prospectus, as of its date and as of the date hereof, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; it being understood
that we are not commenting on and express no opinion with respect to the
financial statements and related notes thereto, schedules or other financial or
statistical data included in or omitted from the Registration Statement, the
Prospectus or any amendments or supplements thereto.
In rendering such opinion, such counsel may rely as to all matters of
law other than the law of the United States or of the State of New York and
the corporate law of the State of Delaware upon opinions of counsel
satisfactory to you, in which case the opinion shall state that they have
no reason to believe that you and they are not entitled so to rely.
-27-
(e) The Selling Stockholders shall have furnished to you the opinion
of Xxxxxxxx Kill & Olick, P.C., counsel for the Selling Stockholders, or of
such other counsel to the Selling Stockholders as shall be satisfactory to
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, dated the Closing
Date and each Option Closing Date, as the case may be, to the effect that:
(i) This Agreement, the Powers of Attorney and the Custody
Agreement have been duly executed and delivered by the Selling
Stockholders.
(ii) The Selling Stockholders have the power and authority to
sell, transfer and deliver in the manner provided in this Agreement
the Securities being sold by the Selling Stockholders hereunder.
(iii) The delivery by the Selling Stockholders to the several
Underwriters of certificates for the Securities being sold hereunder
by the Selling Stockholders against payment therefor as provided
herein, assuming the Representatives purchased the Securities in good
faith without knowledge of any adverse claim, will pass good and valid
title to such Securities to the several Underwriters, free and clear
of all liens, encumbrances, equities and claims whatsoever.
(f) The Representatives shall have received from Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and each Option Closing Date, as the case may be, with respect
to the issuance and sale of the Common Stock, the Registration Statement,
the Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as such counsel reasonably requests for the purpose of
enabling it to pass upon such matters.
(g) At the time of execution of this Agreement, the Representatives
shall have received from E&Y, a letter in form and substance satisfactory
to the Representatives, addressed to the Underwriters and dated the date
hereof, (i) confirming that they are independent public accountants within
the meaning of the Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission, (ii) stating, as of the date hereof
(or, with
-28-
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof),
the conclusions and findings of E&Y with respect to the financial
information and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public offerings.
(h) With respect to the letter of E&Y referred to in the preceding
paragraph and delivered to the Representatives concurrently with the
execution of this Agreement (the "initial letter"), the Company shall have
--------------
furnished to the Representatives a letter (the "bring-down letter") of such
-----------------
accountants, addressed to the Underwriters and dated the CLOSING DATE, and
each Option Closing Date, as the case may be, (i) confirming that they are
independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than three days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth
in the initial letter.
(i) The representations and warranties of the Company and the Selling
Stockholders contained in this Agreement shall be true and correct in all
material respects on and as of the date hereof and on and as of the Closing
Date and each Option Closing Date, as the case may be, as if made on and as
of such date and you shall have received certificates, dated as of the
Closing Date and each Option Closing Date, as the case may be, and signed
by or on behalf of the Selling Stockholders to the effect set forth in this
Section 9(i); the statements of the Company's officers made pursuant to any
certificate delivered in accordance with the provisions hereof shall be
true and correct in all material respects on and as of the date made and
on and as of the Closing Date and each Option Closing Date, as the case may
be; the Company and the Selling Stockholders shall have complied in all
material respects with all agreements and satisfied all conditions on its
part to be performed or
-29-
satisfied hereunder at or prior to the Closing Date and each Option Closing
Date, as the case may be; and subsequent to the date of the most recent
financial statements in the Prospectus, there shall have been no Material
Adverse Change or any development involving a prospective Material Adverse
Change.
(j) The sale of the Securities by the Company and the Selling
Stockholders hereunder shall not be enjoined (temporarily or permanently)
on the Closing Date or any Option Closing Date, as the case may be.
