EXHIBIT 1
30,000,000 Shares
ARAMARK Worldwide Corporation
Class B Common Stock
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Underwriting Agreement
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, 200
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ARAMARK Worldwide Corporation, a Delaware corporation ("ARAMARK
Worldwide"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 30,000,000 shares (the "Firm Shares") and, at
the election of the Underwriters, up to 4,500,000 additional shares (the
"Optional Shares") of Class B Common Stock ("Class B Stock") of ARAMARK
Worldwide (the Firm Shares and the Optional Shares that the Underwriters elect
to purchase pursuant to Section 2 hereof being collectively called the
"Shares"). "Common Stock" refers to all shares of common stock, par value $0.01
per share, of ARAMARK Worldwide, and "Stock" refers to the capital stock of
ARAMARK Worldwide. On the date hereof, "Company" shall refer to ARAMARK
Corporation, a Delaware corporation ("ARAMARK"), and on each Time of Delivery
(as defined in Section 5(a)), "Company" shall refer to the surviving company
pursuant to the merger (the "Merger") between ARAMARK and ARAMARK Worldwide
described in the Registration Statement (as defined in Section 1(a)).
ARAMARK Worldwide and the Underwriters, in accordance with the requirements
of Rule 2720 ("Rule 2720") of the National Association of Securities Dealers,
Inc. (the "NASD") and subject to the terms and conditions stated herein, also
hereby confirm the engagement of the services of Xxxxxxx, Xxxxx & Co. (the
"Independent Underwriter") as a "qualified independent underwriter" within the
meaning of Section 2(l) of Rule 2720 in connection with the offering and sale of
the Shares.
1. Each of ARAMARK Worldwide and ARAMARK represents and warrants to, and
agrees with, each of the Underwriters and the Independent Underwriter that:
(a) A registration statement on Form S-1 (File No. 333-65226) (the
"Initial Registration Statement") in respect of the Shares, and as a part
thereof the form of prospectus relating to the distribution of the Shares
in an underwritten public offering, has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of the
other Underwriters, have been declared effective by the Commission in such
form; other than pre-effective amendments to the Initial Registration
Statement and a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or, to ARAMARK Worldwide's or ARAMARK's
knowledge, threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act is hereinafter called a "Preliminary Prospectus"; the various
parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such form
of final prospectus relating to the distribution of the Shares in an
underwritten public offering, in the form filed pursuant to Rule 424(b)
under the Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission;
(c) The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective conforms, and the
Prospectus and any amendments or supplements to the Prospectus when filed
with the Commission under Rule 424(b) under the Act will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and the Registration Statement
does not or will not, as of the applicable effective date as to the
Registration Statement and any post-effective amendment thereto 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
not misleading and as of the applicable filing date as to the Prospectus,
and any amendment or supplement thereto, the Prospectus does not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to ARAMARK Worldwide or ARAMARK by an
Underwriter through Xxxxxxx, Sachs & Co. or X.X. Xxxxxx Securities Inc. or
by the Independent Underwriter expressly for use therein;
(d) Neither the Company nor any of its subsidiaries listed on Schedule
II (the "Material Subsidiaries") has sustained since the date of the latest
audited financial statements included in the
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Prospectus any loss or interference with its business that is material to
the Company and its consolidated subsidiaries taken as a whole 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 any
amendment or supplement thereto, if applicable); and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been any material change in the capital stock
of the Company or long-term debt of the Company and its consolidated
subsidiaries taken as a whole or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the condition (financial or otherwise), management, stockholders'
equity or results of operations of the Company and its consolidated
subsidiaries taken as a whole (a "Material Adverse Change"), in each case
otherwise than as set forth or contemplated in the Prospectus (or any
amendment or supplement thereto, if applicable), provided, however, that
the representation made in this Section 1(d), to the extent it relates to
the portion of the representation that there is not any development
involving a prospective material adverse change, shall not be the basis of
any claim by the Underwriters against ARAMARK Worldwide or ARAMARK in the
event the Offering does not close, provided, further, that this proviso in
no way limits the Underwriters' rights and remedies under Section 10.
