EXHIBIT 10.3
AMENDED AND RESTATED
SECURITYHOLDERS AGREEMENT
This AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT (this "Agreement") is
made as of [November __], 2004 by and among Coinmach Holdings, LLC, a Delaware
limited liability company (the "Company"), Coinmach Service Corp., a Delaware
corporation ("CSC"), each of the executives listed on the Schedule of Executives
attached hereto (the "Executives"), GTCR-CLC, LLC, a Delaware limited liability
company ("GTCR-CLC"), Xxxxxxxxx & Company, Inc. ("Jefferies") and each of the
investors listed on the Schedule of Investors attached hereto (the "Investors").
The Executives, GTCR-CLC, Jefferies and the Investors are collectively referred
to herein as the "Securityholders" and individually as a "Securityholder."
Capitalized terms used but not otherwise defined herein are defined in Section 9
hereof.
WHEREAS, the parties hereto are parties to that certain Securityholders
Agreement, dated as of March 6, 2003 (the "Existing Agreement");
WHEREAS, on or about the date hereof, the Company will exchange all of the
shares of capital stock of Coinmach Laundry Corporation and Appliance Warehouse
of America, Inc. held by it for shares of Class B Common Stock, par value $0.01
per share (the "Class B Stock"), of CSC;
WHEREAS, in connection with the exchange described in the foregoing
recital, the Company and the Securityholders parties hereto desire to amend and
restate the Existing Agreement in its entirety in the manner set forth herein in
order to (i) contemplate the application of certain provisions thereof to any
Class B Stock or other securities of CSC that the Securityholders may acquire
from the Company, (ii) make CSC a party hereto and (iii) remove certain of the
voting agreements contained therein.
NOW, THEREFORE, the parties hereto hereby agree to amend and restate the
Existing Agreement in its entirety as follows:
1. Board of Managers.
(a) From the date hereof and until the provisions of this Section 1
cease to be effective, each Securityholder shall vote all of his or its
Securityholder Units which are voting Units and any other voting securities of
the Company over which such Securityholder has voting control and shall take all
other necessary or desirable actions within his or its control (whether in its
capacity as a securityholder, manager, member of a Board committee or officer of
the Company or otherwise, and including, without limitation, attendance at
meetings in person or by proxy for purposes of obtaining a quorum and execution
of written consents in lieu of meetings), and the Company shall take all
necessary or desirable actions within its control (including, without
limitation, calling special Board and securityholder meetings), so that:
(i) the authorized number of managers on the Board shall be
the number necessary to allow for the designations provided for
pursuant to Section 1(a)(ii) below or such higher number as
determined by GTCR-CLC from time to time;
(ii) the following individuals shall be elected to the Board:
(1) three (3) individuals designated by GTCR-CLC, which
individuals initially shall be Xxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxx and Xxxxx X. Xxxxxx (the "GTCR Managers");
(2) the Chief Executive Officer of the Company (the
"Management Manager");
(3) one (1) or more individuals designated by GTCR-CLC
(the "Outside Managers") who are not members of CSC's or the
Company's management or employees or officers of CSC, the Company
or their respective Subsidiaries and who are reasonably
acceptable to the Executives, one of which initially shall be
Xxxxx X. Xxxxxxx; provided that if after 60 days GTCR-CLC and the
Executives are unable to agree upon the designation of any
Outside Manager(s), then GTCR-CLC shall designate such Outside
Manager(s) in its sole discretion; provided further that the
rights of GTCR-CLC under this Section 1 shall terminate at such
time as GTCR-CLC and its Permitted Transferees hold in the
aggregate less than 50% of the Securityholder Units held by
GTCR-CLC on the date hereof; and
(4) if requested by GIC, one individual (the "GIC
Manager") designated by GIC; provided that the rights of GIC
under this Section 1 shall terminate at such time as GIC and its
Permitted Transferees hold in the aggregate less than 50% of the
Securityholder Units held by GIC on the date hereof;
(iii) any committees of the Board shall be created only upon,
and may be disbanded upon, the approval of not less than three
members of the Board, and each such committee (if any) shall include
at least one GTCR Manager;
(iv) the removal from the Board (with or without cause) of any
GTCR Manager or Outside Manager shall be at GTCR-CLC's written
request, but only upon such written request and under no other
circumstances;
(v) if the Management Manager ceases to be the Chief Executive
Officer of the Company, he shall be removed as a Manager of the
Company promptly after his employment in such office ceases; and
(vi) in the event that any GTCR Manager, Management Manager,
GIC Manager or Outside Manager ceases to serve as a member of the
Board during his/her term of office, the resulting vacancy shall be
filled in the manner provided in subparagraphs (ii)(1) through (4)
above, as the case may be.
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(b) The Company shall pay the reasonable out-of-pocket expenses
incurred by each Manager in connection with attending the meetings of the Board
and any committees thereof.
(c) The provisions of this Section 1 shall terminate automatically
and be of no further force and effect upon the first to occur of (i) a Qualified
Public Offering or (ii) a Sale of the Company.
(d) If any party fails to designate a representative to fill a
position pursuant to the terms of this Section 1, the election of an individual
to such position shall be accomplished in accordance with the Company's
operating agreement and applicable law.
(e) Each of Xxxxxxxx Xxxxx, Xxxxxx X. Xxxxx, a representative
appointed by the TCW/Crescent Purchasers and, for so long as no GIC Manager
serves on the Board, a representative appointed by GIC (each of Messrs. Xxxxx
and Xxxxx and each such representative being an "Observer" and together the
"Observers") shall be entitled to certain rights set forth herein. The Company
shall provide to each Observer notice of each meeting of the Board at the same
time and in the same manner as notice is given to the Managers, and the Company
shall permit each Observer to attend, as an observer, without voting rights, all
meetings of the Board. Each Observer shall be entitled to receive all written
materials and other information given to Managers in connection with such
meetings at the same time such materials and information are given to the
Managers. If the Company proposes to take any action by written consent in lieu
of a meeting of the Board, the Company shall give notice to each Observer at the
same time and in the same manner as notice is given to the Managers. The Company
shall pay all reasonable out-of-pocket expenses of each Observer to attend
meetings of the Board. Notwithstanding anything herein to the contrary, if
counsel to the Company concludes in its reasonable discretion that the rights
granted to the Observers in this Section 1(e) will, or could, in certain
circumstances, result in a violation or waiver of the Company's attorney-client
privilege, such rights may be suspended in such circumstances so as to protect
the Company's attorney-client privilege; provided that such suspension shall be
applied on an individual issue basis and only to the extent reasonably required
to preserve such attorney-client privilege.