(k) (i) Neither the Company nor any of its Subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its Subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its Subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is, in the reasonable
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered on the CLOSING DATE and each
Option Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
(l) The Company shall have furnished to the Representatives a
certificate, dated the Closing DATE, and each Option Closing Date, as the
case may be, of its Chairman of the Board and Chief Executive Officer and
its Senior Vice President and Chief Financial Officer stating that:
(i) The representations and warranties of the Company in Section
2 that are qualified with reference to a Material Adverse Effect or
materiality are true and correct as of the Closing Date and each
Option Closing Date, as the case may be; and the representations and
warranties of the Company that are not so qualified shall be true and
correct in all material
-30-
respects, in each case as of the Closing Date and each Option Closing
Date, as the case may be; the Company has complied in all material
respects with all its agreements contained herein; and the conditions
set forth in Sections 9(a) and 9(k) have been fulfilled in all
material respects; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion, (A) as of the Effective Date,
the Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event has
occurred that should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus.
(m) Each of the Company and each Selling Stockholder shall have
furnished to you "lock-up" letters, in form and substance satisfactory to
you, signed by the Company or such Selling Stockholder, as the case may be,
prohibiting such persons from offering, selling, contracting to sell or
otherwise disposing, directly or indirectly, of any shares of Common Stock
or any interests therein, or any securities convertible into, or
exchangeable for, shares of Common Stock or rights to acquire the same,
during the Lock-up Period, without the prior written consent of the
Representatives.
(n) The Selling Stockholders shall not have failed at or prior to the
Closing Date and each Option Closing Date, as the case may be to have
performed or complied with any of their agreements herein contained and
required to be performed or complied with by them hereunder at or prior to
the Closing Date.
(o) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt or equity
securities.
-31-
(p) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the sole
judgment of Representatives, impracticable or inadvisable to proceed with
the public offering or delivery of the Common Stock being delivered on the
Closing Date and each Option Closing Date, as the case may be, on the terms
and in the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
10. Indemnification and Contribution.
--------------------------------
(a) The Company and Golder, Thoma, Cressey, Rauner, Fund IV, L.P.
("GTCR IV") agree jointly and severally to indemnify and hold harmless each
---------
Underwriter, each Selling Stockholder (other than GTCR IV) and each person, if
any, who controls any Underwriter or any Selling Stockholder (other than GTCR
IV) within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter, such Selling Stockholder (other than GTCR IV) or such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
-32-
(i) any untrue statement or alleged untrue statement of any material fact
contained in (A) the Registration Statement or any amendment thereto or
any Preliminary Prospectus or the Prospectus or any amendments or
supplements thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the securities or
"Blue Sky" laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"); or
-----------
(ii) the omission or alleged omission to state in such Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application, a
material fact required to be stated therein or necessary to make the
statements therein not misleading,
and will reimburse, as incurred, each Underwriter, each Selling Stockholder
(other than GTCR IV) and each such controlling person for any reasonable legal
or other out-of-pocket expenses reasonably incurred by any such Underwriter,
Selling Stockholder (other than GTCR IV) or any such controlling person in
connection with investigating or defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action in
respect thereof; provided that the Company will not be liable in any such case
--------
to the extent, but only to the extent, that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendments or supplements thereto, or any Application in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
with respect to the Underwriters, or by the Selling Stockholders (other than
GTCR IV) with respect to the Selling Stockholders (other than GTCR IV)
specifically, for use therein; provided, further, that the Company will not be
-------- -------
liable to any Underwriter if such untrue statement or omission or alleged untrue
statement or omission was contained or made in any Preliminary Prospectus and
completely corrected in the Prospectus and any such loss, liability, claim,
damage or expense suffered or incurred by any Underwriter resulted from any
action, claim or suit by any person who purchased Securities that are the
subject thereof from any Underwriter and such Underwriter failed to deliver or
provide a copy of the Prospectus relating to the Securities to such person with
or prior to the confirmation of the sale of such Securities sold to such person
in any case where delivery is required by the Act or the Rules and Regulations,
unless such failure to deliver or provide a copy of the Prospectus relating
-33-
to the Securities was a result of noncompliance by the Company with Section
6(c)(ii) of this Agreement. This indemnity agreement will be in addition to any
liability that the Company may otherwise have to the indemnified parties. The
Company shall not be liable under this Section 10 for any settlement of any
claim or action effected without its consent, which shall not be unreasonably
withheld.
