EXHIBIT 1.1
▇▇▇-▇▇▇▇ CORPORATION
0,000,000 SHARES*
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
----------------------
New York, New York
__________, 1997
SALOMON BROTHERS INC
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
As Representatives of the several Underwriters
c/o SALOMON BROTHERS INC
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇-▇▇▇▇ Corporation, a Delaware corporation (the "Company"), proposes to
sell to the underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, 0,000,000 shares
of Common Stock, $.01 par value ("Common Stock") of the Company (the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to 000,000 additional shares of Common
Stock (the "Option Securities"; the Option Securities, together with the
Underwritten Securities, being hereinafter called the "Securities"). For good
and valuable consideration and intending to be legally bound hereby, each of the
Company's direct, wholly-owned operating subsidiaries, Sun Services of America,
Inc., ▇▇▇-▇▇▇▇ Services, Inc. and ▇. ▇▇▇▇▇▇ Coin-Op-Laundry, Inc. (each an
"Operating Subsidiary" and collectively the "Operating Subsidiaries"), have
become parties to this Agreement.
1. Representations and Warranties. The Company and the Operating
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Subsidiaries, jointly and severally, represent and warrant to, and agree with,
each Underwriter as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (c) hereof. The following
representations, warranties and agreements shall be deemed to apply to each
Subsidiary (as defined in Section 14) of the Company, unless the context does
not permit.
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (File Number 333- ) on Form S-1,
including a
__________________
*Plus an option to purchase from ▇▇▇-▇▇▇▇ Corporation up to 000,000 additional
shares to cover over-allotments.
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related preliminary prospectus, for the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including the related preliminary prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission either (A)
prior to effectiveness of such registration statement, a further amendment to
such registration statement (including the form of final prospectus) or (B)
after effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b)(1) or (4). In the case of clause (B), the
Company has included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Prospectus with respect to the
Securities and the offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A Information,
together with all other such required information, with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. Upon your request, but not
without your agreement, the Company also will file a Rule 462(b) Registration
Statement in accordance with Rule 462(b). To the extent applicable, the copies
of the Registration Statement and each amendment thereto (including all exhibits
filed therewith), any Preliminary Prospectus or Prospectus (in each case, as
amended or supplemented) furnished to the Underwriters have been and will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to the Commission's Electronic Data Gathering, Analysis and
Retrieval System, except to the extent permitted by Regulation S-T.
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date and on any date on which shares sold in respect of the
Underwriters' over-allotment option are purchased, if such date is not the
Closing Date (the Closing Date and each such other date being referred to herein
as a "Settlement Date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act and
the rules thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on each Settlement Date, the Prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Prospectus (or
any supplement thereto).
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(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement, any post-effective amendment or amendments thereto
and any Rule 462(b) Registration Statement became or become effective.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Preliminary Prospectus" shall mean any
preliminary prospectus referred to in paragraph (a) above and any preliminary
prospectus included in the Registration Statement at the Effective Date that
omits Rule 430A Information. "Prospectus" shall mean the prospectus relating to
the Securities that is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the form
of final prospectus relating to the Securities included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including exhibits
and financial statements, as amended at the Execution Time (or, if not effective
at the Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as provided
by Rule 430A. "Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. "Rule
462(b) Registration Statement" shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering
covered by the initial registration statement (File Number 333- ). For
purposes of this Agreement, all references to the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement to any of
the foregoing, shall be deemed to include the respective copies thereof filed
with the Commission pursuant to ▇▇▇▇▇.
(d) The accounting firm(s) whose report(s) appear in the Prospectus
are independent certified public accountants as required by the Act and the
rules thereunder. The financial statements and schedules (including the related
notes) included in the Registration Statement, any Preliminary Prospectus or the
Prospectus present fairly, in all material respects, the financial condition,
results of operations and cash flows of the entities purported to be shown
thereby at the dates and for the periods indicated and have been prepared in
accordance with generally accepted accounting principles.
