Exhibit 1.1
DEBT SECURITIES
FORM OF UNDERWRITING AGREEMENT
_______________, _____
[Names and Addresses of
Representatives]
Dear Sirs:
G&K Services, Inc., a Minnesota corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule II hereto (the "Underwriters"), the principal
amount set forth in Schedule II hereto of its debt securities identified on
Schedule I hereto (the "Securities"), to be issued under an indenture, dated as
of _________________, _____, as amended or supplemented from time to time (the
"Indenture") between the Company and _____________, as Trustee (the "Trustee"),
less the principal amount of Securities covered by Delayed Delivery Contracts
(as defined in Section 3 hereof), if any, as provided in Section 3 hereof and as
may be specified in Schedule II hereto (any Securities to be covered by Delayed
Delivery Contracts being herein sometimes referred to as "Contract Securities"
and the Securities to be purchased by the Underwriters (after giving effect to
the deduction, if any, for Contract Securities) being herein sometimes referred
to as "Underwriters' Securities"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives" as used herein shall each be deemed
to refer to such firm or firms.
1. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333- _______),
including a prospectus for use in connection with the Securities under the
Securities and Exchange Act of 1933, as amended (the "Act") in respect of the
Securities, has been filed with the Securities and Exchange Commission (the
"Commission") in the form heretofore delivered to you and, excluding exhibits to
such registration statement, but including all documents incorporated by
reference therein, to you for each of the other Underwriters; such registration
statement, in such form, has been declared effective by the Commission; no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission; such prospectus included for use in connection with the
Securities under the Act meets the requirements of the Act and the rules and
regulations thereunder for use of such prospectus in connection with the
Securities; and a supplemented prospectus relating to the Securities, in the
form heretofore delivered to you, is now proposed to
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be filed with the Commission pursuant to Rule 424 under the Act (any such
prospectus, accompanied by a preliminary prospectus supplement relating to the
Securities, being hereinafter called a "Preliminary Prospectus"; such
registration statement, including all exhibits thereto and the documents
incorporated therein by reference as amended at the time each such registration
statement became effective, being hereinafter called the "Registration
Statement"; and such prospectus, accompanied by a definitive prospectus
supplement relating to the Securities being hereinafter called the "Prospectus";
and any reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be, and any reference to
any amendment or supplement to any Preliminary Prospectus or the Prospectus,
shall be deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference);
(b) No order preventing or suspending the use of any Preliminary
Prospectus or Prospectus has been issued by the Commission and each Preliminary
Prospectus or Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and any further
documents so filed and incorporated by reference, when they are filed with the
Commission, will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
you expressly for use therein;
(d) The Registration Statement, as of the applicable effective date,
conformed and the Prospectus and any amendments or supplements to the
Registration Statement or the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and did not and will not, as
of the applicable effective date of the Registration Statement and any amendment
thereto and as of the applicable filing date of the Prospectus or any supplement
thereto, contain an untrue statement of a material
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fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through you expressly for use therein;
(e) Since the respective dates as of which information is given in the
Registration Statement and in the Prospectus, there have not been, and prior to
the Time of Delivery (as defined in Section 4 hereof) there will not be, any
material adverse change in or affecting the general affairs, financial position
or results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus;
(f) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(g) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Minnesota, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
each of [_____________________] (the "Significant Subsidiaries") has been duly
organized and is a validly existing corporation under the laws of the state of
its incorporation, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole;
(h) The Company has an authorized capitalization as set forth or
incorporated in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of each wholly
owned subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable, and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims;
(i) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, and, in the case of any Contract
Securities, pursuant to Delayed Delivery Contracts (as defined in Section 3
hereof) with respect to such Contract Securities, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
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binding obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized, executed and delivered and
constitutes a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Securities and the
Indenture will conform to the description thereof in the Prospectus; and in the
event any of the Securities are purchased pursuant to Delayed Delivery
Contracts, each of such Delayed Delivery Contracts has been duly authorized by
the Company and, when executed and delivered by the Company and the purchaser
named therein, will constitute a valid and legally binding agreement of the
Company enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
(j) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, each of the
Delayed Delivery Contracts, if any, and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the Company's Articles of Incorporation or By-laws or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Securities or the consummation of the other
transactions contemplated by this Agreement or any Delayed Delivery Contract or
the Indenture, except such as have been obtained, or will have been obtained at
the Time of Delivery, under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and/or distribution of the Securities by the Underwriters;
(k) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, other than as set forth in
the Prospectus and other than litigation or governmental proceedings incident to
the kind of business conducted by the Company and its subsidiaries which, if
determined adversely to the Company and its subsidiaries, would not individually
or in the aggregate have a material adverse effect on the financial position,
shareholders' investment or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others; and
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(l) ______________________, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price set forth in Schedule I hereto the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II
hereto, which principal amount shall be subject to reduction pursuant to section
3 hereof.