2. Representations and Warranties. Each Securityholder represents and
warrants that (i) such Securityholder is the record owner of the number of
Securityholder Units set forth opposite his or its name on the Schedule of
Securityholders attached hereto, (ii) this Agreement has been duly authorized,
executed and delivered by such Securityholder and constitutes the valid and
binding obligation of such Securityholder, enforceable in accordance with its
terms, (iii) all Securityholder Units have been acquired by such Securityholder
for investment and not with a view to the sale or distribution thereof within
the meaning of the Securities Act, and (iv) such Securityholder has not granted
and is not a party to any proxy, voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
No holder of Securityholder Units shall grant any proxy or become party to any
voting trust or other agreement which is inconsistent with, conflicts with or
violates any provision of this Agreement.
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3. Restrictions on Transfer of Covered Securities. No Securityholder shall
sell, transfer, assign, pledge or otherwise dispose of (a "Transfer") any
interest in his or its Covered Securities, except pursuant to the provisions of
this Section 3.
(a) Participation Rights. At least 30 days prior to any Transfer of
any Covered Securities by any Securityholder which, together with its Permitted
Transferees, holds at least the Threshold Amount of a class of Covered
Securities as of immediately prior to such Transfer (a "Significant
Securityholder") (other than (i) pursuant to a Public Sale or (ii) a Transfer
pursuant to Section 3(c) or Section 5 hereof), the transferring Significant
Securityholder will deliver a written notice (the "Sale Notice") to the Company
and the other Securityholders (the "Other Securityholders"), specifying in
reasonable detail the identity of the prospective transferee(s), the Covered
Securities to be sold and the terms and conditions of the Transfer. In the event
that the Other Securityholders hold (x) the class of Covered Securities which
are to be transferred, (y) securities convertible, exchangeable or exercisable
for the class of Covered Securities which are to be transferred, or (z)
securities into which the class of Covered Securities which are to be
transferred are convertible, exchangeable or exercisable, they may elect to
participate in the contemplated Transfer by delivering written notice to the
transferring Significant Securityholder within 15 days after delivery of the
Sale Notice. If any Other Securityholders have elected to participate in such
Transfer ("Participating Securityholders"), the transferring Significant
Securityholder and each Participating Securityholder will be entitled to sell in
the contemplated Transfer, at the same price and on the same terms, a number of
Covered Securities of such class (other than Unvested Units (as such term is
defined in the Executives' Equity Participation Agreements), or securities
convertible, exchangeable or exercisable for Covered Securities of such class
(or securities into which such class of Covered Securities are convertible,
exchangeable or exercisable), equal to the product of (i) the quotient
determined by dividing the number of Covered Securities of such class (other
than Unvested Units) and securities convertible, exchangeable or exercisable for
Covered Securities of such class (or securities into which such class of Covered
Securities are convertible, exchangeable or exercisable) held by such Person by
the aggregate number of Covered Securities of such class (other than Unvested
Units) and securities convertible, exchangeable or exercisable for Covered
Securities of such class (or securities into which such class of Covered
Securities are convertible, exchangeable or exercisable) owned by the
transferring Significant Securityholder and all Participating Securityholders
and (ii) the number of Covered Securities of such class and securities
convertible, exchangeable or exercisable for Covered Securities of such class
(or securities into which such class of Covered Securities are convertible,
exchangeable or exercisable) to be sold in the contemplated Transfer. Subject to
the remaining provisions of this Section 3(a), the transferring Significant
Securityholder shall use its best efforts to obtain the agreement of the
prospective transferee(s) to the participation of the Participating
Securityholders in any contemplated Transfer, and the transferring Significant
Securityholder shall not Transfer any of its Covered Securities of such class to
the prospective transferee(s) unless (1) the prospective transferee(s) agrees to
allow the participation of the Participating Securityholders or (2) the
transferring Significant Securityholder agrees to purchase the number of such
class of Covered Securities from any Participating Securityholders which the
Participating Securityholders would have been entitled to sell pursuant to this
Section 3(a). If any securities convertible, exchangeable or exercisable for
Covered Securities of such class (or securities into which such class of Covered
Securities are convertible, exchangeable or exercisable) are included in any
Transfer under this Section 3(a), the purchase price for such
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securities shall be equal to the full purchase price determined hereunder for
the Covered Securities covered by the portion of such securities to be
transferred, adjusted by the aggregate exercise price for such units.
Notwithstanding the foregoing, in the event that a prospective transferee of CSC
Securities, other than shares of Class A Stock, is not willing to agree to the
participation of a Participating Securityholder in any such Transfer for the
reason that such Participating Securityholder proposes to transfer Class B Stock
and, pursuant to the terms of the CSC Charter, the proposed Transfer would
result in holders of the Class B Stock losing any voting rights to which holders
of the Class B Stock are then entitled, then (i) the transferring Significant
Securityholder shall have no further obligation either to endeavor to include
such Class B Stock in the proposed Transfer or to purchase such Class B Stock
from such Participating Security holder, (iii) the transferring Significant
Securityholder shall not be precluded from transferring any of its Covered
Securities by reason of the exclusion of such Class B Stock from the proposed
Transfer, and (iii) such shares of Class B Stock shall be disregarded for
purposes of determining the number of Covered Securities that such Participating
Securityholder may sell in the contemplated Transfer. Each Securityholder
transferring Covered Securities pursuant to this Section 3(a) shall pay his or
its pro rata share (based on the number of Covered Securities to be sold) of the
expenses incurred by the Securityholders in connection with such transfer and
shall be obligated to join on a pro rata basis (based on the number of Covered
Securities to be sold) in any indemnification or other obligations that the
transferring Significant Securityholder agrees to provide in connection with
such transfer (other than any such obligations that relate specifically to a
particular Securityholder, such as indemnification with respect to
representations and warranties given by a Securityholder regarding such
Securityholder's title to, ownership of Covered Securities and, for such
Securityholders that are not individuals, authority to enter into such
agreement); provided, however, that no Investor shall be required to make a
representation or warranty that any other Investor is not required to make.