(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus, and is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the business conducted by it or the location of the properties
owned or leased by it makes such qualification necessary except where the
failure to so qualify or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole; and, except as
described in the Prospectus, the Company holds all material licenses,
certificates and permits from
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governmental authorities necessary for the conduct of its business as described
in the Prospectus.
(f) All of the outstanding shares of Common Stock have been, and the
Securities, upon issuance and delivery and payment therefor in the manner herein
described, will be, duly authorized, validly issued, fully paid and
nonassessable. Other than as described in the Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock pursuant
to the Company's corporate charter, by-laws or other governing documents or any
agreement or other instrument to which the Company is a party or by which it may
be bound. Neither the filing of the Registration Statement nor the offering or
sale of the Securities as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied and other than as
described in the Prospectus, for or relating to the registration of any shares
of Common Stock or other securities of the Company. The capitalization of the
Company as of __________ is as set forth in the Prospectus and the Common Stock
conforms to the description thereof contained in the Prospectus. All of the
outstanding shares of capital stock of each Subsidiary (as defined in Section
14) of the Company have been duly authorized and validly issued, are fully paid
and nonassessable and are owned directly or indirectly by the Company, free and
clear of any claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party.
(g) Except as described in or contemplated by the Registration Statement
and the Prospectus, there has not been any material adverse change in, or any
adverse development which materially affects, the condition (financial or
other), results of operations, business or prospects of the Company on a
consolidated basis from the date as of which information is given in the
Prospectus.
(h) The Company is not, and would not be with the giving of notice or lapse
of time or both, in violation of or in default under, nor will the execution or
delivery hereof or consummation of the transactions contemplated hereby result
in a violation of, or constitute a default under, the corporate charter, by-laws
or other governing documents of the Company, or any material agreement,
indenture or other instrument to which the Company is a party or by which it is
bound, or to which any of its properties is subject, nor will the performance by
the Company of its obligations hereunder violate any existing law, rule,
administrative regulation or decree of any court or any governmental agency or
body having jurisdiction over the Company or any of its properties, or result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company, which would be material to the Company and its
Subsidiaries taken as a whole. Except for permits and similar authorizations
required under the Act and the securities or "Blue Sky" laws of certain
jurisdictions and for such permits and authorizations as have been obtained, no
consent, approval, authorization or order of any U.S. court, governmental agency
or body or any financial institution is required in connection with the
consummation by the Company of the transactions contemplated by this Agreement.
(i) This Agreement has been duly authorized, executed and delivered by the
Company.
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(j) The Company owns, or has valid rights to use, all items of real and
personal property which are material to the business of the Company and its
Subsidiaries taken as a whole, free and clear of all liens, encumbrances and
claims which may materially interfere with the business, properties, financial
condition or results of operations of the Company on a consolidated basis.
(k) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company is a party or to which any property
of the Company is subject or which is pending or, to the knowledge of the
Company, contemplated against the Company that is required to be disclosed in
the Prospectus and that is not so disclosed.
(l) The Company is not in violation of any law, ordinance, governmental
rule or regulation or court decree to which it is subject, which violation could
have a material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company on a consolidated basis.
(m) The Company owns or possesses adequate licenses or other rights to use
all intellectual property rights, including patents, trademarks, service marks,
trade names, copyrights or know-how, necessary to conduct its business as
described or referred to in the Prospectus, and, except as disclosed in the
Prospectus, the Company has not received any notice of infringement of or
conflict with (and does not know of any such infringement of or conflict with)
rights or claims of others with respect to any patents, trademarks, service
marks, trade names, copyrights or know-how, that if the subject of an
unfavorable decision, ruling or finding, would result in a material adverse
effect upon the Company on a consolidated basis, and, except as disclosed in the
Prospectus, all products or processes referred to in the Prospectus and relating
to the business of the Company now conducted by it do not infringe upon or
conflict with any right or patent, or with any discovery, invention, product or
process which is the subject of any patent application known to the Company, in
a manner which would materially and adversely affect the Company on a
consolidated basis.