3. Upon the authorization by the Company of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus. The Company may
specify in Schedule I hereto that the Underwriters are authorized to solicit
offers to purchase Securities from the Company pursuant to delayed delivery
contracts (herein called "Delayed Delivery Contracts"), substantially in the
form of Schedule III attached hereto, but with such changes therein as the
Underwriters and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Underwriters, for their respective
accounts, at the time specified in Section 4 hereof, such commission, if any, as
may be set forth in Schedule I. Delayed Delivery Contracts, if any, are to be
with the investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any responsibility
in respect of the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the Underwriters have been
attributed to such Underwriter, provided, that if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in each
case, that proportion of Contract Securities which the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II hereto
bears to the total principal amount of the Securities set forth in Schedule II
hereto (rounded as the Underwriters may determine). The total principal amount
of Underwriters' Securities to be purchased by all the Underwriters hereunder
shall be the total principal amount of Securities set forth in Schedule II
hereto less the principal amount of the Contract Securities. The Company will
deliver to the Underwriters not later than 3:30 p.m., New York City time, on the
third business day preceding the Time of Delivery (or such other time and date
as the Underwriters and the Company may agree upon in writing) a written notice
setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter
hereunder shall be delivered by or on behalf of the Company to you for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor in same-day funds, at the office of
___________________, ___________________________________________,
____________________________________, at ____ a.m., ___________________ time, on
[Closing Date], or at such other time and date as you and the Company may agree
upon in writing, such time and date being herein called the "Time of Delivery".
The Underwriters' Securities will be delivered by the Company to you in the form
of a Global Security,
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representing all of the Securities, which will be deposited by you on behalf of
the Underwriters, with The Depository Trust Company, or its nominee, for credit
to the respective accounts of the Underwriters.
Concurrently with the delivery of any Contract Securities to the
purchasers thereof pursuant to Delayed Delivery Contracts, the Company will
deliver to the Underwriters for their respective accounts a check payable to the
order of [lead Underwriter] in the amount of any compensation payable by the
Company to the Underwriters in respect of any Delayed Delivery Contracts as
provided in Section 3 hereof and in Schedule I hereto.