(e) The Company and the Material Subsidiaries have good and marketable
title to all real property owned by them, free and clear of all liens,
encumbrances and defects except such as (1) are described in the Prospectus
or in a document filed as an exhibit to the Registration Statement, (2) do
not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the
Company and the Material Subsidiaries or (3) would not have any material
change in the capital stock of the Company or long-term debt of the Company
and its consolidated subsidiaries taken as a whole or any material adverse
change in or affecting the condition (financial or otherwise), management,
stockholders' equity or results of operations of the Company and its
consolidated subsidiaries taken as a whole (a "Material Adverse Effect"),
otherwise than as set forth or contemplated in the Prospectus (or any
amendment or supplement thereto, if applicable); and any real property and
buildings held under lease by the Company and the Material Subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as (i) do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and the
Material Subsidiaries or (ii) would not have a Material Adverse Effect,
otherwise than as set forth or contemplated in the Prospectus (or any
amendment or supplement thereto, if applicable);
(f) Each of ARAMARK Worldwide and ARAMARK has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases real properties or maintains an office, except where the failure
to be so qualified or in good standing would not have a Material Adverse
Effect otherwise than as set forth or contemplated in the Prospectus (or
any amendment or supplement thereto, if applicable); and each Material
Subsidiary of the Company is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and upon completion of the Merger, all of the issued shares of
capital stock of the Company will be duly and validly authorized and
issued, will be fully paid and non-assessable and conform in all material
respects
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to the description of the Stock contained in the Prospectus; and all of the
issued shares of capital stock of each Material Subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares and except as set forth in the
Prospectus or in Schedule II hereto) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims;
(h) The unissued Shares to be issued and sold by ARAMARK Worldwide to
the Underwriters on the terms and subject to the conditions herein have
been duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued and
fully paid and non-assessable and will conform in all material respects to
the description of the Class B Stock contained in the Prospectus;
(i) The issue and sale of the Shares by ARAMARK Worldwide hereunder
and the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, (1) any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of the Material Subsidiaries is a party or by which the
Company or any of the Material Subsidiaries is bound or to which any of the
material property or assets of the Company or any of the Material
Subsidiaries is subject, (2) nor will such action result in any violation
of (i) the provisions of the Certificate of Incorporation or By-laws of the
Company or (ii) 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 Material Subsidiaries or any of their material properties, except in
the case of each of clause (1) and (2)(ii) for such conflicts, breaches,
violations or defaults that would not have a Material Adverse Effect
otherwise than as set forth or contemplated in the Prospectus (or any
amendment or supplement thereto, if applicable), and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the Act of
the Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters, registration under the Act of the Stock in connection with
the Merger, such consents, approvals, authorizations, registrations or
qualifications as may be required to commence or consummate the Tender
Offer (as defined below) and as set forth in Schedule IV hereto.
(j) Neither the Company nor any of the Material Subsidiaries is (i) in
violation of its Certificate of Incorporation or By-laws or (ii) in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its material properties may be bound, except in the
case of clause (ii) for any default which would not have a Material Adverse
Effect, otherwise than as set forth or contemplated in the Prospectus (or
any amendment or supplement thereto, if applicable);
(k) The statements set forth in the Prospectus under the caption
"Description of Capital Stock, Certificate of Incorporation and Bylaws",
insofar as they purport to constitute a summary of the terms of the Stock,
and under the captions "Certain Income Tax Consequences", "Transactions In
Our Old Common Stock" and "Description of Indebtedness", insofar as they
purport to describe the provisions
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of the laws and documents, as applicable, referred to therein, are accurate
and fairly present in all material respects the information that is
required to be described therein under the Act;
(l) Other than as set forth or contemplated in the Prospectus (or any
supplement or amendment thereto, if applicable), there are no legal or
governmental proceedings pending to which the Company or any of the
Material Subsidiaries is a party or of which any property of the Company or
any of the Material Subsidiaries is the subject which, if determined
adversely to the Company or any of the Material Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and, to
ARAMARK Worldwide's or ARAMARK's knowledge, no such proceedings are
threatened by governmental authorities or threatened by others;
(m) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
(n) Xxxxxx Xxxxxxxx LLP, who have certified certain consolidated
financial statements of ARAMARK Worldwide and ARAMARK, are independent
public accountants as required by the Act and the rules and regulations of
the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) ARAMARK
Worldwide agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from ARAMARK
Worldwide, at a purchase price per share of $........................, the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Shares as provided below,
ARAMARK Worldwide agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from ARAMARK
Worldwide, at the purchase price per share set forth in clause (a) of this
Section 2, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by a
fraction, the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
ARAMARK Worldwide hereby grants to the Underwriters the one time right to
purchase at their election up to ............ Optional Shares, at the purchase
price per share set forth in the paragraph above, for the purpose of covering
sales of shares in excess of the number of Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to
ARAMARK Worldwide, given within a period of 30 calendar days after the date of
this Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 5 hereof) or, unless you and ARAMARK Worldwide otherwise
agree in writing, earlier than two or later than ten Business Days after the
date of such notice. The Underwriters hereby represent and warrant to, and agree
with, ARAMARK Worldwide that the election to purchase Optional Shares shall only
be in respect of net syndicate short positions (as defined in Regulation M of
the Act).
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
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4. (a) ARAMARK Worldwide hereby confirms its engagement of the services
of the Independent Underwriter as, and the Independent Underwriter hereby
confirms its agreement with ARAMARK Worldwide to render services as, a
"qualified independent underwriter" within the meaning of Section 2(o) of Rule
2720 with respect to the offering and sale of the Shares.