(n) Neither the Company nor any Subsidiary of the Company has taken and
none of such companies shall take, directly or indirectly, any action designed
to cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
shares of Common Stock to facilitate the sale or resale of the Securities.
(o) The Securities have been approved for listing on the Nasdaq National
Market, subject only to official notice of issuance.
2. Purchase and Sale.
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(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase
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price of $______ per share, the amount of the Underwritten Securities set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
000,000 shares of the Option Securities at the same purchase price per share as
the Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in
part at any time (but not more than once) on or before the 30th day after the
date of the Prospectus upon written or telegraphic notice by the Representatives
to the Company setting forth the number of shares of the Option Securities as to
which the several Underwriters are exercising the option and the Settlement
Date. Delivery of certificates for the shares of Option Securities by the
Company, and payment therefor to the Company, shall be made as provided in
Section 3 hereof. The number of shares of the Option Securities to be purchased
by each Underwriter shall be the same percentage of the total number of shares
of the Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
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Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the second Business Day prior to
the Closing Date) shall be made at 10:00 AM, Eastern time, on __________, 1997,
or such later date (not later than __________, 1997) as the Representatives
shall designate, which date and time may be postponed by agreement among the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the aggregate
purchase price thereof to or upon the order of the Company by certified or
official bank check or checks drawn on or by a New York Clearing House bank and
payable in same day funds or by wire transfer of New York Clearing House bank
same day funds. Delivery of the Underwritten Securities and the Option
Securities shall be made at such location as the Representatives shall
reasonably designate at least one Business Day in advance of the Closing Date
and payment for such Securities shall be made at the office of ▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP, Boston, Massachusetts. Certificates for the Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than two full Business Days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the Business Day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after the
second Business Day prior to the Closing Date, the Company will deliver (at the
expense of the Company) to the Representatives, at Seven World Trade Center, New
York, New York, on
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the date specified by the Representatives (which shall be within three Business
Days after exercise of said option), certificates for the Option Securities in
such names and denominations as the Representatives shall have requested against
payment of the purchase price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by a New York Clearing
House bank and payable in same day funds or by wire transfer of New York
Clearing House bank same day funds. If settlement for the Option Securities
occurs after the Closing Date, the Company will deliver to the Representatives
on the Settlement Date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
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Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
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(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement,
supplement to the Prospectus or any Rule 462(b) Registration Statement without
your prior consent. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or filing of
the Prospectus is otherwise required under Rule 424(b), the Company will cause
the Prospectus, properly completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. Upon your request, the Company will
cause the Rule 462(b) Registration Statement, completed in compliance with the
Act and the applicable rules and regulations thereunder, to be filed with the
Commission pursuant to Rule 462(b) and will provide evidence satisfactory to the
Representatives of such filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have become effective, (ii)
when the Prospectus, any supplement thereto or any Rule 462(b) Registration
Statement shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (iii) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission for any amendment of the
Registration Statement or any Rule 462(b) Registration Statement or supplement
to the Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the rules thereunder, the
Company promptly will (i) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance and (ii)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will furnish
or cause to be furnished to the Representatives copies of all reports on Form SR
required by Rule 463 under the Act. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay the fee of the National Association
of Securities Dealers, Inc., in connection with its review of the offering.
(f) The Company will not, for a period of 180 days following the date of
the Prospectus, without the prior written consent of Salomon Brothers Inc,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any other shares of Common Stock or any
securities convertible into, or exchangeable for, shares of Common Stock;
provided, however, that the Company may issue and sell Common Stock or grant
stock options pursuant to any stock option or stock option plan in effect at the
Execution Time in accordance with the terms thereof, and the Company may issue
Common Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time in accordance with the terms thereof.
In addition, the Company will not permit any stock option permitted to be
granted pursuant to the preceding sentence that is granted by it within 180 days
after the date hereof to be exercised prior to the expiration of the 180-day
period following the date of the Prospectus, without the prior written consent
of Salomon Brothers Inc.
