Exhibit (d)(i)
STOCK REPURCHASE AGREEMENT
This STOCK REPURCHASE AGREEMENT is entered into as of December 10, 2001
(this "Agreement") by ARAMARK WORLDWIDE CORPORATION, a company incorporated
under the laws of Delaware ("Worldwide") and U.S. TRUST COMPANY, NATIONAL
ASSOCIATION, in its capacity as trustee ("Trustee") for the ARAMARK Retirement
Savings Plan for Salaried Employees and for the ARAMARK Uniform and Career
Apparel Group Retirement Savings Plan (each as amended and restated from time to
time, together, the "401(k) Plans").
W I T N E S S E T H
WHEREAS, Worldwide and its parent ARAMARK Corporation, a company
incorporated under the laws of the State of Delaware ("ARAMARK"), have on this
day executed and delivered a Merger Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, the "Merger Agreement")
pursuant to which ARAMARK will merge with and into Worldwide (the "Merger") on
December 14, 2001 (the "Closing Date") with Worldwide to be the surviving
corporation in such Merger;
WHEREAS, upon completion of the Merger, Worldwide will change its name
to ARAMARK Corporation and all references to "ARAMARK" in the context of the
period of time commencing on or after the Closing Date shall mean the merged
entity;
WHEREAS, Worldwide has filed a Registration Statement on Form S-4 (File
No. 333-65228) with the Securities and Exchange Commission (the "Commission") to
register shares of Class A Common Stock, par value $0.01 per share ("Class A
Common Stock"), and Class B Common Stock, par value $0.01 per share ("Class B
Common Stock"), to be exchanged in the Merger for shares of Class A Common Stock
(the "Old Class A Common Stock") and Class B Common Stock (the "Old Class B
Common Stock") of ARAMARK;
WHEREAS, Worldwide has filed a Registration Statement on Form S-1 (File
No. 333-65226) (the "S-1 Registration Statement") with the Commission to
register 34,500,000 shares of Class B Common Stock, par value $0.01 per share,
to be offered to the public in a registered public offering (the "Public
Offering");
WHEREAS, the Commission has declared the S-1 Registration Statement to
be effective;
WHEREAS, Worldwide has entered into an Underwriting Agreement dated as
of the date hereof by and among Worldwide, ARAMARK, Xxxxxxx Xxxxx & Co. and X.X.
Xxxxxx Securities Inc., as representatives of the several underwriters named in
Schedule I thereto (as amended, supplemented or otherwise modified from time to
time, the "Underwriting Agreement"), for the issue and sale of an aggregate of
30,000,000 shares and, at the election of the underwriters, up to 4,500,000
additional shares of Class B Common Stock of Worldwide at a public price per
share of $23 (the "Public Offering Price");
WHEREAS, as soon as practicable after the Public Offering, ARAMARK
intends to use a portion of the proceeds of the Public Offering to launch a
tender offer (the "Tender
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Offer") for 14,386,259 shares of Class A Common Stock, or 10% of the shares of
Class A Common Stock outstanding immediately after completion of the Merger and
the Public Offering (the "Tender Percentage"), at a tender price per share that
Worldwide and ARAMARK anticipate will be equal to the Public Offering Price;
WHEREAS, ARAMARK intends pursuant to this Agreement to acquire an
amount of shares of Class A Common Stock to be received by the 401(k) Plans in
the Merger on a 20 for 1 basis for each share of Old Class A Common Stock equal
to the product of (x) the Tender Percentage and (y) the number of shares of
Class A Common Stock owned by the 401(k) Plans at the time of such purchase, or
3,276,700 shares (the "Repurchase Shares");
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Definitions. (a) As used in this Agreement, in addition to the terms
defined in the recitals hereto, the following capitalized terms shall have the
following meanings:
"Business Day" means any day other than a Saturday, a Sunday or a
United States federal holiday.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Governmental Approval" means any consent, approval, order or
authorization of, or registration, declaration or filing with, any United States
federal, state or municipal, or any foreign or other governmental department,
commission, board, bureau, agency or instrumentality required to authorize or
permit the execution or delivery by any Person of this Agreement or the
performance by such Person of any transaction contemplated hereby or thereby.