(b) The Independent Underwriter hereby represents and warrants to, and
agrees with, ARAMARK Worldwide and the Underwriters that with respect to the
offering and sale of the Shares as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified independent
underwriter" within the meaning of Section 2(o) of Rule 2720;
(ii) The Independent Underwriter has participated in the preparation
of the Registration Statement and the Prospectus and has exercised the
usual standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an examination
of the Registration Statement, information regarding the earnings, assets,
capital structure and growth rate of the Company and other pertinent
financial and statistical data, (B) inquiries of and conferences with the
management of the Company and its counsel and independent public
accountants regarding the business and operations of the Company, (C)
consideration of the prospects for the industries in which the Company
competes, estimates of the business potential of the Company, assessments
of its management, the general condition of the securities markets, market
prices of the capital stock and debt securities of, and financial and
operating data concerning, companies believed by the Independent
Underwriter to be comparable to the Company or business segments of the
Company and the demand for securities of comparable companies similar to
the Shares, and (D) such other studies, analyses and investigations as the
Independent Underwriter has deemed appropriate, and assuming that the
offering and sale of the Shares is made as contemplated herein and in the
Prospectus, the Independent Underwriter recommends, as of the date of the
execution and delivery of this Agreement, that based on the Company's
future prospects and its industries in general, its sales, earnings and
other financial and operating information in recent periods and the price
to earnings ratio, market prices of securities and other financial and
operating information of companies engaged in activities similar to those
of the Company, the public offering price for each Share be not more than
$....... ;
(v) Subject to the provisions of Section 8 hereof, the Independent
Underwriter will furnish to the Underwriters at the Time of Delivery a
letter, dated the Time of Delivery, in form and substance satisfactory to
the Underwriters, to the effect of clauses (i) through (iv) above.
(c) The Independent Underwriter hereby agrees with ARAMARK Worldwide and
the Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified independent underwriter" within the meaning of
Section 2(l) of Rule 2720 with respect to the offering and sale of the Shares as
described in the Prospectus as so amended or supplemented that are substantially
the same as those services being rendered with respect to the offering and sale
of the Shares as described in the Prospectus (including those described in
subsection (b) above). The Independent Underwriter will have no responsibility
with respect to the sale of Shares in market-making transactions as described
therein.
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(d) ARAMARK Worldwide, the Underwriters and the Independent Underwriter
agree to comply in all material respects with all of the requirements of Rule
2720 applicable to them in connection with the offering and sale of the Shares.
ARAMARK Worldwide agrees to cooperate with the Underwriters and the Independent
Underwriter to enable the Underwriters to comply with Rule 2720 and the
Independent Underwriter to perform the services contemplated by this Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, ARAMARK Worldwide agrees to pay the Independent Underwriter $10,000
at the Time of Delivery.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. and X.X. Xxxxxx Securities Inc. may request upon
at least forty-eight hours' prior notice to ARAMARK Worldwide, shall be
delivered by or on behalf of ARAMARK Worldwide to Xxxxxxx, Sachs & Co. and X.X.
Xxxxxx Securities Inc., through the facilities of The Depository Trust Company
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Xxxxxxx, Sachs & Co.
and X.X. Xxxxxx Securities Inc. at least forty-eight hours in advance. ARAMARK
Worldwide will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC or
its designated custodian Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Designated Office"). The time and date of such delivery and
payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on ............., 200_ or such other time and date as Xxxxxxx, Xxxxx &
Co., X.X. Xxxxxx Securities Inc. and ARAMARK Worldwide may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on
the date specified by Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities Inc. in
the written notice given pursuant to Section 2 by Xxxxxxx, Xxxxx & Co. and X.X.
Xxxxxx Securities Inc. of the Underwriters' election to purchase such Optional
Shares, or such other time and date as Xxxxxxx, Xxxxx & Co., X.X. Xxxxxx
Securities Inc. and ARAMARK Worldwide may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including the cross receipt
for the Shares and any additional documents reasonably requested by the
Underwriters pursuant to Section 8(p) hereof, will be delivered at the offices
of Cravath, Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000 (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at 3:00 p.m., New York City time, on the Business Day next
preceding such Time of Delivery, or such other time or location as Xxxxxxx,
Sachs & Co., X.X. Xxxxxx Securities Inc. and ARAMARK Worldwide agree upon, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto.
6. ARAMARK Worldwide and ARAMARK agrees with each of the Underwriters and
with the Independent Underwriter:
(a) To prepare the Prospectus in a form reasonably approved by Xxxxxxx,
Sachs & Co. and X.X. Xxxxxx Securities Inc. and to file the 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
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no further amendment or any supplement to the Registration Statement or
Prospectus which shall be reasonably disapproved by you or the Independent
Underwriter (unless such amendment or supplement is required by law) promptly
after reasonable notice thereof; to advise you and the Independent Underwriter,
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 you and
the Independent Underwriter with copies thereof; to cause the Registration
Statement to remain in effect as to the Shares for so long as we may reasonably
deem necessary in order to complete the distribution of the Shares; to advise
you and the Independent Underwriter, promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order preventing
or suspending the effectiveness of the Registration Statement, of the suspension
of the qualification of the Shares for offering or sale in any jurisdiction if
ARAMARK Worldwide receives notice thereof, of the initiation or threatening of
any proceeding for any such purpose if ARAMARK Worldwide receives notice
thereof, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the effectiveness of the Registration Statement or suspending any
such qualification, promptly to use commercially reasonable best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such jurisdictions and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions as you may reasonably
