EXHIBIT 18
INVESTOR PURCHASE AGREEMENT
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THIS AGREEMENT is made as of January 31, 1995, between The Coinmach
Corporation, a Delaware corporation (the "Company"), Xxxxxx Financial, Inc.
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(the "Purchaser") and Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P. ("GTCR").
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The Company and the Purchaser desire to enter into an agreement pursuant
to which the Purchaser will purchase, and the Company will issue, 3,825 shares
of the Company's Class C Common Stock, par value $0.01 per share (the "Class C
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Common Stock"). Certain definitions are set forth in Section 5 of this
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Agreement.
Simultaneously with the execution of this Agreement, (i) each of Xxxxxxx
National Life Insurance Company ("Xxxxxxx") and Xxxxxxx National Life Insurance
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Company of Michigan ("Jackson Michigan" and, together with Jackson, the
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"Lenders") are entering into investor purchase agreements (the "Other Investor
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Purchase Agreements") substantially similar to this Agreement pursuant to which
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Xxxxxxx and Xxxxxxx Life will also acquire shares of the Company's Class C
Common Stock and (ii) each of the President and Fellows of Harvard
College ("Harvard"), MCS Capital, Inc. ("MCS"), MCS Capital Management, Inc.
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("MCS Management"), Xxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxxxx Xxxxx ("Xxxxx") and
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Xxxxxxx X. Xxxxxx ("Xxxxxx") are entering into investor purchase agreements
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substantially similar to this Agreement pursuant to which Harvard, MCS, MCS
Management, Xxxxxxx, Xxxxx and Xxxxxx will acquire shares of the Company's
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock").
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The Jackson, Jackson Michigan, Harvard, Chapman, Blatt, Xxxxxx, MCS Management
and MCS investor purchase agreements are referred to herein as the "Other
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Investor Purchase Agreements" and along with this Agreement as the "Investor
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Purchase Agreements."
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The execution and delivery of this Agreement by the Company and Purchaser
is a condition to the purchase of 72,516 shares of Class A Common Stock by GTCR
and certain shares of the Company's Class B Common Stock, par value $0.01 per
share (the "Class B Common Stock") by certain members of the Company's
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management pursuant to purchase agreements between the Company and each of such
Persons dated as of the date hereof (along with the Investor Purchase
Agreements, the "Purchase Agreements"). The
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Class A Common Stock, Class B Common Stock, Class C Common Stock,
and the Company's Class D Common Stock, par value $0.01 per share
(the "Class D Common Stock"), are hereinafter collectively referred to as
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the " Common Stock". Certain provisions of this Agreement are intended for
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the benefit of, and will be enforceable by, GTCR.
The parties hereto agree as follows:
Section 1. Authorization and Closing
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1A. Authorization of the Stock. The Company shall
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authorize the issuance to Purchaser of 3,825 shares of Class C Common Stock
having the rights set forth in Exhibit A attached hereto.
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1B. Purchase and Sale of Investor Stock. At the Closing (as
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defined in Xxxxxxx 0X xxxxx), the Company shall sell to the Purchaser and,
subject to the terms and conditions set forth herein, the Purchaser shall
purchase from the Company 3,825 shares of the Class C Common at a price of $0.01
per share.
1C. The Closing. The closing of the purchase and sale of the Stock
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(the "Closing") shall take place at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx
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Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 at 10:00 a.m. on January 31, 1995, or at
such other place or on such other date as may be mutually agreeable to the
Company and the Purchaser. At the Closing, the Company shall deliver to the
Purchaser stock certificates evidencing the Class C Common to be purchased by
the Purchaser, registered in the Purchaser's name, upon payment of the
purchase price thereof by a cashier's or certified check, or by wire transfer
of immediately available funds to such account as designated by the Company in
the amount of $38.25.
Section 2. Representations and Warranties.
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2A. Representations and Warranties of Purchaser. In connection with the
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issuance of the Investor Stock hereunder, Purchaser represents and warrants to
the Company that, in each case, as of the Closing:
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(i) The Class C Common Stock to be acquired by Purchaser pursuant to
this Agreement will be acquired for Purchaser's own account and not with a view
to, or intention of, distribution thereof in violation of the Securities Act,
or any applicable state securities laws, and such Class C Common Stock will not
be disposed of in contravention of the Securities Act or any applicable state
securities laws.
(ii) Purchaser is able to bear the economic risk of its investment in
such Class C Common Stock for an indefinite period of time, and Purchaser
acknowledges that such Class C Common Stock has not been registered under the
Securities Act and, therefore, cannot be sold unless subsequently registered
under the Securities Act or an exemption from such registration is available.
(iii) Purchaser has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of such Class C
Common Stock and has had full access to such other information concerning the
Company as it has requested.