(b) First Refusal Rights. Except for a Transfer of Securityholder
Units by an Executive (which Transfers are governed by the Senior Management
Agreements and the Management Contribution Agreements) or any Transfer of Class
B Preferred Units, at least thirty (30) days prior to any Transfer of Covered
Securities by any Securityholder which, together with its Permitted Transferees,
holds less than the Threshold Amount of a class of Covered Securities as of
immediately prior to such Transfer (other than (i) pursuant to a Public Sale,
(ii) a Transfer to the Company, (iii) a Transfer of Securityholder Units
pursuant to a Senior Management Agreement, or (iv) a Transfer pursuant to
Section 3(a), Section 3(c) or Section 5 hereof), the Securityholder making such
Transfer (the "Minority Transferor") shall deliver a written notice (the
"Transfer Notice") to the Company and each Significant Securityholder (which
shall, for purposes of this subsection (b), include GTCR-CLC and each Investor
other than any such Person that is the Minority Transferor hereunder) that it
desires to Transfer Covered Securities of such class, specifying in reasonable
detail the identity of the prospective transferee(s), the number of Covered
Securities to be transferred and the terms and conditions of the Transfer,
including the proposed price per Covered Security of such class (which price
shall be payable solely in cash at the closing of the transaction or in
installments over time). The Company may elect to purchase all or any portion of
the Covered Securities to be transferred, upon the same terms and conditions as
those set forth in the Transfer Notice, by delivering a written notice of such
election to the Minority Transferor and each Significant Securityholder within
15 days after the Transfer Notice has been given to the Company. If for any
reason the Company does not elect to purchase all of the Covered Securities to
be transferred, the Significant Securityholder(s)
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shall be entitled to purchase the Covered Securities which the Company has not
elected to purchase (the "Available Securities"), upon the same terms and
conditions as those set forth in the Transfer Notice, by giving written notice
of such election to the Company and to the Minority Transferor within 30 days
after the Transfer Notice has been given to the Company and each Significant
Securityholder. If more than one Significant Securityholder elects to purchase
the Available Securities, the Available Securities will be allocated among such
electing Securityholders (i) with respect to Available Securities that are
Securityholder Units, pro rata according to the number of Securityholder Units
of the applicable class owned by each such electing Securityholder on a Fully
Diluted Basis or (ii) with respect to Available Securities that are CSC
Securities, pro rata according to the number of Securityholder Units owned by
each such Securityholder on a Fully Diluted Basis together with the number of
Securityholder Units formerly held by each such Securityholder that were
redeemed, surrendered or exchanged for CSC Securities the applicable
Securityholder then owns. The closing of the purchase of any Covered Securities
pursuant to this Section 3(b) shall take place within sixty (60) days after the
date on which the parties to such purchase have been finally determined pursuant
to this Section 3(b). Notwithstanding the foregoing, if the Company, and the
Significant Securityholder(s) do not elect to purchase, collectively, all of the
Covered Securities of a class specified in the Transfer Notice, then the
Minority Transferor may transfer all of the Covered Securities of such class
specified in the Transfer Notice to the transferee(s) identified in the Transfer
Notice for (i) a price no less than the price specified in the Transfer Notice
and (ii) other terms no more favorable to the transferee(s) thereof than
specified in the Transfer Notice, during the 90-day period immediately following
the date on which the Transfer Notice has been given to the Company and the
Significant Securityholder(s). Any Covered Securities not transferred within
such 90-day period will be subject to the provisions of this Section 3(b) upon
subsequent transfer.
(c) Permitted Transfers. The restrictions contained in this Section
3 shall not apply with respect to any Transfer of Covered Securities, other than
Class B Stock, by any Securityholder (i) in the case of a Securityholder who is
an individual, pursuant to applicable laws of descent and distribution or among
such individual's Family Group, (ii) in the case of a Securityholder which is an
entity, among such entity's Affiliates or a Transfer by such Securityholder as a
pledge to a trustee for the benefit of secured noteholders pursuant to documents
related to the financing of such Securityholder, (iii) as a pledge of
Securityholder Units owned by any of the Executives to the Company or its
Subsidiaries in connection with any loan(s) to purchase such units and (iv) to
the Company pursuant to the Redemption Agreement; provided that the restrictions
contained in this Section 3 shall continue to be applicable to the Covered
Securities after any of the foregoing Transfers, and provided further that the
transferees of such Covered Securities shall have agreed in writing to be bound
by the provisions of this Agreement which affect the Covered Securities so
transferred. The restrictions contained in this Section 3 shall not apply with
respect to (i) any Transfer of Class B Stock by any Securityholder to any Class
B Affiliate or (ii) any Transfer of Class B Stock that constitutes a bona fide
pledge of such Class B Stock as collateral security for indebtedness due to the
pledgee, provided, however, that such shares shall not be transferred to,
registered in the name of or voted by the pledgee. All transferees permitted
under this Section 3(c) are collectively referred to herein as "Permitted
Transferees." Each Permitted Transferee shall be deemed a Securityholder for
purposes of this Agreement.
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(d) Other Agreements. Notwithstanding anything herein to the
contrary, the rights of any Securityholder to Transfer any Covered Securities
pursuant to the terms of this Agreement shall be subject to all such other
limitations and restrictions, if any, to which such Securityholder or such
Covered Securities are subject, including, by way of example but not in
limitation of the foregoing, the Equity Participation Agreements to which
certain of the Securityholders are party.
(e) Termination of Restrictions. The restrictions set forth in this
Section 3 shall continue with respect to each Covered Security until the earlier
of (i) the transfer of such Covered Security in a Public Sale, or (ii) the
consummation of a Sale of the Company or a Qualified Public Offering.