designate for as long as may be necessary to complete the distribution of the
Shares, provided that in connection therewith ARAMARK Worldwide shall not be
required to qualify as a foreign corporation, to file a general consent to
service of process in any jurisdiction or take any action that would subject
ARAMARK Worldwide to taxation in any jurisdiction where it is not now so
subject;
(c) Prior to 10:00 A.M. New York City time, on the Business Day next
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters and the Independent Underwriter with copies of the Prospectus in
New York City in such quantities as you and the Independent Underwriter may
reasonably request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus
in connection with any offering or sale of the Shares by us and if at such time
any event shall have occurred as a result of which 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 shall be
necessary during such period to amend or supplement the Registration Statement
or the Prospectus, to notify you and the Independent Underwriter and to prepare
and furnish without charge to each Underwriter and to any dealer in securities
as many copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance; and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the Shares at any
time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act which will correct such
statement or omission or effect such compliance and to furnish, at the expense
of such Underwriters, to the Underwriters and to any dealer in securities as
many copies as you may from time to time reasonably request of such amended
Registration Statement or amended Prospectus or supplement;
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(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), a
consolidated earnings statement of ARAMARK Worldwide (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations thereunder
(including, at the option of ARAMARK Worldwide, Rule 158);
(e) For a period of 180 days after the date of this Agreement, without the
prior written consent of Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities Inc.,
to not, and to not take any action to enable or recognize any attempt by its
directors and executive officers and all its existing or subsequent
stockholders, directly or indirectly, to offer to sell, contract to sell or sell
or otherwise dispose of, or announce the offering of any shares of Class A-1
common stock, Class A-2 common stock, Class A-3 common stock, Class B-1 common
stock, Class B-2 common stock or Class B-3 common stock (collectively,
"Applicable Common Stock") or securities convertible into or exchangeable or
exercisable for shares of Applicable Common Stock, except for (i) offers to
sell, contracts to sell, sales or other disposal of, or announcement of the
offer of up to 1,000,000 shares of Applicable Common Stock or securities
convertible into or exchangeable for up to 1,000,000 shares of Applicable Common
Stock held by specified charitable organizations, including foundations,
schools, colleges, universities, charitable remainder trusts and charitable lead
trusts, after a period of 90 days after the date of this Agreement, (ii)
transfers by Xx. Xxxxxxxx of up to 1,500,000 shares to private or public
foundations or charities that have indicated they do not presently intend to
dispose of and have no distribution obligations that would require a
distribution of such shares for a period of 180 days after the date of this
Agreement; (iii) transfers to ARAMARK Worldwide or any of its subsidiaries; (iv)
issuances by ARAMARK Worldwide of shares of Applicable Common Stock, or
securities convertible into or exchangeable or exercisable for shares of
Applicable Common Stock, provided that the aggregate number of such shares of
Applicable Common Stock, together with any shares of unrestricted Class B Stock
referred to in Section 6(f)(i), does not exceed 15% of the shares of Common
Stock then outstanding in connection with one or more acquisitions of third
party shares or assets (including without limitation by way of merger or
consolidation) where the recipient agrees (or such shares by their terms
provide) that the recipient will not, directly or indirectly, offer to sell,
contract to sell, sell or otherwise dispose of, or announce the offering of any
such shares or securities convertible into or exchangeable for such shares for
at least the later of 90 days after the date of issuance of such shares or for a
period of 180 days after the date of this Agreement; (v) transfers upon the
death of an employee in order to pay any estate taxes and expenses on a date as
close as practicable to the tax payment date; (vi) issuances and distributions
of and exercises (including stock for stock and stock for taxes exercises) for
shares of Applicable Common Stock or securities convertible into or exchangeable
for shares of Stock in connection with the benefit plans described in the
Prospectus, which in each case shall be issued in or be exercisable for as
nearly as practicable equal amounts of Class A-1 common stock, Class A-2 common
stock and Class A-3 common stock or Class B-1 common stock, Class B-2 common
stock and Class B-3 common stock and the filing of the related registration
statements on Form S-8; (vii) transfers to and among any spouse, children,
grandchildren, parents, siblings, cousins, nieces, nephews, sons-in-law and
daughters-in-law of holders of Applicable Common Stock and entities (including
trusts, partnerships and limited liability companies) established for estate
planning or educational purposes, subject to the transfer restrictions of the
shares of Applicable Common Stock that are transferred and subject to any person
that is not a resident in the household of the transferee signing a document in
the form of Annex III hereof; (viii) bona fide pledges to ARAMARK Worldwide, a
commercial bank or savings and loan institution and any other lending or
financial institution as security for indebtedness of the holder of the shares
of Applicable Common Stock being pledged, provided such pledgee shall be bound
by the applicable transfer restrictions; (ix) transfers to charitable
organizations, including foundations, primary schools, high schools, colleges,
universities, charitable remainder trusts, charitable lead trusts and any
charitable organizations which are described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as
9
amended, subject to the transfer restriction of the shares of Applicable Common
Stock that are transferred; (x) with the prior written consent of Xxxxxxx, Sachs
& Co. or X.X. Xxxxxx Securities Inc., transfers, or actions taken to enable or
recognize such transfers, pursuant to a voting, tender or like agreement or
arrangement related to a business combination approved by the board of
directors; and (xi) the exchange or conversion of (x) shares of Class A-1 common
stock for shares of Class B-1 common stock, (y) shares of Class A-2 common stock
for shares of Class B-2 common stock and (z) shares of Class A-3 common stock
for shares of Class B-3 common stock ((i) through (xi) collectively, the
"Permitted Transfers").