(iv) This Agreement, the Stockholders Agreement and the Registration
Agreement constitute legal, valid and binding obligations of Purchaser,
enforceable in accordance with their terms, and the execution, delivery and
performance of this Agreement, the Stockholders Agreement and the Registration
Agreement by Purchaser does not and will not conflict with, violate or cause a
breach of any agreement, contract or instrument to which Purchaser is a party or
any law, rule, regulation, judgment, order or decree to which Purchaser is
subject.
2B. Representations and Warranties of the Company. In connection with the
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issuance of the Investor Stock hereunder, the Company represents to Purchaser
that, in each case, as of the Closing:
(i) Organization and Corporate Power. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of Delaware. The
Company has all requisite corporate power and authority to carry out the
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transactions contemplated by this Agreement, the Purchase Agreements, the
Stockholders Agreement and the Registration Agreement (the "Investment
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Agreements"). The copies of the Company's Certificate of Incorporation and
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Bylaws which have been furnished to Purchaser's counsel reflect all amendments
made thereto at any time prior to the date of this Agreement and are correct and
complete.
(ii) Capital Stock and Related Matters.
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(a) As of the Closing and immediately thereafter, the authorized capital
stock of the Company shall consist of 10,000 shares which will be designated as
Preferred Stock and 108,150 shares of Common Stock, of which 77,350 shares
shall be designated as Class A Common Stock, 15,500 shares shall be designated
Class B Common Stock, 7650 shares shall be designated as Class C Common Stock
and 7650 shares shall be designated as Class D Common Stock. As of the Closing,
the Company shall not have outstanding any stock or securities convertible or
exchangeable for any shares of its capital stock or containing any profit
participation features, nor shall it have outstanding any rights or options to
subscribe for or to purchase its capital stock or any stock or securities
convertible into or exchangeable for its capital stock or any stock appreciation
rights or phantom stock plans other than pursuant to and as contemplated by this
Agreement, the Purchase Agreements, the Stockholders Agreement and the Company's
Certificate of Incorporation. As of the Closing, the Company shall not be
subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its capital stock or any warrants, options or
other rights to acquire its capital stock, except pursuant to this Agreement,
the Stockholders Agreement and the Purchase Agreements. As of the Closing, all
of the outstanding shares of the Company's capital stock shall be validly
issued, fully paid and nonassessable.
(b) There are no statutory or contractual stockholders preemptive rights or
rights of refusal with respect to the issuance of the Common Stock hereunder,
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except as provided herein and in the Stockholders Agreement. The Company
has not violated any applicable federal or state securities laws in
connection with the offer, sale or issuance of any of its capital stock,
and the offer, sale and issuance of the Common Stock pursuant to this
Agreement do not and will not require registration under the Securities
Act.
(iii) Conduct of Business; Liabilities. Other than in the course of the
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negotiation, execution and delivery of this Agreement, the Purchase
Agreements and the other agreements contemplated hereby and thereby, prior
to the Closing, the Company has not (i) conducted any business, (ii)
incurred any expenses, obligations or liabilities (whether accrued,
absolute, contingent, unliquidated or otherwise, whether or not known to
the Company and whether due or to become due and regardless of when
asserted), (iii) owned any assets, or (iv) entered into any contracts or
agreements.
Section 3. Restrictions on Transfer.
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3A. Transfer of Investor Stock.
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(i) Subject to the restrictions set forth in the remainder of this
Section 3, Investor Stock is transferable only pursuant to (a) a Public
Offering registered under the Securities Act, (b) Rule 144 or Rule 144A of
the Securities and Exchange Commission (or any similar rule or rules then
in force) if such rule or rules are available or (c) subject to the
conditions specified in Section 3A (ii) below, any other legally available
means of transfer.
(ii) In connection with the transfer of any Investor Stock (other than a
transfer described in Section 3A (i)(a) or (b) above), the holder thereof
shall deliver written notice to the Company describing in reasonable detail
the transfer or proposed transfer, together with an opinion of counsel which
(to the Company's reasonable satisfaction) is knowledgeable in securities
law matters to the effect that such transfer of Investor Stock may be
effected without registration of such Investor Stock under the Securities
Act. In addition, if the holder of the Investor Stock delivers to the
Company an
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opinion of counsel that no subsequent transfer of such Investor Stock shall
require registration under the Securities Act, the Company shall promptly upon
such contemplated transfer deliver new certificates for such Investor Stock
which do not bear the Securities Act legend set forth in Section 4A hereof. If
the Company is not required to deliver new certificates for such Investor Stock
not bearing such legend, the holder thereof shall not transfer the same until
the prospective transferee has confirmed to the Company in writing its agreement
to be bound by the conditions contained in this Section and Section 4A hereof.
(iii) Upon the request of the Purchaser, the Company shall promptly supply to
the Purchaser or its prospective transferees all information regarding the
Company required to be delivered in connection with a transfer pursuant to Rule
144A of the Securities and Exchange Commission.