4. Pre-Emptive Rights. Except for issuances of equity securities of the
Company
(i) pursuant to a public offering registered under the
Securities Act,
(ii) to employees or Outside Managers of the Company or its
Subsidiaries,
(iii) as payment of all or a portion of the purchase price of
any business or assets thereof acquired by the Company or any of its
Subsidiaries,
(iv) to landlords, lessors or lenders in connection with any
bona fide lease arrangement or financing,
(v) to consultants, financial advisors or vendors as payment
for services or products,
(vi) to a strategic partner upon entering into a long-term
business relationship with such Person,
(vii) upon the exercise of any option or other right described
in any of clauses (i) through (vii) above, or
(viii) pursuant to the Redemption Agreement,
if the Company authorizes the issuance or sale of any Common Units
or any securities convertible, exchangeable or exercisable for Common Units, the
Company shall offer to sell to each Securityholder that is a holder of Common
Units, at the same price and on the same terms, a portion of such units or
securities equal to the quotient determined by dividing (1) the number of Common
Units (other than Unvested Units) held by such Securityholder by (ii) the total
number of Common Units (other than Unvested Units) outstanding, in each case on
a Fully Diluted Basis (other than Unvested Units). Each holder of Common Units
shall be entitled to purchase such units or securities at the most favorable
price and on the most favorable terms as such units or securities are to be
offered to any other Persons; provided that if all Persons entitled to purchase
or receive such units or securities are required to also purchase other
securities of the Company, the Securityholders exercising their rights pursuant
to this Section 4(a) shall also be required to purchase the same strip of
securities (on the same terms and
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conditions) that such other Persons are required to purchase. The purchase price
for all units and securities to be offered to the holders of Securityholder
Units shall be payable in cash or, to the extent otherwise required hereunder,
notes issued by such holders.
(b) In order to exercise its purchase rights hereunder, a holder of
Securityholder Units must within fifteen (15) days after receipt of written
notice from the Company describing in reasonable detail the units or securities
being offered, the purchase price thereof, the payment terms and such
Securityholder's percentage allotment, deliver a written notice to the Company
describing its election hereunder.
(c) Upon the expiration of the offering period described above, the
Company shall be entitled to sell such units or securities which the holders of
Securityholder Units have not elected to purchase during the ninety (90) days
following such expiration on terms and conditions no more favorable to the
purchasers thereof than those offered to such holders. Any such securities
offered or sold by the Company after such 90-day period must be reoffered to the
holders of Securityholder Units pursuant to the terms of this Section 4.
(d) The rights set forth in this Section 4 shall continue with
respect to each Securityholder Unit until the earlier of (i) the transfer of
such Securityholder Unit in a Public Sale, or (ii) the consummation of a Sale of
the Company or a Qualified Public Offering.
5. Sale of the Company.
(a) If the Board and the holders of a majority of the Common Units
then outstanding approve a sale of all or substantially all of the Company's
assets determined on a consolidated basis or a sale of all or substantially all
of the Company's outstanding securities (whether by merger, recapitalization,
consolidation, reorganization, combination or otherwise) to any other Person
that is not an Affiliate of a Securityholder in a bona fide, arms-length
transaction (collectively, a "Sale of the Company"), each holder of
Securityholder Units shall vote for, consent to, and raise no objections
against, such Sale of the Company. If the Sale of the Company is structured as
(i) a merger or consolidation, each holder of Securityholder Units shall waive
any dissenters rights, appraisal rights or similar rights in connection with
such merger or consolidation, or (ii) a sale of securities, each holder of
Securityholder Units shall agree to sell all of its Securityholder Units (other
than Class B Preferred Units) and rights to acquire Securityholder Units (other
than any rights with respect to Class B Preferred Units) on the terms and
conditions approved by the Board and the holders of a majority of the Common
Units then outstanding. Each holder of Securityholder Units shall take all
necessary or desirable actions in connection with the consummation of the Sale
of the Company as requested by the Company.
(b) The obligations of the holders of Securityholder Units with
respect to the Sale of the Company are subject to the satisfaction of the
following conditions: (i) upon the consummation of the Sale of the Company, each
holder of a class of Securityholder Units shall receive the same form of
consideration; (ii) if any holders of a class of Securityholder Units are given
an option as to the form and amount of consideration to be received, each holder
of such class of Securityholder Units shall be given the same option; and (iii)
each holder of then currently exercisable rights to acquire units of a class of
Securityholder Units shall be given an opportunity to either (A) exercise such
rights prior to the consummation of the Sale of the
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Company and participate in such sale as holders of such class of Securityholder
Units or (B) upon the consummation of the Sale of the Company, receive in
exchange for such rights consideration equal to the amount determined by
multiplying (1) the same amount of consideration per unit received by holders of
such class of Securityholder Units in connection with the Sale of the Company
less the exercise price per unit of such rights to acquire such class of
Securityholder Units by (2) the number of units of such class of Securityholder
Units represented by such rights.
(c) The provisions of this Section 5 shall terminate upon the
consummation of a Qualified Public Offering.
6. Initial Public Offering. In the event that the Board and the holders of
a majority of the Common Units then outstanding approve an Initial Public
Offering as contemplated by Section 15.7 of the LLC Agreement, the holders of
Securityholder Units shall take all necessary or desirable actions in connection
with the consummation of the Initial Public Offering. In the event that such
Initial Public Offering is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the Company's
capital structure would adversely affect the marketability of the offering:
(i) each Securityholder who is a holder of units of the
Company's Class A Preferred Units shall consent to and vote for a
recapitalization, reorganization and/or exchange of the Company's
Class A Preferred Units into securities or other consideration that
the managing underwriters, the Board and the holders of at least a
majority of the units of Class A Preferred Units then outstanding
find acceptable and shall take all necessary or desirable actions in
connection with the consummation of the recapitalization,
reorganization and/or exchange;
(ii) each Securityholder who is a holder of units of the
Company's Class B Preferred Units shall consent to and vote for a
recapitalization, reorganization and/or exchange of the Company's
Class B Preferred Units into securities that the managing
underwriters, the Board and the holders of at least 70% of the units
of Class B Preferred Units then outstanding find acceptable and
shall take all necessary or desirable actions in connection with the
consummation of the recapitalization, reorganization and/or
exchange; provided that each holder of Class B Preferred Units shall
receive the same type of security with the same value per unit;
(iii) each Securityholder who is a holder of units of the
Company's Class C Preferred Units shall consent to and vote for a
recapitalization, reorganization and/or exchange of the Company's
Class C Preferred Units into securities that the managing
underwriters, the Board and the holders of a majority of the units
of Class C Preferred Units then outstanding find acceptable and
shall take all necessary or desirable actions in connection with the
consummation of the recapitalization, reorganization and/or
exchange; provided that each holder of Class C Preferred Units shall
receive the same type of security with the same value per unit; and
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(iv) each Securityholder who is a holder of units of the
Company's Common Units shall consent to and vote for a
recapitalization, reorganization and/or exchange of the Company's
Common Units into securities that the managing underwriters, the
Board and the holders of a majority of the units of Common Units
then outstanding find acceptable and shall take all necessary or
desirable actions in connection with the consummation of the
recapitalization, reorganization and/or exchange; provided that each
holder of Common Units shall receive the same type of security with
the same value per unit.