(f) For a period of 180 days after the date of this Agreement, without the
prior written consent of Xxxxxxx, Sachs & Co. and X.X. Xxxxxx Securities, Inc.,
not to, directly or indirectly, offer to sell, contract to sell, sell or
otherwise dispose of, or announce the offering of, any shares of unrestricted
Class B Stock of ARAMARK Worldwide or securities convertible into or
exchangeable or exercisable for shares of unrestricted Class B Stock of ARAMARK
Worldwide, except for (i) issuances by ARAMARK Worldwide of shares of
unrestricted Class B Stock or securities convertible into or exchangeable or
exercisable for shares of unrestricted Class B Stock, provided that in such case
the number of such shares of unrestricted Class B Stock, together with any
shares of Applicable Common Stock referred to in Section 6(e)(iv) does not
exceed 15% of the shares of Common Stock then outstanding in connection with one
or more acquisitions of third party shares or assets (including, without
limitation, by way of merger or consolidation) where the recipient agrees (or
such shares by their terms provide) that the recipient will not, directly or
indirectly, offer to sell, contract to sell, sell or otherwise dispose of, or
announce the offering of any such shares or securities convertible or
exchangeable for such shares for at least the later of 90 days after the date of
issuance of such shares or for a period of 180 days after the date of this
Agreement; (ii) issuances and distributions of and exercises (including stock
for stock and stock for taxes exercises) for shares of unrestricted Class B
Stock or securities convertible into or exchangeable for shares of unrestricted
Class B Stock in connection with the benefit plans described in the Prospectus
and the filing of the related registration statements on Form S-8; and (iii)
with the prior written consent of Xxxxxxx, Sachs & Co. or X.X. Xxxxxx Securities
Inc., transfers, or actions taken to enable or recognize such transfers,
pursuant to a voting, tender or like agreement or arrangement related to a
business combination approved by the board of directors;
(g) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds", including with respect to the limitations on
repurchases of Stock, although the parties hereto agree that the commencement
and completion of the Stock Buyback (as described in the Registration Statement)
is at the sole election of the Company;
(h) To use its best efforts to list, subject to notice of issuance, the
Shares on the New York Stock Exchange (the "Exchange");
(j) If ARAMARK Worldwide elects to rely upon Rule 462(b), ARAMARK
Worldwide shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and ARAMARK Worldwide shall at the time of filing either pay to
the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act;
(k) To effect the Merger and conduct the tender offer (the "Tender Offer")
in the manner set forth in the Prospectus and the related proxy statement,
including the limitations on the percentage of Shares that may be purchased in
the Tender Offer and the percentage of the gross proceeds from the offering that
may be used in the Tender Offer, subject (x) in the case of the Merger, to the
conditions set forth in the proxy
10
statement/prospectus included in ARAMARK Worldwide's Registration Statement on
Form S-4 (File No. 333-65228) and to the conditions set forth in the merger
agreement included as an exhibit to such registration statement and (y) to the
Tender Offer to be commenced and completed at the sole discretion of the
Company; and
(l) For 180 days from the date of this Agreement, (1) not to release any
transfer restrictions on shares of Applicable Common Stock other than as
contemplated in the Certificate of Incorporation substantially in the form filed
as an exhibit to the Registration Statement (the "Certificate of Incorporation")
without the prior written consent of both Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx
Securities Inc.; (2) not to amend Article Fifth, Sections 3, 6, 7, 8, 10, 11 and
15 of the Certificate of Incorporation; (3) to use commercially reasonable
efforts to cause all transfer agents to block any attempted transfers in
violation of the Certificate of Incorporation; (4) to use commercially
reasonable efforts to cause The Depository Trust Company to keep a notation
about the transfer restrictions on shares of Applicable Common Stock; (5) to
issue stock certificates only with transfer restriction legends in the form of
Schedule IV for any shares of Applicable Common Stock; and (6) to maintain and
use commercially reasonable efforts to enforce the corporate policy set forth in
Annex IV hereto.