(iv) Any transfer or attempted transfer of any Investor Stock in violation of
any provision of this Agreement shall be void, and the Company shall not record
such transfer on its books or treat any purported transferee of such Investor
Stock as the owner of such Investor Stock for any purpose.
3B. Sale Notice Prior to making any Transfer of Investor Stock, Purchaser will
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give written notice (the "Sale Notice") to the Company and GTCR. The Sale Notice
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will disclose in reasonable detail the number of shares to be transferred and
the terms and conditions of the proposed Transfer and, if known, the identity of
the prospective transferee(s). Purchaser will not consummate any such Transfer
until 60 days after the Sale Notice has been given to the Company and to GTCR,
unless the parties to the Transfer have been fully determined pursuant to this
Section 3B and Section 3C prior to the expiration of such 60-day period. (The
date of the first to occur of such events is referred to herein as the
"Authorization Date.")
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3C. First Refusal Rights. The Company may elect to purchase all (but not
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less than all) of the shares of Investor Stock to be transferred upon the same
terms and conditions as those set forth in the Sale Notice by delivering a
written notice of such election to Purchaser and GTCR within 30 days after the
Sale Notice
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has been given to the Company. If the Company has not elected to purchase all
of the Investor Stock to be transferred, GTCR may elect to purchase all (but not
less than all) of the Investor Stock to be transferred upon the same terms and
conditions as those set forth in the Sale Notice by giving written notice of
such election to Purchaser within 60 days after the Sale Notice has been given
to GTCR. If neither the Company nor GTCR elect to purchase all of the shares of
Investor Stock specified in the Sale Notice, Purchaser may transfer the shares
of Investor Stock specified in the Sale Notice at a price and on terms no more
favorable to the transferee(s) thereof than specified in the Sale Notice during
the 180-day period immediately following the Authorization Date. Any shares of
Investor Stock not transferred within such 180-day period will be subject to the
provisions of this Section 3C upon subsequent transfer.
3D. Transfers in Connection with Transfers of Term Loan C. The provisions of
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Sections 3B and 3C shall not apply to any Transfer of Investor Stock by
Purchaser to the transferee of a portion of the Term Loan C then held by
Purchaser in an amount not to exceed the product of (i) the number of shares of
Investor Stock purchased by Purchaser hereunder multiplied by (ii) the quotient
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of (a) the amount of Term Loan C transferred by Purchaser to such transferee
divided by (b) the amount of Term Loan C held by Purchaser on the date thereof;
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provided that such transferee shall agree to be bound by all of the terms and
provisions of this Agreement and the Stockholders Agreement as if it were a
party hereto and thereto.
For purposes of this Section 3D; "Term Loan C" means Term Loan C as defined in
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the Credit Agreement dated as of the date hereof among Coinmach Industries Co.,
L.P. and Super Laundry Equipment Co., L.P., as borrower, Xxxxxx Financial, Inc.
as agent and lender, and Xxxxxxx Life Insurance Company and Xxxxxxx Life
Insurance Company of Michigan, as lenders, as amended from time to time.
Section 4. Additional Restrictions on Transfer of Investor Stock.
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4A. Legend. The Purchaser hereby represents that it is acquiring the Investor
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Stock purchased hereunder or acquired
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pursuant hereto for its own account with the present intention of holding such
securities for purposes of investment, and that it has no intention of selling
such securities in a public distribution in violation of the federal securities
laws or any applicable state securities laws; provided that nothing contained
herein shall prevent the Purchaser and subsequent holders of Investor Stock from
transferring such securities in compliance with the provisions of Section 4
hereof. Each certificate for Investor Stock shall be imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED AS OF
JANUARY 31, 1995, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
l933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION
FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND
CERTAIN OTHER AGREEMENTS SET FORTH IN AN INVESTOR PURCHASE AGREEMENT
BETWEEN THE COMPANY AND CERTAIN INVESTORS, DATED AS OF JANUARY 31, 1995. A
COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE ISSUER'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.
4B. Opinion of Counsel. No holder of Investor Stock may sell, transfer or
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dispose of any Investor Stock (except pursuant to an effective registration
statement under the Securities Act) without first delivering to the Company an
opinion of counsel (reasonably acceptable in form and substance to the Company)
that (i) neither registration nor qualification under the Securities Act and
applicable state securities laws is required in connection with such transfer or
(ii) all such applicable registration and qualification requirements have been
satisfied.
Section 5 Definitions.
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"Investor Stock" means (i) the Class C Common issued hereunder and (ii)
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any Common Stock issued or issuable with respect
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to the Common Stock referred to in clause (i) above by way of stock dividends or
stock splits or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular shares of
Investor Stock, such shares shall cease to be Investor Stock when they have been
(a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (b) distributed to
the public through a broker, dealer or market maker pursuant to Rule 144 under
the Securities Act (or any similar rule then in force). Whenever any particular
securities cease to be Investor Stock, the holder thereof shall be entitled to
receive from the Company, without expense, new securities of like tenor not
bearing a Securities Act legend of the character set forth in Section 4A.