"Multiplier" means the fraction equal to (i) the Public Offering Price
divided by (ii) the Per Share Tender Offer Price.
"Party" means each of Worldwide and Trustee.
"Per Share Tender Offer Price" means the per share offering price to
the holders of shares of Class A Common Stock in the Tender Offer.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, joint venture, governmental authority or other entity.
"Taxes" means any tax (including, without limitation, withholding tax),
duty, levy, change or custom (including, without limitation, any sales or use
tax) imposed or collected by any taxing authority or agency (domestic or
foreign) and any penalty or interest with respect thereto.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.
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(c) All references herein to Sections shall be deemed to be references
to Sections in this Agreement, unless the context shall otherwise require.
(d) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provisions of this Agreement.
(e) The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation."
2. Stock Repurchase. On the terms and subject to the conditions set forth
herein, on the Closing Date, Trustee hereby agrees to sell to ARAMARK, and
ARAMARK hereby agrees to repurchase from Trustee, immediately prior to the time
that the Class B Common Stock first is sold to the public in the Public
Offering, the Repurchase Shares.
3. Purchase Price (a) In consideration for each Repurchase Share, ARAMARK
hereby agrees to pay to Trustee on the Closing Date the Public Offering Price in
immediately available funds. Each of the parties has determined to its
satisfaction that the amount paid for each Repurchase Share is not less than
adequate consideration within the meaning of Section 3(18) of the Employee
Retirement Income Security Act of 1974, as amended.
(b) If and to the extent the Per Share Tender Offer Price exceeds the
Public Offering Price, ARAMARK shall either:
(i) pay to Trustee on the date of completion of the Tender Offer (the
"Tender Offer Closing Date") an amount in immediately available funds equal to
the excess of the Per Share Tender Offer Price over the Public Offering Price as
additional consideration for each Repurchase Share; or
(ii) transfer to Trustee on the Tender Offer Closing Date a number of
shares of Class A Common Stock equal to (A) the number of Repurchase Shares
minus (B) the number of Repurchase Shares multiplied by the Multiplier;
provided that the election between clause (i) or (ii) shall be at the
sole election of ARAMARK.
4. No Tender by Trustee. Trustee hereby unconditionally agrees not to
tender any of the shares of Class A Common Stock held by it under the 401(k)
Plans in the Tender Offer; provided that ARAMARK discharges its obligations
under Section 2 and Section 3(a) before the Tender Offer commences.
5. Representations, Warranties and Covenants. (a) Each Party hereby
represents and warrants to the other Party that, as of the date hereof and as of
the Closing Date:
(i) Such Party is duly organized and validly existing under the laws of
the jurisdiction of its organization and has all requisite power and authority
to perform its obligations hereunder and to consummate the transactions
contemplated hereby.
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(ii) Such Party has all the necessary corporate power and all legal
authority required to enter into, execute and deliver this Agreement and to
perform fully such Party's obligations hereunder.
(iii) The execution of this Agreement by such Party and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate action on the part of such Party.
(iv) This Agreement has been duly executed and delivered by such Party
and constitutes the valid and legally binding obligation of such Party
enforceable against such Party in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally from time to time in effect and to general principles of equity
(including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in
equity or at law, and that, as of the date hereof, no Governmental Approval (as
defined herein), other than the exemption relief of the Commission under Rule
14e-5(d) of the Exchange Act, and no approval or consent of any other Person is
required in connection with the execution and delivery by such Party of this
Agreement and the consummation and performance by such Party of the transactions
contemplated hereby, other than such approvals and consents which failure to
obtain would not have a material adverse effect upon such Party acting as a
Party hereunder or on any other transaction contemplated hereby.
(v) The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby and the performance by such Party of its
obligations under this Agreement in accordance with its terms and conditions
will not conflict with or result in a breach or violation of any of the terms or
conditions of, or constitute (or with notice or lapse of time or both would
constitute) a default (or give rise to any right of termination, cancellation or
acceleration) under, as applicable, (x) the certificate of incorporation,
charter, articles of association, By-Laws or other constitutive document of such
Party, as applicable, (y) any instrument, contract, bond, note, mortgage,
indenture, license or other agreement to which such Party is a party or by or to
which such Party or such Party's assets or properties are bound or subject or
(z) any statute or regulation of any applicable law or any order, judgment,
injunction or decree of any court other than, in the case of clauses (x) and
(y), conflicts, breaches, violations or defaults which would not in the
aggregate have a material adverse effect upon such Party acting as a Party.