7. Legend. Each certificate issued after the date hereof evidencing
Covered Securities and each certificate issued in exchange for or upon the
transfer of any Covered Securities (if such units remain Covered Securities
after such transfer) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AMENDED
AND RESTATED SECURITYHOLDERS AGREEMENT DATED AS OF NOVEMBER [__], 2004,
AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE
COMPANY'S SECURITYHOLDERS, AS AMENDED AND MODIFIED FROM TIME TO TIME. A
COPY OF SUCH SECURITYHOLDERS AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE
BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED FROM TIME TO TIME (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER."
The Company shall imprint, or in the case of CSC Securities, CSC
shall cause its transfer agent to imprint, such legend on all certificates
evidencing Covered Securities outstanding from time to time. The legend set
forth above shall be removed from the certificates evidencing any securities
which cease to be Covered Securities, transferred pursuant to a Public Sale or
upon termination of the Agreement.
8. Conditions to Transfer.
(a) Prior to transferring any Covered Securities (other than in a
Public Sale, a Sale of the Company or a Transfer to the Company or to a
Securityholder) to any Person, the transferring holders of Covered Securities
shall cause the prospective transferee to execute and deliver to the Company,
for the benefit of the Company and the other Securityholders, a counterpart of
this Agreement pursuant to which such transferee agrees to be bound as a
"Securityholder" by the provisions of this Agreement.
(b) Prior to the consummation of any Transfer of Covered Securities,
the transferring Securityholder shall obtain and deliver to the Company, in the
case of a Transfer of
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Securityholder Units, or CSC, in the case of a Transfer of CSC Securities, a
Certificate of Transfer substantially in the form attached hereto as Exhibit A
from each transferee of the Transferred Covered Securities.
9. Definitions.
"Affiliate" of a Person means any direct or indirect general or limited
partner or member of such Person, or any employee or owner thereof, or any other
person, entity or investment fund controlling, controlled by or under common
control with such Person, and will include, without limitation, its owners and
employees. An Affiliate of TCW/Crescent Purchasers shall be deemed to include
any TCW/Crescent Purchaser and any of their Affiliates.
"Agreement" has the meaning set forth in the preamble hereto.
"Available Units" has the meaning set forth in Section 3(b) hereto.
"Board" has the meaning set forth in the eleventh recital paragraph
hereto.
"Class A Stock" means CSC's Class A Common Stock, par value $0.01 per
share.
"Class B Affiliate" has the meaning set forth in the CSC Charter.
"Class B Stock" has the meaning set forth in the recitals.
"Common Units" means the Company's Common Units.
"Company" has the meaning set forth in the preamble hereto.
"Covered Securities" means all Securityholder Units and CSC Securities.
"CSC" has the meaning set forth in the preamble.
"CSC Charter" means CSC's Amended and Restated Certificate of
Incorporation, as in effect on the date hereof and as the same may be amended,
amended and restated, or otherwise modified from time to time.
"CSC Securities" means any of the following securities to the extent they
are issued by the Company to Securityholders by way a distribution, redemption
of or otherwise in respect of their Securityholder Units: (i) Class B Stock; or
(ii) any securities or rights issued or issuable directly or indirectly with
respect to the securities and referred to in clauses (i) and (ii) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular CSC Securities, such securities shall cease to be CSC Securities
when they have been disposed of in a Public Sale or repurchased by the Company
or any Subsidiary.
"Equity Participation Agreements" means, collectively, those Equity
Participation Agreements entered into between the Company, and each of the
employees of Coinmach Corporation that have acquired Equity Securities of the
Company, and any other agreements for
11
the sale of Equity Securities between the Company and any employees of the LLC
or its Subsidiaries which are designated as "Equity Participation Agreements" by
the Board.
"Executives" has the meaning set forth in the preamble hereto.
"Family Group" means with respect to any Person, their spouse and
descendants (whether natural or adopted), any trust solely for the benefit of
such Person and/or their spouse and/or descendants, and any retirement plan for
the Person.
"Fully Diluted Basis" means, without duplication, (i) all Common Units
outstanding at the time of determination plus (ii) all Common Units issuable
upon conversion of any convertible securities or the exercise of any option,
warrant or similar right, whether or not such conversion, right or option,
warrant or similar right is then exercisable.
"GIC" means Filbert Investment Pte Ltd.
"GIC Manager" has the meaning set forth in Section 1(a)(ii)(4) hereto.
"GTCR-CLC" has the meaning set forth in the preamble hereto.
"GTCR Contribution Agreement" has the meaning set forth in the seventh
recital paragraph hereto.
"GTCR Managers" has the meaning set forth in Section 1(a)(ii)(1) hereto.
"Initial Public Offering" means the first sale after the date hereof in an
underwritten public offering registered under the Securities Act (other than on
Form S-8 or a similar form) of equity securities of the Company (or any
successor thereto).
"Investors" has the meaning set forth in the preamble hereto.
"LLC Agreement" means that certain Limited Liability Company Agreement of
the Company, dated as of March 6, 2003, as amended, amended and restated or
otherwise modified from time to time.
"Management Contribution Agreements" means those certain Management
Contribution Agreements by and between each Executive and the Company, dated as
of March 6, 2003.
"Management Manager" has the meaning set forth in Section 1(a)(ii)(2)
hereto.
"Minority Transferor" has the meaning set forth in Section 3(b) hereto.
"Observer(s)" has the meaning set forth in Section 1(e) hereto.
"Other Securityholders" has the meaning set forth in Section 3(a) hereto.