(b) Each of Xxxxxxx X. Xxxxxxxx, Xxxxxxxx Xxxxx and Xxxxxx X. Xxxxx,
officers of the Company (the "Inside Sellers") agree, severally but not jointly,
--------------
to indemnify and hold harmless the Company, its directors and officers who
signed the Registration Statement, each Underwriter and each person, if any, who
controls the Company or any Underwriter within the meaning of Section 15 of the
Act of Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company, or any such director, officer or underwriter
or controlling person may become subject under the Act, the Exchange Act, or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or any Application or (ii) the omission
or the alleged omission to state therein a material fact required to be stated
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
necessary to make the statements therein not misleading; and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Company or any such
director, officer or Underwriter or controlling person in connection with
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof; provided, that each Inside Seller shall not be liable under this
--------
Section 10 for any amounts in excess of the product of the purchase price per
share set forth in Section 4 hereof and the number of shares being sold by such
Inside Seller hereunder. This indemnity agreement will be in addition to any
liability that the Inside Seller may otherwise have to the indemnified parties.
No Inside Seller shall be liable under this Section 10 for any settlement of any
claim or action effected without its consent, which shall not be unreasonably
withheld.
-34-
(c) Each Selling Stockholder other than GTCR IV and the Inside Sellers
(the "Other Sellers") severally agrees to indemnify and hold harmless the
-------------
Company, each of its directors and each of its officers who signed the
Registration Statement, each Selling Stockholder and each person, if any, who
controls the Underwriters, the Company or any Selling Stockholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which such Underwriter, the Company,
or any such director, officer or Selling Stockholder or controlling person may
become subject under the Act, the Exchange Act, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company or any Underwriter by such Other Sellers specifically
for use therein; and, subject to the limitation set forth immediately preceding
this clause, will reimburse, as incurred, any legal or other expenses incurred
by such Underwriter, the Company or any such director, officer or Selling
Stockholder or controlling person in connection with investigating or defending
against or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or action in respect thereof; provided, that each Other
--------
Seller shall not be liable under this Section 10 for any amounts in excess of
the product of the purchase price per share set forth in Section 4 hereof and
the number of shares being sold by such Other Seller hereunder. This indemnity
agreement will be in addition to any liability that the Underwriters may
otherwise have to the indemnified parties. No Underwriter shall be liable under
this Section 10 for any settlement of any claim or action effected without its
consent, which shall not be unreasonably withheld.
(d) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors and each of its officers who signed the
Registration Statement, each Selling Stockholder and each person, if any, who
controls the Company or any Selling Stockholder within the meaning of Section 15
of the
-35-
Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company, or any such director, officer or Selling
Stockholder or controlling person may become subject under the Act, the Exchange
Act, or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or any Application or
(ii) the omission or the alleged omission to state therein a material fact
required to be stated in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein; and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses incurred by the Company or
any such director, officer or Selling Stockholder or controlling person in
connection with investigating or defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
that the Underwriters may otherwise have to the indemnified parties. No
Underwriter shall be liable under this Section 10 for any settlement of any
claim or action effected without its consent, which shall not be unreasonably
withheld.
(e) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action for which such indemnified party
is entitled to indemnification under this Section 10, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 10, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
it from any liability that it may have to any indemnified party otherwise than
under this Section 10. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; provided that if the defendants in any
--------
-36-
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, then
the indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified party
or parties shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 10 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by any Underwriter, in the case of paragraphs (a), (b) and (c) of
this Section 10, or the Company and the Selling Stockholders, in the case of
paragraph (d) of this Section 10, representing the indemnified parties under
such paragraph (a), (b), (c) or (d), as the case may be, who are parties to such
action or actions), (ii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party or
(iii) the indemnifying party shall have failed to assume the defense or retain
counsel reasonably satisfactory to the indemnified party. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party, which consent shall not be unreasonably withheld.