5. The Company agrees with each of the Underwriters:
(a) To make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof; to advise you
promptly of any such amendment or supplement after the Time of Delivery and
furnish you with copies thereof and to file promptly all reports and definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has become effective or
any supplement to the Prospectus or any amended Prospectus has been filed, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or of the Prospectus or for additional
information; and in the event of the issuance of any stop order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution,
provided, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as you may from time to time reasonably request, and if the delivery
of a prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus or to file under the Exchange
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Act any document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify you and
upon your request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Securities at any time nine
months or more after the time of issue of the Prospectus, upon your request but
at the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act; and
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the
Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
(except as otherwise expressly provided in Section 5(c) hereof) amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing this Agreement, the
Indenture, any Delayed Delivery Contracts, and the Blue Sky and Legal Investment
Memoranda; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) the cost of preparing the
Securities; (vi) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee and any such
agent in connection with the Indenture and the Securities; and (vii) all of the
other costs and expenses incident to the performance of its obligations
hereunder and under any Delayed Delivery Contracts which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by
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the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) ________________, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to the validity of the Indenture, the Securities, the Delayed Delivery
Contracts, if any, the Registration Statement, the Prospectus, and other related
matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(c) _______________________, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Minnesota, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries taken as a whole;
(ii) Each Significant Subsidiary has been duly organized and
is validly existing as a corporation under the laws of the state of
its incorporation, and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of the
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(iii) All the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable, and all outstanding
shares of such capital stock are owned directly or indirectly by the
Company free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
(iv) To the best of such counsel's knowledge there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, other than as set forth in
the Prospectus and other than litigation or governmental proceedings
which individually and in the aggregate are not material to the
Company and its subsidiaries; and to the best of such counsel's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
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(v) This Agreement has been duly authorized, executed and
delivered by the Company; and in the event any of the Securities are
to be purchased pursuant to Delayed Delivery Contracts, each of the
Delayed Delivery Contracts has been duly authorized, executed and
delivered by the Company and, assuming such contract has been duly
executed and delivered by the purchaser named therein, constitutes a
valid and legally binding agreement of the Company enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and any Delayed Delivery Contracts conform to the
description thereof in the Prospectus;
(vi) The Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Contract Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Indenture and the
Delayed Delivery Contracts, if any, will constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Securities and the Indenture conform to the
descriptions thereof in the Prospectus;
(vii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(viii) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
Indenture, each of the Delayed Delivery Contracts and this Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Company's Articles of Incorporation or
By-laws or any statute or any order, rule or regulation applicable to
the Company and known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the issue and
sale of the Securities or the consummation of the other transactions
contemplated by this Agreement or the Indenture or any of the Delayed
Delivery Contracts, except such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications
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as may be required under state securities or Blue Sky laws in
connection with the purchase and/or distribution of the Securities by
the Underwriters;
(ix) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they were filed
with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and such counsel have no reason to believe
that any of such documents, when they were so filed, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion);
(x) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to the Time of Delivery (other than the financial statements or
financial schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel have no reason to believe that
the Registration Statement contained as of its effective date or that
the Prospectus contained as of the date of the supplement comprising a
part thereof, or that either the Registration Statement or the
Prospectus contains as of the Time of Delivery (or that any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery contained as of its date or contains as of the Time of
Delivery) an untrue statement of material fact or that the
Registration Statement omitted as of such effective date, or that the
Prospectus omits as of the Time of Delivery to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and such counsel does not know of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated
by reference into the Prospectus or required to be described in the
Registration Statement or in the Prospectus which are not filed or
incorporated by reference or described as required; and
(xi) The Company has an authorized capitalization as set
forth in the Prospectus;
(e) You shall have received on the date of this Agreement a letter
dated such date and also at the Time of Delivery, in each case in form and
substance satisfactory to you, from ___________________________, independent
public accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
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respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, other than as set forth or contemplated in the Prospectus; and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any decrease in the capital stock or any
increase in the long-term debt (excluding capital leases) of the Company or any
of its subsidiaries or a change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
shareholders' investment or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus;
(g) On or after the date of this Agreement, there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; or (ii) an
outbreak or escalation of international military hostilities involving the
United States or the declaration by the United States of a national emergency or
