EXHIBIT 10.33
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of March 14, 1997,
between Coinmach Laundry Corporation, a Delaware corporation (the "Company"),
and Atlanta Washer & Dryer Leasing, Inc., a Georgia corporation ("AWDL").
Unless otherwise provided in this Agreement, capitalized terms used herein shall
have the meanings set forth in paragraph 6 hereof.
The parties hereto agree as follows:
1. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any of
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its Common Stock under the Securities Act in a secondary registration on behalf
of holders of the Common Stock and the registration form to be used may be used
for the registration of Registrable Securities (a "Piggyback Registration"), the
Company shall give prompt written notice to all holders of AWDL Registrable
Securities of its intention to effect such a registration and shall include in
such registration all AWDL Registrable Securities with respect to which the
Company has received written requests for inclusion therein within 10 days after
the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of AWDL
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Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Piggyback Registrations. If the Company (in the case of a
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registered offering not involving an underwriting) or the managing underwriter
or underwriters (in the case of a registered underwritten offering) shall
reasonably determine that the number or kind of securities requested to be
included in a Piggyback Registration exceeds the number which can be sold in
such offering without adversely affecting the Company or the marketability or
success of the offering, the Company shall include in such registration (y)
first, the securities requested to be included therein by the holder or holders
initially requesting such registration (in the case of a registration undertaken
by the Company at the demand of one or more holders of Common Stock), and (z)
second, to the extent not included in the immediately preceding clause (y), the
GTCR Registrable Securities, Executive Registrable Securities, Investor
Registrable Securities, AWDL Registrable Securities and any other securities of
the Company requested to be included in such registration, in each instance,
which in the opinion of the Company or such underwriters, as the case may be,
can be sold without adversely affecting the Company or the marketability or
success of the offering, pro rata among the holders thereof on the basis of the
number of shares requested to be included in such registration by each such
holder.
(d) Underwriting; Selection of Underwriters. In the event of a registered
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public offering involving an underwriting with respect to which the Company has
given notice pursuant to paragraph 1(a) above, the right of any holder of AWDL
Registrable Securities to registration pursuant to this Agreement shall be
conditioned upon such holder's participation in such underwriting and the
inclusion of AWDL Registrable Securities in the underwriting to the extent
provided herein. All holders of AWDL Registrable Securities, if proposing to
distribute their securities through such underwriting, shall (together with the
Company and the other holders of Registrable Securities distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter or underwriters selected for such
underwriting. The selection of investment banker(s) and manager(s) in
connection with any Piggyback Registration that is an underwritten offering must
be approved by the holders of a majority of the GTCR Registrable Securities,
Executive Registrable Securities and Investor Registrable Securities included in
such Piggyback Registration.
(e) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities, and if such
previous registration has not been withdrawn or abandoned, the Company shall not
file or cause to be effected any other registration of any of its equity
securities or securities convertible or exchangeable into or exercisable for its
equity securities under the Securities Act (except on Form S-8 or any successor
form), whether on its own behalf or at the request of any holder or holders of
such securities, until a period of at least 180 days has elapsed from the
effective date of such previous registration.
2. Holdback Agreements.
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(a) Each holder of Registrable Securities shall not effect any public sale
or distribution (including sales pursuant to Rule 144) of equity securities of
the Company, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the 180-day period
beginning on the effective date of any underwritten Piggyback Registration
(except as part of such underwritten registration), unless the underwriter or
underwriters managing the registered public offering otherwise agree.
(b) The Company shall not effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriter or
underwriters managing the registered public offering otherwise agree.
3. Registration Expenses.
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(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, fees and disbursements of custodians,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions)
and other Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne by the Company, and the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on the NASD automated quotation system.
(b) In connection with each Piggyback Registration, each holder of AWDL
Registrable Securities included in such registration shall be responsible for
the reasonable fees and disbursements of its counsel.
4. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of AWDL Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder for use therein
or by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of AWDL
Registrable Securities.
(b) In connection with any registration statement in which a holder of AWDL
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice shall not
impair any Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company
also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
5. Participation in Underwritten Registrations. No Person may participate
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in any registration hereunder which is underwritten unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements, (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements, and (iii) completes
and executes any other documents reasonably required.
6. Definitions.
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"AWDL Registrable Securities" means, irrespective of which Person actually
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holds such securities, (i) any shares of Common Stock acquired as of the date
hereof by AWDL, (ii) any shares of Common Stock acquired hereafter by AWDL, and
(iii) any capital stock of the Company issued or issuable with respect to the
securities referred to in clauses (i) or (ii) above by way of a stock dividend,
stock split, conversion or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular AWDL Registrable Securities, such securities will cease to be AWDL
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 (or any similar rule
then in force) under the Securities Act. For purposes of this Agreement, a
Person will be deemed to be a holder of AWDL Registrable Securities whenever
such Person has the right to acquire such AWDL Registrable Securities (upon
conversion, or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
"Common Stock" means the Class A Common Stock, par value $.01 per share,
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and Class B Common Stock, par value $.01 per share, of the Company and any other
class of the common stock of the Company hereafter outstanding.