(f) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 10 is for any reason unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemni-
-37-
fied party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect (i)
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the offering of the Securities
or (ii) if the allocation provided by the foregoing clause (i) is not permitted
by applicable law, not only such relative benefits but also the relative fault
of the indemnifying party or parties on the one hand and the indemnified party
on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Company and the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as (x) the total proceeds
from the offering (net of underwriter's discounts and commissions but before
deducting expenses) received by the Company and the Selling Stockholders and (y)
the total underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by an indemnified party or parties on the one
hand, or the indemnifying party or parties on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Company, the Selling Stockholders and the Underwriters
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Company and the
--------
Selling Stockholders on the one hand and the Underwriters on the other hand were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph (f). Notwithstanding any other provision of
this paragraph (f), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the total underwriting discounts and
commissions received by such Underwriter under this Agreement, less the
aggregate amount of any damages that such Underwriter has otherwise paid or been
required to pay by reason of the untrue or alleged untrue statements or the
omissions or alleged omissions to state a material fact, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding any other
-38-
provision of this paragraph (f), no Selling Stockholder (other than GTCR IV)
shall be liable under this Section 10 for any amounts in excess of the product
of the purchase price per share set forth in Section 4 and the number of shares
being sold by such Selling Stockholder hereunder. For purposes of this paragraph
(f), each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
and each officer of the Company who signed the Registration Statement and each
person, if any, who controls the Company or any Selling Stockholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Company or such Selling Stockholder, as
the case may be.
11. Survival Clause. The respective representations, warranties,
---------------
agreements, covenants, indemnities and other statements of the Company, the
Company's officers, the Selling Stockholders and the Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company or any of its officers or
directors or any Selling Stockholder, the Underwriters or any controlling person
referred to in Section 10 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 8 and 10 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
12. Termination.
-----------
(a) This Agreement may be terminated in the sole discretion of the
Representatives by notice to the Company and the Selling Stockholders, given
prior to the Closing Date or Option Closing Date, as the case may be, in the
event that the Company or any of the Selling Stockholders shall have failed,
refused or become unable to perform all obligations and satisfy all conditions
on their respective parts to be performed or satisfied hereunder at or prior
thereto or if, at or prior to the Closing Date or Option Closing Date, as the
case may be, any of the events described in Section 9(k), 9(o) or 9(p) shall
have occurred or if the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement.
(b) Termination of this Agreement pursuant to this Section 12 shall be
without liability of any party to any other party except as provided in Section
11 hereof.
-39-
13. Increase in Underwriters' Commitments. If any Underwriter shall
-------------------------------------
default in its obligation to take up and pay for the Securities to be purchased
by it hereunder on the Closing Date or any Option Closing Date and if the amount
of Securities that all Underwriters so defaulting shall have agreed but failed
to take up and pay for does not exceed 10% of the total number of Securities
that the Underwriters are obligated to purchase on the Closing Date or Option
Closing Date, as the case may be, the non-defaulting Underwriters shall take up
and pay for (in addition to the Securities they are obligated to purchase
pursuant to Section 1 hereof) the number of Securities agreed to be purchased by
all such defaulting Underwriters on the Closing Date or Option Closing Date, as
the case may be, as hereinafter provided. Such Securities shall be taken up and
paid for by such non-defaulting Underwriter or Underwriters in such amount or
amounts as you may designate with the consent of each Underwriter so designated
or, in the event no such designation is made, such Securities shall be taken up
and paid for by all non-defaulting Underwriters pro rata in proportion to the
--- ----
aggregate amount of Securities set opposite the names of such non-defaulting
Underwriters in Schedule II.