war, the effect of any such event specified in this clause (ii) in your judgment
makes it impractical or inadvisable to proceed with the public offering or the
delivery of the Underwriters' Securities on the terms and in the manner
contemplated by the Prospectus; and
(h) On or after the date of this Agreement (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities or preferred
stock by any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities the effect of which, in any event specified in
clause (i) or (ii), in your judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus; and
(i) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of the Time of Delivery and as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to the
Time of Delivery and the Company also shall have furnished to you a certificate
of officers of the Company satisfactory to you as to the matters set forth in
subsections (a), (f) and (h) of this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become
11
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement in the form in which it was
initially declared effective, or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or such
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement in the form
in which it was initially declared effective, or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or such Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the indemnifying
party) in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or
12
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the third sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
13
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase hereunder, you may
in your discretion arrange for you or another party or other parties to purchase
such Underwriters' Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Underwriters' Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to you to purchase such Underwriters'
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Underwriters' Securities, or the Company notifies you that it has so
arranged for the purchase of such Underwriters' Securities, you or the Company
shall have the right to postpone the Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under the Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of such Underwriters' Securities which remains unpurchased does not exceed
one-tenth of the aggregate principal amount of all the Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Underwriters' Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its
14
pro rata share (based on the principal amount of Securities which such
Underwriter agreed to purchase hereunder) of the Underwriters' Securities of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above the aggregate principal amount
of Underwriters' Securities which remains unpurchased exceeds one-eleventh of
the aggregate principal amount of all the Securities, or if the Company shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Underwriters' Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Section 6 and Section 8 hereof; but if for any other reason the
Underwriters' Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to any Underwriter except as
provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by [lead Underwriter] on behalf of you as the
Representatives and may assume that such statement, request, notice or agreement
has been duly authorized by such Underwriter.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters, shall be sufficient in all respects if delivered or sent by
registered mail to you as the Representatives in care of [name and address of
lead Underwriter], Attention: __________________; and if to the Company, shall
be sufficient in all respects if delivered or sent by registered mail to G&K
Services, Inc., 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Chief Financial Officer;
15
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by registered mail to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire delivered to the Company.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence in connection with this
Agreement.
15. This Agreement shall be construed in accordance with the laws
of the State of Minnesota.
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Company.
It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of a telex,
copies of which, to the extent practicable and upon request, shall be submitted
to the Company for examination, but without warranty on your part as to the
authority of the senders thereof.
Very truly yours,
G&K SERVICES, INC.
By:
----------------------------------------
Accepted as of the date hereof:
[REPRESENTATIVE(S)]
By
-----------------------------------------
On behalf of each of the Underwriters
16
SCHEDULE I
Underwriting Agreement dated [pricing date]
Registration Statement No. 333-____________
Representatives:
Description of Securities:
Title:
Maturity:
Interest Rate:
Interest Payment Dates:
Aggregate principal amount and currency:
Purchase price and currency: $______________ plus accrued interest from [initial
interest accrual date]
Sinking fund provisions:
Redemption provisions:
Other provisions: [Defeasance provisions set forth in Articles Four and Fifteen
of the Indenture shall apply to the Securities]
Closing Date, Time and Location: [Closing Date] at ____ a.m. at the office
of _______________, ___________________________________,
_________________________, ____________.
I-1
SCHEDULE II
Underwriter Principal Amount of
Securities to be Purchased
--------------------------
$
_____________________________________ ________________
$
_____________________________________ ________________
$
_____________________________________ ________________
$
_____________________________________ ________________
Total $
________________
II-1
SCHEDULE III
DELAYED DELIVERY CONTRACT
G&K Services, Inc.
Attention: Chief Financial Officer
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from G&K Services, Inc.
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned, $__________ [name of security] (hereinafter called the
"Securities"), offered by the Company's Prospectus dated _________ and
Prospectus Supplement dated _____________, receipt of a copy of which is hereby
acknowledged, at a purchase price of _______% of the principal amount thereof,
plus accrued interest from the date from which interest accrues as set forth
below, and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Securities from the Company on
_______, ____ (the "Delivery Date") and interest on the Securities so purchased
will accrue from _______, ____.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by wire
transfer to a bank account specified by the Company, on the Delivery Date upon
delivery to the undersigned of the Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
condition that the purchase of the Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject. The obligation of the undersigned to take
delivery of and make payment for the Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment for the Securities
pursuant to other contracts similar to this contract.
The undersigned understands that underwriters (the "Underwriters")
are also purchasing Securities from the Company, but that the obligations of the
undersigned hereunder are not contingent on such purchases. Promptly after
completion of the sale to the Underwriters the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
III-1
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction to which
the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
By: _________________________________
(Signature)
_________________________________
(Name and Title)
_________________________________
(Address)
Accepted: ____________________, ____
G&K SERVICES, INC.
By: ________________________________
[Title]
III-2