"Executive" means any of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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and MCS Capital, Inc.
"Executive Registrable Securities" means, irrespective of which Person
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actually holds such securities, (i) any shares of Common Stock acquired as of
the date hereof by the Executives (ii) any shares of Common Stock acquired
hereafter by the Executives or any executive employee of the Company or its
Subsidiaries who becomes a party to this Agreement, and (iii) any capital stock
of the Company issued or issuable with respect to the securities referred to in
clauses (i) or (ii) above by way of a stock dividend, stock split, conversion or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Executive
Registrable Securities, such securities will cease to be Executive Registrable
Securities when they have been distributed to the public pursuant to an offering
registered under the Securities Act or sold to the public through a broker,
dealer or market maker in compliance with Rule 144 (or any similar rule then in
force) under the Securities Act. For purposes of this Agreement, a Person will
be deemed to be a holder of Executive Registrable Securities whenever such
Person has the right to acquire such Executive Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
"GTCR" means Golder, Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund IV, L.P., a Delaware
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limited partnership.
"GTCR Registrable Securities" means, irrespective of which Person actually
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holds such securities, (i) any shares of Common Stock acquired as of or prior to
the date hereof by GTCR, (ii) any shares of Common Stock acquired hereafter by
GTCR, and (iii) any capital stock of the Company issued or issuable with respect
to the securities referred to in clauses (i) or (ii) above by way of a stock
dividend, stock split, conversion or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular GTCR Registrable Securities, such securities will cease to be GTCR
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 (or any similar rule
then in force) under the Securities Act. For purposes of this Agreement, a
Person will be deemed to be a holder of GTCR Registrable Securities whenever
such Person has the right to acquire such GTCR Registrable Securities (upon
conversion, or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
"Investor" means ▇▇▇▇▇▇ Financial, Inc., ▇▇▇▇▇▇▇ National Life Insurance
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Company, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and President and Fellows of
Harvard College.
"Investor Registrable Securities" means, irrespective of which Person
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actually holds such securities, (i) any shares of Common Stock acquired as of
the date hereof by any Investor, (ii) any shares of Common Stock acquired
hereafter by any Investor, and (iii) any capital stock of the Company issued or
issuable with respect to the securities referred to in clauses (i) or (ii) above
by way of a stock dividend, stock split, conversion or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Investor Registrable Securities, such
securities will cease to be Investor Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker in
compliance with Rule 144 (or any similar rule then in force) under the
Securities Act. For purposes of this Agreement, a Person will be deemed to be a
holder of Investor Registrable Securities whenever such Person has the right to
acquire such Investor Registrable Securities (upon conversion, or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"Person" means an individual, a partnership, a joint venture, a
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corporation, a trust, a limited liability company, an unincorporated
organization or a government or any department or agency thereof.
"Registrable Securities" means, collectively, the Executive Registrable
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Securities, the GTCR Registrable Securities, the Investor Registrable Securities
and the AWDL Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended.
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"Securities Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
8. Miscellaneous.
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(a) Remedies. Any Person having rights under any provision of this
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Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(b) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the AWDL Registrable
Securities; provided, however, that no such amendment or waiver shall materially
and adversely affect the rights hereunder of any of the parties hereto without
the prior written approval of such party.
(c) Successors and Assigns. All covenants and agreements in this Agreement
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by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of AWDL Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of AWDL Registrable Securities.
(d) Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(e) Counterparts. This Agreement may be executed simultaneously in two or
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more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
(f) Descriptive Headings. The descriptive headings of this Agreement are
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inserted for convenience only and do not constitute a part of this Agreement.
(g) Governing Law. All issues and questions concerning the construction,
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validity, interpretation and enforcement of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the
State of Delaware, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
(h) Notices. All notices, demands or other communications to be given or
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delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to each holder of AWDL Registrable Securities at
the address indicated by the Company's records and to the Company at the address
indicated below:
If to the Company, to:
Coinmach Laundry Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
with a copy, which will not constitute notice to the Company, to:
▇▇▇▇▇▇▇▇ Kill & Olick, P.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to AWDL, to:
Mr. R. ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & Bird, LLP
One Atlantic Center
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇ III, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
COINMACH LAUNDRY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
ATLANTA WASHER & DRYER
LEASING, INC.
By: /s/ R. ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: R. ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