7. Each of ARAMARK Worldwide and ARAMARK covenants and agrees with the
several Underwriters and the Independent Underwriter that, unless otherwise
agreed, ARAMARK Worldwide will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of ARAMARK Worldwide's and ARAMARK's counsel
and accountants in connection with the registration of the Shares under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters, the Independent Underwriter and dealers; (ii) the
cost of printing or producing any Agreement among Underwriters, this Agreement,
the Blue Sky Memorandum, if any, closing documents (including compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Shares; (iii) all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws as
provided in Section 6(b) hereof, including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey not to exceed $15,000; (iv) all fees and
expenses in connection with listing the Shares on the Exchange; (v) the filing
fees incident to, and the reasonable fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(vi) the cost of preparing stock certificates; (vii) the cost and charges of any
transfer agent or registrar; and (viii) all other costs and expenses incurred by
ARAMARK Worldwide or ARAMARK incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections
10 and 13 hereof, the Underwriters will pay all of their own out of pocket costs
and expenses, including transportation (other than transportation provided by
ARAMARK's aircraft or by aircraft chartered for use by ARAMARK) and living
expenses of their representatives in connection with the roadshow, the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
8. The respective obligations of the Underwriters and the Independent
Underwriter hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of such Time of Delivery, true and correct, the condition that ARAMARK
Worldwide and ARAMARK shall have performed all of their respective obligations
hereunder theretofore to be performed, the condition (in the case of the
11
Underwriters) that the Independent Underwriter shall have furnished to the
Underwriters the letter referred to in clause (v) of Section 4(b) hereof and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 6(a) hereof;
if ARAMARK Worldwide has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have been filed by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement; and 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;
(b) Cravath, Swaine & Xxxxx, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions (a draft of each such opinion
is attached as Annex II(a) hereto), dated such Time of Delivery, as well as such
other related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for ARAMARK Worldwide and ARAMARK,
shall have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(b) hereto), dated such Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect that:
(i) ARAMARK Worldwide has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to conduct its business as
described in the Prospectus;
(ii) All of the issued shares of common stock of ARAMARK Worldwide
(including the Shares being delivered at such Time of Delivery) have been
duly authorized and all outstanding shares of ARAMARK Worldwide's common
stock have been and, upon payment and delivery in accordance with this
Agreement, the Shares will be validly issued, fully paid and nonassessable;
(iii) The statements made in the Prospectus under the caption
"Description of Capital Stock, Certificate of Incorporation and Bylaws" and
"Certain Income Tax Consequences", insofar as they purport to constitute
summaries of the terms of ARAMARK Worldwide's common stock (including the
Shares), and tax matters, constitute accurate and complete summaries of the
terms of such common stock and tax matters in all material respects;
(iv) Each Material Subsidiary incorporated in New York or Delaware is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, and each such subsidiary has full corporate
power and authority to conduct its business as described in the
Registration Statement. All of the issued shares of capital stock of each
Material Subsidiary incorporated in New York or Delaware have been duly and
validly authorized and issued, are fully paid and nonassessable and (except
for director's qualifying shares and except as otherwise set forth in the
Prospectus), based solely on an examination of each such subsidiary's stock
ledger and minute books and an examination of the share certificates, if
any, all such shares are owned of record by ARAMARK Worldwide and/or a
subsidiary of ARAMARK Worldwide, free of any adverse claims (within the
meaning of the Uniform Commercial Code as in effect in the State of New
York);
12
(v) This Agreement has been duly authorized, executed and delivered
by ARAMARK Worldwide and ARAMARK;
(vi) The issue and sale of the Shares being delivered at such Time
of Delivery by ARAMARK Worldwide and the compliance by ARAMARK Worldwide
and ARAMARK with all of the provisions of this Agreement will not breach or
result in a default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument identified on Annex B hereto,
nor will such action violate the Certificate of Incorporation or By-laws of
ARAMARK Worldwide or any federal or New York statute or the Delaware
General Corporation Law or any rule or regulation that has been issued
pursuant to any federal or New York statute or the Delaware General
Corporation Law or any order, known to such counsel issued pursuant to any
federal or New York statute or the Delaware General Corporation Law by any
court or governmental agency or body having jurisdiction over ARAMARK
Worldwide or any of its subsidiaries or any of their properties;
(vii) No consent, approval, authorization, order, registration or
qualification of or with any federal or New York governmental agency or
body or any Delaware governmental agency or body acting pursuant to the
Delaware General Corporation Law or, to our knowledge, any federal or New
York court or any Delaware court acting pursuant to the Delaware General
Corporation Law is required for the issue and sale of the Shares by ARAMARK
Worldwide and the compliance by ARAMARK Worldwide and ARAMARK with all of
the provisions of this Agreement, except for the registration under the Act
and the Exchange Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(viii) ARAMARK Worldwide is not an "investment company", as such term
is defined in the Investment Company Act;
(ix) To such counsel's knowledge, there are no statutes or pending
or threatened legal or governmental proceedings to which ARAMARK Worldwide,
ARAMARK or any of the Material Subsidiaries is a party, required to be
described in the Prospectus which are not described as required, or any
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
(x) To our knowledge, ARAMARK Worldwide is not in violation of its
Certificate of Incorporation or By-laws; and
(xi) The Registration Statement, as of its effective date, and the
Prospectus, as of _______, 200_ and the First Time of Delivery, complied as
to form in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder, except that
in each case they express no opinion with respect to the financial
statements or other financial data contained in the Registration Statement
or the Prospectus and they have no reason to believe that the Registration
Statement, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading
or that the Prospectus as of ______, 200_ and the First Time of Delivery
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
13
except that in each case they express no belief with respect to the
financial statements or other financial data contained in the Registration
Statement or the Prospectus.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States.