"Outside Managers" has the meaning set forth in Section 1(a)(ii)(3)
hereto.
"Participating Securityholders" has the meaning set forth in Section 3(a)
hereto.
12
"Permitted Transferees" has the meaning set forth in Section 3(c) hereto.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Sale" means any sale of Covered Securities to the public pursuant
to an offering registered under the Securities Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 adopted
under the Securities Act (other than Rule 144(k) prior to an Initial Public
Offering).
"Qualified Public Offering" means the first sale after the date hereof in
an underwritten public offering registered under the Securities Act (other than
on Form S-8 or a similar form) of equity securities of the Company (or any
successor thereto) having an aggregate offering value of at least $25 million.
"Redemption Agreement" means that certain Redemption Agreement, dated as
of November 10, 2004, by and among the Company and the Securityholders parties
thereto, as amended or otherwise modified from time to time.
"Sale Notice" has the meaning set forth in Section 3(a) hereto.
"Sale of the Company" has the meaning set forth in Section 5(a) hereto.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Securityholder(s)" has the meaning set forth in the preamble hereto.
"Securityholder Units" means (i) any units of the Company purchased or
otherwise acquired by any Securityholder, (ii) any units or other securities
convertible into or exchangeable for, directly or indirectly, any units of the
Company, purchased or otherwise acquired by any Securityholder, whether or not
then convertible or exchangeable, and (iii) any securities or rights (other than
CSC Securities) issued or issuable directly or indirectly with respect to the
securities and rights referred to in clauses (i) and (ii) above by way of unit
dividend or unit split or in connection with a combination of units,
recapitalization, merger, consolidation or other reorganization. As to any
particular Securityholder Units, such units shall cease to be Securityholder
Units when they have been disposed of in a Public Sale or repurchased by the
Company or any Subsidiary.
"Senior Management Agreements" means those Senior Management Agreements
between Coinmach Corporation and certain of the Executives dated on or before
March 6, 2003.
"Significant Securityholder" has the meaning set forth in Section 3(a)
hereto.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
13
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (ii) if a
limited liability company, partnership, association or other business entity, a
majority of the limited liability company, partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a limited liability company, partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or shall be or control the managing
director or general partner of such limited liability company, partnership,
association or other business entity. References to any "Subsidiary" of the
Company shall be given effect only at such times as the Company has one or more
Subsidiaries.
"TCW/Crescent Purchasers" means, collectively, TCW/Crescent Mezzanine
Partners II, L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Trust
II, a Delaware business trust, TCW Leverage Income Trust, L.P., a Delaware
limited partnership, TCW Leveraged Income Trust II, L.P., a Delaware limited
partnership, and TCW Leveraged Income Trust IV, L.P., a Delaware limited
partnership, any of their Affiliates or any holder of Securityholder Units for
whom Trust Company of the West or any Affiliate of Trust Company of the West
acts as an Account Manager (each individually a "TCW/Crescent Purchaser").
"Threshold Amount" means, (i) with respect to any class of Securityholder
Units, 15% of such class, (ii) with respect to any class of CSC Securities,
other than Class B Stock, 15% of the aggregate number of shares of such class
held by all Securityholders at the time of determination, and (iii) with respect
to the Class B Stock, any amount of Class B Stock.
"Transfer" has the meaning set forth in Section 3 hereto.
"Transfer Notice" has the meaning set forth in Section 3(b) hereto.
10. Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Securityholder Units in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee(s) of such Securityholder Units as the
owner of such securities for any purpose.
11. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment, or waiver of any provision of this Agreement shall be
effective against the Company or the Securityholders unless such modification,
amendment, or waiver is approved in writing by the Company and Securityholders
holding at least a majority of the Common Units (for the purpose of such
determination, Common Units that were surrendered, exchanged or redeemed for CSC
Securities shall be treated as outstanding); provided that no such amendment or
modification that would materially and adversely affect holders of one class or
series of Units in a manner different than holders of any other class or series
of Covered Securities shall be effective against the holders of such class or
group of Covered Securities without the prior written consent of (i) in the case
of Common Units or Class C Preferred Units, holders of at least a majority of
Securityholder Units of such class or group materially and adversely affected
thereby, (ii) in the case of Class B Preferred Units, at least 70% of
Securityholder Units of such
14
class or (iii) in the case of CSC Securities, holders of at least a majority of
the shares of Class B Stock comprising such CSC Securities. Notwithstanding the
foregoing, Schedule A hereto shall be amended to reflect the Units held by the
Securityholders following the consummation of the transactions contemplated by
the Redemption Agreement. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant, duty, agreement,
or condition.
12. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
13. Entire Agreement. Except as otherwise expressly set forth herein, this
Agreement embodies the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
14. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Securityholders and any
subsequent holders of Securityholder Units and the respective successors and
assigns of each of them, so long as they hold Securityholder Units; provided,
however, notwithstanding anything herein to the contrary, the rights of Messrs.
Xxxxxxxx Xxxxx and Xxxxxx Xxxxx and GIC and TCW/Crescent Purchasers under
Sections 1(a)(ii)(4) and 1(e) hereof, as applicable, shall not be assignable to
any other Person (other than to an Affiliate in the case of TCW/Crescent
Purchasers) except with the prior written consent of the Company.
15. Counterparts. This Agreement may be executed in multiple counterparts
(including by means of telecopied signature pages), each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
16. Remedies. The Company and the Securityholders shall be entitled to
enforce their rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages would not be an adequate remedy for any breach of the
provisions of this Agreement and that the Company or any Securityholder may in
its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
15
17. Notices. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or mailed first class mail (postage
prepaid) or sent by reputable overnight courier service (charges prepaid) to the
Company at the address set forth below, to each Executive at the address
indicated on the Schedule of Executives attached hereto, to GTCR-CLC and each
Investor at the address indicated on the Schedule of Investors attached hereto
and to any subsequent holder of Securityholder Units subject to this Agreement
at such address as indicated by the Company's records, or at such address or to
the attention of such other person as the recipient party has specified by prior
written notice to the sending party. Notices shall be deemed to have been given
hereunder when delivered personally, three days after deposit in the U.S. mail
and one day after deposit with a reputable overnight courier service. Notices
shall be sent to the Company and GTCR-CLC at the following addresses:
If to the Company:
Coinmach Holdings, LLC
x/x Xxxxxxxx Xxxxxxx Corporation
000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
with copies, which will not constitute notice to the Company, to:
GTCR Fund VII, L.P.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to GTCR-CLC:
GTCR-CLC, LLC
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy, which will not constitute notice to GTCR-CLC, to:
16
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
18. Governing Law. All issues and questions concerning the construction,
validity, interpretation and enforceability of this Agreement and the exhibits
and schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
19. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
* * * *
17
IN WITNESS WHEREOF, the parties hereto have executed this Securityholders
Agreement on the day and year first above written.