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6. Conditions to the Obligations of the Underwriters. The obligations of
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the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any Settlement Date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM Eastern
time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM Eastern time on such date, or (ii)
12:00 Noon on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM Eastern time
on such date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, will
be filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have furnished to the Representatives the opinion of
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, counsel for the Company, dated the applicable
Settlement Date, to the effect that:
(i) the Company and each of its Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of the respective jurisdictions in which they are organized,
with the corporate power and authority to own their properties and conduct
their businesses as described in the Prospectus, and are duly qualified to
do business and in good standing in each jurisdiction in which they own or
lease real property;
(ii) the Company's authorized capital stock and outstanding
capital stock is as set forth in the Prospectus under the caption
"Description of Capital Stock"; the capital stock of the Company conforms
as to legal matters in all material respects to the description thereof
contained in the Prospectus under the caption "Description of Capital
Stock"; the outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the Securities
have been duly and validly authorized, and, when issued and delivered to
and paid for by the Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the Securities are duly authorized for listing,
subject to official notice of issuance, on the Nasdaq National Market; the
certificates for the Securities are in valid and sufficient form; there are
no preemptive or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any of the Securities pursuant
to the Company's corporate charter, by-laws, other governing documents, or
any agreement or other instrument known to such counsel to which the
Company or a Subsidiary thereof is a party or by which the Company or a
Subsidiary thereof may be bound or to which any of their respective
properties is subject; and, to such
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counsel's knowledge, neither the filing of the Registration Statement nor
the offering or sale of the Securities as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any shares
of Common Stock except such as have been waived or satisfied; and all of
the outstanding shares of capital stock of each Subsidiary of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable and are owned directly or indirectly by the Company free and
clear of any claim, lien, encumbrance or security interest known to such
counsel;
(iii) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
Subsidiary required to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus under the caption "Business--
Legal Proceedings," and there is no franchise, contract or other document
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit, which is not described or filed as required;
(iv) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or threatened
and the Registration Statement and the Prospectus (other than the financial
statements and schedules and other financial, statistical and accounting
information contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the rules thereunder;
(v) this Agreement has been duly authorized, executed and delivered by
the Company;
(vi) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated herein, except (a) such as have been obtained under the Act, (b)
such as may be required under the blue sky and state securities laws of any
jurisdiction applicable to the offering and sale of the Securities by the
Underwriters and such as may be required for the clearance of the underwriting
arrangements relating to such offering and sale with the NASD (as to which such
counsel need express no opinion), and (c) such other approvals (specified in
such opinion) as have been obtained; and
(vii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter or by-laws of
the Company or a Subsidiary or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or a Subsidiary is a
party or bound or any judgment, injunction, order or decree known to such
counsel to
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be applicable to the Company or a Subsidiary of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Company or a Subsidiary.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent accountants of the Company, representatives
of the Underwriters and representatives of counsel for the Underwriters, at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel need not pass upon, and need
not assume any responsibility for, the accuracy, completeness or fairness of any
statement contained in the Registration Statement or the Prospectus (except for
those statements referred to in the opinions expressed in the first two clauses
of subsection (ii) above) and has made no independent check or verification
thereof, such counsel shall state that on the basis of the foregoing, no facts
have come to such counsel's attention that has led such counsel to believe that
the Registration Statement, as of the date thereof, included any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its date or the date of such opinion, included or
includes any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that such
counsel need express no opinion or belief with respect to the financial
statements, financial statement schedules and other financial, accounting and
statistical data included therein.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Massachusetts, the United States or the General Corporation Law
of the State of Delaware, to the extent such counsel deems proper and as
specified in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (b) include any
supplements thereto.