(d) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Xxxxxx Xxxxxxxx LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance reasonably satisfactory to you, to the
effect set forth in Annex I hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time of
Delivery is attached as Annex I(b) hereto);
(e) (i) Neither the Company nor its consolidated subsidiaries, taken as a
whole, 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 which would have a Material Adverse Change otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any material
change in the capital stock of the Company or long-term debt of the Company and
its consolidated subsidiaries, taken as a whole, or any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), management, stockholders' equity or results of
operations of the Company and its consolidated subsidiaries taken as a whole,
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 judgment of
Xxxxxxx, Sachs & Co. and X.X. Xxxxxx Securities Inc. so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
(f) On or after the date hereof (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) under the Act, 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 securities;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; (iv) the outbreak of new hostilities or escalation of existing
hostilities involving the United States or the declaration by the United States
of a national emergency or war or the occurrence of any other calamity or
crisis; or (v) the occurrence of an adverse change in the existing financial,
political or economic conditions in or affecting the United States, if the
effect of any such event specified in clause (iv) or (v) in the judgment of
Xxxxxxx, Sachs & Co. and X.X. Xxxxxx Securities Inc. makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Prospectus;
14
(h) The Shares to be sold at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the Exchange;
(i) The Company shall have caused its directors, executive officers and
stockholders that own 5% or more of the Stock (other than the 401(k) Plans) to
agree with the Underwriters to a lock-up agreement substantially in the form
attached as Schedule III;
(j) The Amended and Restated Stockholders' Agreement dated as of December
14, 1994 shall have been terminated;
(k) The Employment Agreement dated _____ between ARAMARK and Mr. Xxxxxx
Xxxxxxxx shall have been amended in a manner consistent with the Prospectus;
(l) The Registration Rights Agreement between the Company and Mr. Xxxxxx
Xxxxxxxx shall be in effect;
(m) The Merger shall have occurred;
(n) The Company shall have complied with the provisions of Section 6(c)
hereof with respect to the furnishing of prospectuses on the Business Day next
succeeding the date of this Agreement;
(o) The Xxxxxxxx Family Foundation [and ________] shall each have
delivered a letter substantially to the effect that, although such entity is
free to sell the 1,500,000 shares of Stock given to it by Mr. Xxxxxx Xxxxxxxx,
it has no present intention to dispose of and no distribution obligation that
would require a distribution of such Stock for a period of 180 days from the
date of this Agreement and it does not have existing funding requirements that
would require any such sale; and
(p) The Company shall have furnished or caused to be furnished to you at
such Time of Delivery a certificate of the Chief Financial Officer of the
Company reasonably satisfactory to you as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (e) of this Section and as to such other matters as you may
reasonably request.
9. The Independent Underwriter hereby consents to the references to it as
set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 6(a) hereof.
10. (a) Each of ARAMARK Worldwide and ARAMARK will jointly and severally
indemnify and hold harmless each Underwriter and the Independent Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or the Independent Underwriter, as the case may be, may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter or the Independent Underwriter, as the case may be,
for any legal or other expenses reasonably incurred by such Underwriter or the
Independent Underwriter, as the case may be, in connection
15
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that ARAMARK Worldwide and ARAMARK shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information furnished to ARAMARK
Worldwide by any Underwriter through Xxxxxxx, Sachs & Co. or X.X. Xxxxxx
Securities Inc. or the Independent Underwriter expressly for use therein or
constitutes a reference to the Independent Underwriter consented to by it
pursuant to Section 9 hereof.
(b) Each Underwriter will indemnify and hold harmless each of ARAMARK
Worldwide and ARAMARK and the Independent Underwriter, as the case may be,
against any losses, claims, damages or liabilities to which ARAMARK Worldwide,
ARAMARK and the Independent Underwriter, as the case may be, may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein 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 any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to ARAMARK Worldwide or ARAMARK by such Underwriter through Xxxxxxx,
Sachs & Co. or X.X. Xxxxxx Securities Inc. expressly for use therein; and will
reimburse each of ARAMARK Worldwide and ARAMARK and the Independent Underwriter,
as the case may be, for any legal or other expenses reasonably incurred by
ARAMARK Worldwide, ARAMARK and the Independent Underwriter, as the case may be,
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) The Independent Underwriter will indemnify and hold harmless each of
ARAMARK Worldwide and ARAMARK and their respective officers and directors and
each Underwriter against any losses, claims, damages or liabilities to which
each of ARAMARK Worldwide and ARAMARK or such Underwriter, as the case may be,
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein 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 any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Independent Underwriter expressly
for use therein or constitutes a reference to the Independent Underwriter
consented to by it pursuant to Section 9 hereof; and will reimburse each of
ARAMARK Worldwide, ARAMARK or each Underwriter, as the case may be, for any
legal or other expenses reasonably incurred by each of ARAMARK Worldwide,
ARAMARK or each Underwriter, as the case may be, in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the
16
commencement thereof; the omission so to notify the indemnifying party shall
relieve it from any liability which it may have to any indemnified party under
subsection (a), (b) and (c) above, but such omission shall not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under such subsections. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party. In addition, the indemnifying party shall
not be liable for any settlement of an action or claim for monetary damages
which an indemnified party may effect without the consent of the indemnifying
party, which consent shall not be unreasonably withheld.