"Person" means an individual, a partnership, a corporation, an association, a
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joint stock company, a trust, a joint venture, an unincorporated organization
and a governmental entity or any department, agency or political subdivision
thereof.
"Public Offering" means the sale in an underwritten public offering registered
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under the Securities Act (other than on Form S-8 or a similar or successor form)
of shares of the Company's Common Stock approved by the Board.
"Public Sale" means any sale pursuant to a registered Public Offering under
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the Securities Act or any sale to the public pursuant to Rule 144 promulgated
under the Securities Act effected through a broker, dealer or market maker.
"Registration Agreement" means the Registration Agreement dated as of the date
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hereof among the Company, the Investors (as defined in that Agreement) and
Purchaser.
"Securities Act" means the Securities Act of 1933, as amended, or any similar
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federal law then in force.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
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amended, or any similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or agency
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succeeding to the functions thereof.
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"Stockholders Agreement" means the Stockholders Agreement dated as
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of the date hereof among the Company, the Investors (as defined in that
Agreement) and Purchaser.
"Transfer" means to sell, transfer, assign, pledge or otherwise
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dispose of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law) other than pursuant to a Public Sale or
Sale of the Company.
Section 6. Miscellaneous
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6A. Notices. Any notice provided for in this Agreement must be in
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writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to each person at the address set forth below:
If to the Company:
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The Coinmach Corporation
00 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: President
With a Copy (which will constitute notice to the
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Company) to:
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Xxxxxxxx Kill Xxxxx & Xxxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Purchaser:
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Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Portfolio Manager
Portfolio Organization
Corporate Finance Group
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With a copy (which will not constitute notice to Purchaser) to:
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Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
If to GTCR:
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Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
with a copy (which will not constitute notice to GTCR) to:
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Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
6B. Transfers in violation of Agreement. Any Transfer or attempted
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Transfer of any Investor Stock in violation of any provision of this Agreement
shall be void, and the Company shall not record such Transfer on its books or
treat any purported transferee of such Investor Stock as the owner of such stock
for any purpose.
6C. Severability. Whenever possible, each provision of this Agreement
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will 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 invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction,
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such invalidity, illegality or unenforceability will not affect any other
provision or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
6D. Complete Agreement. This Agreement, those documents expressly referred to
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herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior
summaries of terms and conditions, understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
6E. Counterparts. This Agreement may be executed in separate counterparts,
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each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
6F. Successors and Assigns. Except as otherwise provided herein, this
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Agreement shall bind Purchaser and the Company and their respective successors
and permitted assigns and inure to the benefit of and be enforceable by
Purchaser, the Company, GTCR and their respective successors and permitted
assigns (including in each case subsequent holders of Purchaser's Stock);
provided that Purchaser may not assign any of its rights under any provision of
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this Agreement except as part of a Transfer of Investor Stock in accordance with
Section 3.
6G. Choice of Law. The corporate law of the State of Delaware will govern all
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questions concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity and interpretation of
this Agreement and the exhibits hereto will be governed by and construed in
accordance with the internal laws of the State of Illinois, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Illinois or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Illinois.
6H. Remedies. Each holder of Investor Stock shall have all rights and remedies
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set forth in this Agreement and the
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Certificate of Incorporation and all rights and remedies which such holders have
been granted at any time under any other agreement or contract and all of the
rights which such holders have under any law. Any Person having any rights under
any provision of this Agreement shall be entitled to enforce such rights
specifically (without posting a bond or other security), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
6I. Amendment and Waiver. Except as otherwise expressly provided herein, the
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provisions of this Agreement may be amended or modified only by written
agreement of the Company, Purchaser and GTCR. No other course of dealing between
the parties or third party beneficiaries hereof or any delay in exercising any
rights hereunder shall operate as a waiver of any rights of any such holders.
6J. Survival of Representations and Warranties. All representations and
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warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by Purchaser or on its behalf or by the Company or on its
behalf.
6K. Business Days. If any time period for giving notice or taking action
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hereunder expires on a day which is a Saturday, Sunday or holiday in the state
in which the Company's chief executive office is located, the time period shall
be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
6L. Descriptive Headings; Interpretation. The descriptive headings of this
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Agreement are inserted for convenience only and do not constitute a Section of
this Agreement. The use of the word "including" in this Agreement shall be by
way of example rather than by limitation.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
THE COINMACH CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: CEO
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GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GTCR IV, L.P.
Its: General Partner
By: Golder, Thoma, Cressey,
Rauner, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxxx
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Its: Principal
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxx
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Its: Assistant Vice President