COINMACH HOLDINGS, LLC
By:______________________________________
Name: Xxxxxx X. Xxxxx
Its: Chief Financial Officer
COINMACH SERVICE CORP.
By:______________________________________
Name: Xxxxxx X. Xxxxx
Its: Chief Financial Officer
GTCR-CLC, LLC
By: GTCR Fund VII, L.P.
Its: Managing Member
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By:______________________________________
Name: Xxxxx X. Xxxxxxx
Its: Principal
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.L.C.,
as investment manager
By: TCW/Crescent Mezzanine, L.L.C., its
managing owner
By:______________________________________
Name:
Title:
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Ltd., as
general partner
By:______________________________________
Name:
Title:
By: TCW Investment Management Company,
as Investment Advisor
By:______________________________________
Name:
Title:
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (XXXX XX), L.P.,
as general partner
By: TCW Advisors (Bermuda), Ltd.,
as general partner
By: __________________________________________
Name:
Title:
By: TCW Investment Management Company,
as Investment Advisor
By: __________________________________________
Name:
Title:
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company, as Investment
Advisor
By: __________________________________________
Name:
Title:
By: TCW Asset Management Company, as managing
member
of TCW (XXXX XX), L.L.C., the general partner
By: __________________________________________
Name:
Title:
XXXXXXXXX & COMPANY, INC.
By: _________________________________________
Name:
Its:
FILBERT INVESTMENT PTE LTD.
By: _________________________________________
Name:
Title:
MCS CAPITAL, INC.
By: __________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
____________________________________
Xxxxxxx X. Xxxxxxxx
____________________________________
Xxxxxxxx Xxxxx
____________________________________
Xxxxxx X. Xxxxx
____________________________________
Xxxxxxx X. Xxxxxx
____________________________________
Xxxxx X. Xxxxxxx
SCHEDULE OF SECURITYHOLDERS
NUMBER AND CLASS OF
NAME SECURITYHOLDER UNITS
----------------------------------------------------------------- --------------------------
GTCR-CLC.......................................................... 56,258.12 Class C Preferred
116,133,474 Common
Filbert Investment Pte Ltd........................................ 28,221.94 Class C Preferred
15,384,615 Common
TCW Crescent Mezzanine Partners II, L.P........................... 9,086.27 Class C Preferred
4,953,193 Common
TCW Crescent Mezzanine Trust II................................... 2,202.51 Class C Preferred
1,200,655 Common
TCW Leverage Income Trust, L.P.................................... 940.73 Class C Preferred
512,821 Common
TCW Leveraged Income Trust II, L.P................................ 940.73 Class C Preferred
512,821 Common
TCW Leveraged Income Trust IV, L.P................................ 940.73 Class C Preferred
512,821 Common
Xxxxxxxxx & Company............................................... 484.43 Class C Preferred
1,000,000 Common
MCS Capital, Inc. (Xxxxxxx X. Xxxxxxxx)........................... 1,553.05 Class C Preferred
8,320,914 Common
Xxxxxxxx Xxxxx.................................................... 2,062.95 Class C Preferred
7,376,400 Common
Xxxxxxx X. Xxxxxx................................................. 197.83 Class C Preferred
2,058,122 Common
Xxxxxx X. Xxxxx................................................... 410.50 Class C Preferred
847,405 Common
Xxxxx X. Xxxxxxx.................................................. 59.09 Class C Preferred
756,436 Common
SCHEDULE OF EXECUTIVES
Name and Address
Xxxxxxx X. Xxxxxxxx
x/x Xxxxxxxx Xxxxxxx Corporation
000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxxxx Xxxxx
00 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxx
00 Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxx
c/o Coinmach Laundry Corporation
000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxxx
000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
SCHEDULE OF INVESTORS
FILBERT INVESTMENT PTE LTD
c/o GIC Special Investments
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
with a copy to:
Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
TCW LEVERAGE INCOME TRUST, L.P.
TCW LEVERAGED INCOME TRUST II, L.P.
TCW LEVERAGED INCOME TRUST IV, L.P.
x/x XXX Xxxxxxxx Xxxxxxxxx L.L.C.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxx X. Xxxxx
Gardere Xxxxx Xxxxxx LLP
0000 Xxx Xxxxxx
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
EXHIBIT A
CERTIFICATE OF TRANSFER
[Date]
[Coinmach Holdings, LLC]/
[Coinmach Service Corp.]
000 Xxxxxxxxx Xxxx., Xxxxx 00
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Dear Sirs:
In connection with the purchase or other acquisition by the undersigned of
the securities (the "OFFERED SECURITIES") of [Coinmach Holdings, LLC]/[Coinmach
Service Corp.] (the "COMPANY"), the undersigned hereby makes the following
representations, warranties and covenants to and for the benefit of the Company:
1. (A) the purchase or other acquisition by the undersigned of the Offered
Securities has not been registered under the United States Securities Act of
1933, as amended (the "SECURITIES ACT") by reason of the reliance on an
exemption from registration requirements under the Securities Act, (B) the
Offered Securities have been acquired solely by and for the undersigned and have
been acquired for investment purposes only, and are not being purchased or
otherwise acquired for subdivision, fractionalization, resale or distribution
and the undersigned has no contract, undertaking, agreement or arrangement to
sell, transfer or pledge to anyone else the Offered Securities (or any portion
thereof) which the undersigned has purchased or otherwise acquired, and the
undersigned has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement, (C) the undersigned understands and
agrees that the Offered Securities being sold or otherwise transferred to the
undersigned must be held indefinitely by the undersigned unless they are
subsequently registered under the Securities Act or a transfer or sale is made
pursuant to an exemption from such registration, including, for example,
pursuant to Rule 144 under the Securities Act and that the Company has no
agreements in respect of registering the Offered Securities under the Securities
Act, and (D) the undersigned's financial condition is such that the undersigned
is not under any present necessity or constraint, and does not foresee in the
future any necessity or constraint, to dispose of these Offered Securities to
satisfy any existing or contemplated debt or undertaking;
2. the undersigned understands that all certificates representing the
Offered Securities shall be endorsed as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AMENDED
AND RESTATED SECURITYHOLDERS AGREEMENT DATED AS OF NOVEMBER [__], 2004,
AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE
COMPANY'S SECURITYHOLDERS, AS
A-1
AMENDED AND MODIFIED FROM TIME TO TIME. A COPY OF SUCH SECURITYHOLDERS
AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER
HEREOF UPON WRITTEN REQUEST.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED FROM TIME TO TIME (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER."