If a new allocation is made in accordance with the foregoing
provision, you shall have the right to postpone the Closing Date or Option
Closing Date, as the case may be, for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 13 with like effect as if
such substituted Underwriter had originally been named in Schedule II.
If the amount of Securities that all Underwriters so defaulting shall
have agreed but failed to take up and pay for exceeds 10% of the total number of
Securities that the Underwriters are obligated to purchase on the Closing Date
or Option Closing Date, as the case may be, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter (provided that
if such default occurs with respect to Additional Securities after the Closing
Date, this Agreement will not terminate as to the Firm Securities).
-40-
14. Information Supplied by the Underwriters and Selling
----------------------------------------------------
Stockholders.
(a) The statements set forth in the last paragraph on the front cover
page of the Prospectus relating to the Securities and the first, second, fourth,
ninth and last paragraphs under the heading "Underwriting" in the Prospectus
relating to the Securities (to the extent such statements relate to the
Underwriters) constitute the only information furnished by the Underwriters to
the Company and the Selling Stockholders for the purposes of Sections 2(b),
10(a) and 10(d) hereof. Each Underwriter confirms that such statements, to the
extent such statements relate to each such Underwriter, are correct in all
material respects.
(b) The number of shares of Common Stock beneficially owned by the
Other Sellers prior to and after the offering of the Securities and footnotes in
Table 1 under the heading "Principal and Selling Stockholders" in the Prospectus
constitute the only information furnished by the Other Sellers to the Company
and the Underwriters for the purposes of Section 10 (c) hereof. Each Other
Seller confirms that such information, to the extent such statements relate to
each Other Seller, is correct in all material respects.
15. Notices. All communications hereunder shall be in writing and,
-------
if sent to the Underwriters, shall be mailed or delivered or telecopied and
confirmed in writing to the Representatives in care of BT Alex. Xxxxx
Incorporated, One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Finance Department, and if sent to any Selling
Stockholder, to such Selling Stockholder in care of the Company and if sent to
the Company, shall be mailed, delivered or telegraphed and confirmed in writing
to Coinmach Laundry Corporation, 00 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000,
Attention: Chief Financial Officer.
16. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the Underwriters, the Company and the Selling Stockholders and
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained. This Agreement and all
conditions and provisions hereof are intended to be and are for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that (i) the indemnities of the Company and the Selling Stockholders
-41-
contained in Section 10 of this Agreement shall also be for the benefit of any
person or persons who control the Underwriters within the meaning of Section 15
of the Act or Section 20 of the Exchange Act and (ii) the indemnities of the
Underwriters contained in Section 10 of this Agreement shall also be for the
benefit of the directors of the Company, the Company's officers who have signed
the Registration Statement, the Selling Stockholders and any person or persons
who control the Company or the Selling Stockholders within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Securities from the Underwriters will be deemed a successor because of such
purchase.
17. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
--------------
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
18. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-42-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company,
the Selling Stockholders and the Underwriters.
Very truly yours,
COINMACH LAUNDRY CORPORATION
By: __________________________
Name:
Title:
SELLING STOCKHOLDERS,
by [ ],
as agent and on behalf of
each Selling Stockholder
By: __________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BT ALEX. XXXXX INCORPORATED
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Associates, Inc.
Wheat, First Securities, Inc.
Xxxxxxxx & Company, Inc.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters named in Schedule II hereto.
By BT ALEX. XXXXX INCORPORATED
By
------------------------------
Name:
Title:
SCHEDULE I
COINMACH LAUNDRY CORPORATION
Selling Stockholders
Number of
Number of Firm Additional
Name/Entity Securities Securities
----------- ---------- ----------
SCHEDULE II
Number of
Shares to
Underwriter Be Purchased
----------- ------------
BT Alex. Xxxxx Incorporated ......................
Xxxxxx Brothers Inc. .............................
Xxxxxxx Xxxxx & Associates, Inc. .................
Wheat, First Securities, Inc. ....................
Xxxxxxxx & Company Inc. ..........................
_________
Total 3,750,000
---------