(c) The Representatives shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP, counsel for the Underwriters, such opinion or opinions, dated
the applicable Settlement Date, with respect to the issuance and sale of the
Securities, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the applicable
Settlement Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any supplements
to the Prospectus and this Agreement and that:
-12-
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the applicable Settlement Date
with the same effect as if made on the applicable Settlement Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
applicable Settlement Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition (financial or other),
earnings, business or properties of the Company on a consolidated basis,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) At the Execution Time and at the applicable Settlement Date, Price
Waterhouse LLP shall have furnished to the Representatives a letter or letters,
dated respectively as of the Execution Time and as of the applicable Settlement
Date, in form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
applicable published rules and regulations thereunder and stating in effect
that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement and
the Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations;
(ii) they have read the minutes of the meetings of the
stockholders, directors and committees of the Board of Directors of the
Company and its Subsidiaries; have performed the procedures specified by
the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited combined balance sheet as of June 30, 1997,
the unaudited statements of operations, changes in stockholders' equity and
cash flows for the six months ended June 30, 1997 and June 30, 1996
included in the Registration Statement and the Prospectus; and have
inquired of certain officials of the Company who have responsibility for
financial and accounting matters whether such unaudited combined financial
statements comply as to form, in all material respects, with the applicable
accounting requirements of the Act and the related published rules and
regulations; and that nothing came to their attention as a result of the
foregoing procedures that caused them to believe that any material
modifications should be made to such unaudited combined financial
statements included in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting principles or
that such unaudited combined financial statements do not comply as to
-13-
form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations;
(iii) they have read the minutes of the meetings of the
stockholders, directors and committees of the Board of Directors of the
Company and its Subsidiaries; and have inquired of certain officials of the
Company who have responsibility for financial and accounting matters
whether, with respect to the period subsequent to June 30, 1997, there
were any changes, at a specified date not more than five Business Days
prior to the date of the letter, in the long-term debt, cash, cash
equivalents and temporary investments or capital stock of the Company or
decreases in the total stockholders' equity of the Company or decreases in
working capital of the Company, on a combined basis, as compared with the
amounts shown on the June 30, 1997 combined balance sheet included in the
Registration Statement and the Prospectus, or for the period from June 30,
1997, to such specified date there were any decreases, as compared with the
corresponding period in the preceding year, in revenues, operating income
or in total or per share amounts of net income of the Company on a combined
basis; and that nothing came to their attention that caused them to believe
that there was any such change, increase or decrease, except in all
instances for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Representatives;
(iv) they have read the information included in the Registration
Statement and the Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary Financial Information)
and Item 402 (Executive Compensation), and nothing has come to their
attention that caused them to believe that such information is not in
conformity with the applicable disclosure requirements of Regulation S-K;
(v) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth in the Registration Statement and the Prospectus
agrees with the accounting records of the Company, excluding any questions
of legal interpretation; and
(vi) they have read the unaudited pro forma [specify financial
statements] included in the Registration Statement and the Prospectus;
inquired of certain officials of the Company who have responsibility for
financial and accounting matters about the basis for their determination of
the pro forma adjustments and whether such pro forma financial statements
comply as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X under the Act; and proved the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in such pro forma financial statements; and that nothing
came to their attention as a result of such procedures that caused them to
believe that such unaudited pro forma financial statements do not comply as
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to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements (it being understood that such accountants
may state that had they performed additional procedures or had they made an
examination of such pro forma financial statements, other matter may have
come to their attention that would have been reported to you).
References to the Prospectus in this paragraph (e) include any supplement
thereto at the date of the letter.
The Representatives shall have also received from Price Waterhouse LLP a
letter stating that the Company's system of internal accounting controls taken
as a whole is sufficient to meet the broad objectives of internal accounting
control insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation to the
financial statements of the Company (sometimes referred to as a "No Material
Weakness Letter").