(b) The Trustee hereby represents and warrants to ARAMARK that, as of
the date hereof and as of the Closing Date, (i) the Trustee is the sole owner of
the Repurchase Shares for the sole benefit of the participants and beneficiaries
of the 401(k) Plans and has full power, right and authority to sell and transfer
the Repurchase Shares to ARAMARK and (ii) the Repurchase Shares are free and
clear of any liens, charges, claims, restrictions or encumbrances of any kind,
including, without limitation, pledges.
(6) Condition Precedent. The obligations of each of ARAMARK and Trustee
under this Agreement are subject to the satisfaction, or waiver, on or prior to
the Closing Date of the following conditions: each of the representations and
warranties of each of the Parties set forth in
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this Agreement shall be true and accurate in all material respects, in each case
as of the date hereof and as of the Closing Date as though made on and as of the
Closing Date.
7. Choice of Forum. With respect to any proceeding, claim or suit arising
under or relating to this Agreement, each Party hereto expressly agrees to
submit hereby to the exclusive jurisdiction of the Federal and state courts
located in the State of New York and hereby (i) waives any objection which such
Party may have at any time to the laying of venue of any such proceeding, claim
or suit brought in any such court, waives any claim that such proceeding, claim
or suit has been brought in an inconvenient forum and further waives the right
to object, with respect to such proceeding, claim or suit that such court does
not have jurisdiction over such Party and (ii) irrevocably consents to service
of process given in the manner provided for notices in Section 9; provided that
nothing in this Agreement shall affect the right of any Party to serve process
in any other manner permitted by law.
8. Assignment. This Agreement may not be assigned by any Party without the
prior written consent of the other Party. Any purported agreement in violation
of this Section 8 shall be null and void. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by the Parties and their respective successors and assigns.
9. Notices. (a) Except as otherwise expressly provided in this Agreement,
all notices, requests and other communications to any Party shall be in writing
(including a facsimile or similar writing) and shall be given to such Party at
the following addresses or facsimile numbers, as applicable:
If to ARAMARK to:
ARAMARK Corporation
ARAMARK Tower
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx
Xxxxxxxxxxxx 00000
Attention of Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of Xxxxxxx Xxxxxx, Esq. and Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
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If to Trustee to:
U.S. Trust Company, National Association
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of Xxxx Xxxxxxx
Facsimile: _______________
with a copy to:
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention of Xxxx Xxxxxx, Esq.
Facsimile: _______________
(b) Each notice, request or other communication to any Party shall be
effective (i) if given by facsimile, at the time such facsimile is transmitted
and the appropriate confirmation is received (or, if such time is not during a
Business Day, at the beginning of the following Business Day) or (ii) if given
by any other means, when delivered at the applicable address specified in
Section 9(a). Any Party may change address by reasonable prior written notice to
the other Party.
10. Third Party Beneficiary. Nothing in this Agreement, express or
implied, is intended to or shall confer upon anyone other than the Parties any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
11. Section Headings. Headings contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit or extend the scope
or intent of this Agreement or any provisions hereof.
12. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
13. Entire Agreement. This Agreement contains the entire understanding of
the Parties with respect to the subject matter hereof and supersedes all prior
agreements, discussions and understandings with respect to such subject matter.
14. Amendment. This Agreement may be amended only by a written instrument
signed by each Party.
15. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
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16. Cumulative Rights. The rights of each Party under this Agreement are
cumulative and in addition to all other rights or remedies that any Party may
otherwise have at law or in equity.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement of the Parties hereto.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date first above written.
ARAMARK WORLDWIDE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name:
Title:
U.S. TRUST COMPANY, NATIONAL ASSOCIATION
In its capacity as trustee for the
ARAMARK Retirement Savings Plan for
Salaried Employees and the ARAMARK
Uniform and Career Apparel Group
Retirement Savings Plan, each as
amended and restated from time to
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