(e) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by ARAMARK Worldwide and
ARAMARK on the one hand and the Underwriters on the other hand from the offering
of the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of each party to this agreement in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by ARAMARK Worldwide
and ARAMARK on the one hand and the Underwriters and the Independent Underwriter
on the other hand shall be deemed to be in the same proportion as the total net
proceeds from the underwritten public offering of the Shares purchased under
this Agreement (before deducting expenses) received by ARAMARK
17
Worldwide bear to the total underwriting discount and commissions payable to the
Underwriters as set forth in the table on the cover page of the Prospectus and
the fee payable to the Independent Underwriter pursuant to the first sentence of
Section 4(e) hereof, respectively, bear to the sum of the total proceeds from
the sale of the Shares (before deducting expenses) in the underwritten public
offering and the fee payable to the Independent Underwriter pursuant to the
first sentence of Section 4(e) hereof. The relative fault 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 ARAMARK Worldwide and ARAMARK on the one hand
or the Underwriters and the Independent Underwriter on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. ARAMARK Worldwide, ARAMARK, the
Underwriters and the Independent Underwriter agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters and the Independent Underwriter
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e) shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter nor the Independent Underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were offered
to the public, and the Independent Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by the Underwriters and distributed to the public were
offered to the public, exceeds the amount of any damages which such Underwriter
or the Independent Underwriter, as the case may be, have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. 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. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of ARAMARK Worldwide and ARAMARK under this Section 10
shall be in addition to any liability which ARAMARK Worldwide and ARAMARK may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter or the Independent Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 10 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director of ARAMARK Worldwide and ARAMARK
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of ARAMARK Worldwide) and to each
person, if any, who controls ARAMARK Worldwide, ARAMARK or the Independent
Underwriter within the meaning of the Act or the Exchange Act; and the
obligations of the Independent Underwriter under this Section 10 shall be in
addition to any liability which the Independent Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of ARAMARK Worldwide or ARAMARK (including any person who, with his or
her consent, is named in the Registration Statement as about to become a
director of ARAMARK Worldwide) and to each person, if any, who controls ARAMARK
Worldwide, ARAMARK or any Underwriters within the meaning of the Act or the
Exchange Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Shares, which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or
18
other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then ARAMARK Worldwide shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties reasonably satisfactory to you to purchase such Shares on such
terms. In the event that, within the respective prescribed periods, you notify
ARAMARK Worldwide that you have so arranged for the purchase of such Shares, or
ARAMARK Worldwide notifies you that it has so arranged for the purchase of such
Shares, you or ARAMARK Worldwide shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and ARAMARK Worldwide
agrees to file promptly any amendments to the Registration Statement or
supplements to the Prospectus which in your opinion may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and ARAMARK Worldwide
as provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then ARAMARK Worldwide
shall have the right to require each non-defaulting Underwriter to purchase the
number of Shares which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and ARAMARK Worldwide
as provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if ARAMARK Worldwide shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of ARAMARK
Worldwide to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or ARAMARK Worldwide,
except for the expenses to be borne by ARAMARK Worldwide and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 10 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of ARAMARK Worldwide and ARAMARK and the several
Underwriters and the Independent Underwriter, as 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 any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter,
the Independent Underwriter or any controlling person of any Underwriter, the
Independent Underwriter or ARAMARK Worldwide or ARAMARK, or any officer or
director or controlling person of ARAMARK Worldwide or ARAMARK, and shall
survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
ARAMARK Worldwide and ARAMARK shall not then be under any liability to any
Underwriter or the Independent Underwriter except as provided in Sections 7 and
10 hereof; but, if for any other reason, any Shares are not delivered by or on
behalf of the Company as provided herein, ARAMARK Worldwide will reimburse the
Underwriters through you for
19
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but ARAMARK Worldwide and ARAMARK shall then be under no further liability to
any Underwriter or the Independent Underwriter in respect of the Shares not so
delivered.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. or X.X. Xxxxxx Securities Inc.
on behalf of you as the representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Xxxxxxx, Xxxxx &
Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department, with a copy to X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department; if to the Independent
Underwriter shall be delivered or sent by mail, letter or facsimile transmission
to Xxxxxxx, Xxxxx & Co., 00 Xxx Xxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Registration Department; and if to ARAMARK Worldwide or ARAMARK shall
be delivered or sent by mail, telex or facsimile transmission to the address of
ARAMARK Worldwide set forth in the Registration Statement, Attention: Xxxx X.
Xxxxx, General Counsel; provided, however, that any notice to an Underwriter
pursuant to Section 10(d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Independent Underwriter, ARAMARK Worldwide, ARAMARK
and, to the extent provided in Sections 10 and 12 hereof, the officers and
directors, of ARAMARK Worldwide and ARAMARK and each person who controls (within
the meaning of the Act or the Exchange Act) ARAMARK Worldwide, ARAMARK, the
Independent Underwriter, any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the
term "Business Day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters and the Independent Underwriter, this
letter and such acceptance hereof shall constitute a binding agreement among
each of the Underwriters, the Independent Underwriter and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters (U.S. Version), the form of which shall be submitted to the Company
for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
ARAMARK Worldwide Corporation
By:
--------------------------------------
Name:
Title:
ARAMARK Corporation
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By:
-------------------------------------
Name :
Title:
X.X. Xxxxxx Securities Inc.
By:
-------------------------------------
Name :
Title:
On behalf of each of the Underwriters
21
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriters To be Purchased Exercised
------------ --------------- --------------------
Xxxxxxx, Xxxxx & Co.....................
X.X. Xxxxxx Securities Inc..............
Xxxxxx Xxxxxxx & Co. Incorporated.......
Xxxxxxx Xxxxx Barney Inc................
First Union Securities, Inc.............