(f) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(g) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from each
officer and director of the Company and each holder of one percent (1%) or more
of any class of the outstanding capital stock of the Company addressed to the
Representatives, in which each such person agrees not to offer, sell or contract
to sell, or otherwise dispose of, directly or indirectly, or announce an
offering of, any shares of Common Stock beneficially owned by such person or any
securities convertible into, or exchangeable for, shares of Common Stock for a
period of 180 days following the Execution Time without the prior written
consent of Salomon Brothers Inc, other than shares of Common Stock disposed of
as bona fide gifts.
(h) Prior to the applicable Settlement Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
-15-
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the applicable Settlement Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, , counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, on the applicable
Settlement Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company and the Operating Subsidiaries will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and the Operating
--------------------------------
Subsidiaries, jointly and severally, agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Securities Exchange Act of 1934 (the "Exchange Act") against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement made by the Company or the Operating Subsidiaries in Section 1 hereof,
(ii) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof 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 (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the Securities or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company and the Operating Subsidiaries shall not be liable
under this clause (iii) to the extent that it is determined in a final judgment
by a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly or indirectly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct); and agrees to reimburse each such
-16-
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company and
the Operating Subsidiaries will 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
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein and (ii) with respect to
any untrue statement or omission of a material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person of such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstances
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (w) the Company had previously furnished
copies of the Prospectus to the Underwriters, (x) delivery of the Prospectus was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Preliminary Prospectus was
corrected in the Prospectus and (z) there was not sent or given to such person,
at or prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus. This indemnity agreement will be in addition
to any liability which the Company or the Operating Subsidiaries may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the
-17-
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. 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. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Operating Subsidiaries, on
the one hand, and the Underwriters on the other agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering of
the Securities; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Operating
Subsidiaries on the one hand and the Underwriters on the other shall contribute
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Operating Subsidiaries on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company and the Operating
Subsidiaries shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses), and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative fault
-18-
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company (or the Operating
Subsidiaries) or the Underwriters. The Company, the Operating Subsidiaries and
the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
Nasdaq National Market or trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or limited or
minimum prices shall have been established on either the New York Stock Exchange
or the Nasdaq National Market, (ii) a banking moratorium shall have been
declared either by Federal, New York State or Massachusetts authorities or
-19-
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or faxed and confirmed to them, care of Salomon Brothers Inc, at Seven
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention: Legal Department; or,
if sent to the Company, will be mailed, delivered or faxed and confirmed to it
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Definitions. For purposes of this Agreement, (a) "Business Day" means
-----------
any day on which the New York Stock Exchange is open for trading and (b)
"Subsidiary" and "Significant Subsidiary" have the meanings set forth in Rule
405 under the Act.
15. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Remainder of page intentionally left blank]
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Operating Subsidiaries and the several Underwriters.
Very truly yours,
▇▇▇-▇▇▇▇ Corporation
By:____________________________________
Name:
Title:
▇▇▇-▇▇▇▇ Services, Inc.
By:____________________________________
Name:
Title:
Sun Services of America, Inc.
By:____________________________________
Name:
Title:
▇. ▇▇▇▇▇▇ Coin-Op-Laundry, Inc.
By:____________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: Salomon Brothers Inc
By:__________________________
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
EXHIBIT A
▇▇▇-▇▇▇▇ Corporation
Public Offering of Common Stock
__________, 1997
Salomon Brothers Inc
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
As Representatives of the several Underwriters
c/o Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between ▇▇▇-▇▇▇▇
Corporation, a Delaware corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $.01 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned agrees not to offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce an offering
of, any shares of Common Stock beneficially owned by the undersigned or any
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of 180 days following the day on which the
Underwriting Agreement is executed without the prior written consent of Salomon
Brothers Inc, other than shares of Common Stock disposed of as bona fide gifts
(which shall remain subject to this Agreement).
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or major
shareholder]
[Name and address of officer, director or
major shareholder]
SCHEDULE I
Number of Shares of
Underwritten Securities
Underwriters To Be Purchased
------------ -----------------------
Salomon Brothers Inc..............................
▇▇▇▇▇ ▇▇▇▇▇▇ Inc..................................
TOTAL............................................. ========