3. the undersigned: (A) is aware of the Company's business affairs and
financial condition, (B) has made an informed and knowledgeable investment
decision with respect to its purchase or other acquisition of the Offered
Securities and (C) has such business and financial experience as is required to
give it the capacity to protect its own interests in connection with the
purchase or other acquisition of the Offered Securities;
4. the undersigned: (A) has not and will not solicit offers for, or offer
or resell, the Offered Securities by means of any general solicitation or
general advertising within the meaning of Rule 502(c) under Regulation D under
the Securities Act, and (B) has not engaged and will not engage in any directed
selling efforts with respect to the Offered Securities sold pursuant to
Regulation S under the Securities Act ("REGULATION S");
5. the undersigned will offer and sell the Offered Securities only: (A)
outside the United States to a person other than a "U.S. person" within the
meaning of Regulation S, not acting for the account or benefit of a "U.S.
person," which is acquiring Offered Securities in a transaction meeting the
requirements of Regulation S, (B) to institutional investors that are reasonably
believed by it to qualify as Qualified Institutional Buyers as that term is
defined in Rule 144A of the Securities Act ("RULE 144A") in transactions meeting
the requirements of Rule 144A, (C) in a transaction otherwise exempt from the
Securities Act, or (D) pursuant to registration under the Securities Act;
6. if the undersigned consummates a sale or other transfer of the Offered
Securities on or after the date hereof, prior to such sale or transfer it will
have obtained and delivered to the Company an executed certificate of transfer
in the form of this Certificate of Transfer (the "CERTIFICATE OF TRANSFER") for
the benefit of the Company from each purchaser or transferee of the Offered
Securities (each, a "SUBSEQUENT BUYER");
7. the undersigned understands that no public market now exists for the
Offered Securities and that the Company has made no assurances that a public
market will ever exist for any of the Offered Securities;
8. the undersigned has the legal capacity, power and authority to, and has
taken all corporate action necessary to, enter into and perform all of its
obligations under this Certificate of Transfer;
9. the execution, delivery and performance by the undersigned of this
Certificate of Transfer and each transaction contemplated by this Certificate of
Transfer as being performed by it will not violate a provision of its charter,
articles of organization, bylaws, constitution or other constituent or
organizational documents or any other agreement or document which is binding on
it or its assets;
10. in acquiring the Offered Securities, the undersigned has acquired all
of the outstanding securities of the Company (other than short-term paper) owned
or beneficially owned by the transferor,
A-2
or, if that is not the case, the undersigned will promptly notify the Company of
that fact prior to acquiring the Offered Securities and will assist the Company
as needed or requested for the Company to determine that the acquisition of the
Offered Securities by the undersigned would not require the Company to register
as an investment company under the United States Investment Company Act of 1940,
as amended (the "INVESTMENT COMPANY ACT");
11. (A) if the undersigned is a natural person, he or she has acquired the
Offered Securities solely for his or her own benefit, except that the
undersigned may have acquired the Offered Securities jointly with his or her
spouse; or (B) if the undersigned is not a natural person, (i) it was not formed
for the purpose of investing in the Company or to permit the Company to avoid
classification as an investment company under the Investment Company Act; (ii)
not more than 40% of its assets will be invested in interests of the Company;
(iii) it (as opposed to its equity owners or beneficial owners) is not making
this investment with a principal purpose of enabling the Company to avoid
"publicly traded" partnership status under the United States Internal Revenue
Code of 1986, as may be amended from time to time; (iv) it is not an "investment
company" within the meaning of the Investment Company Act and it also would not
be an investment company but for the exceptions to the definitions of investment
company provided by Sections 3(c)(1) or 3(c)(7) thereof; (v) the holders of
equity or beneficial interests in it are not able to decide individually whether
to participate, or the extent of their participation in the undersigned's
investment in the Company; (vi) it is not a "defined contribution plan" within
the meaning of the United States Employee Retirement Income Security Act of
1974, as amended, which allows participants to determine whether or how much
will be invested in investments on their behalf; and (vii) no persons other than
the undersigned will have a beneficial interest in the interests of the Company
being acquired pursuant to this Certificate of Transfer (other than as a
shareholder, partner or other beneficial owner of an equity interest in the
undersigned); or (C) if neither SUBCLAUSE (A) nor (B) is true as of the date of
transfer, the undersigned will promptly notify the Company of that fact prior to
acquiring the Offered Securities and will assist the Company as needed or
requested for the Company to determine that the acquisition of the Offered
Securities by the undersigned would not require the Company to register as an
investment company under the Investment Company Act;
12. (A) to the best knowledge of the undersigned, the acquisition of the
Offered Securities by it would not require the Company to register as an
investment company under the Investment Company Act; (B) at the time of
acquiring the Offered Securities, the undersigned agrees to provide promptly, at
the request of the Company, written certifications, representations and
warranties, financial statements and incorporation and operating documents that
would, in the sole discretion of the Company, provide reasonable assurances to
the Company that the beneficial ownership of the Offered Securities by the
undersigned would not require the Company to register as an investment company
under the Investment Company Act, and (C) the undersigned understands and
acknowledges that the Company will, and it authorizes the Company to, rely on
the representations, warranties, agreements and statements contained herein when
determining not to register as an investment company under the Investment
Company Act;
13. the undersigned agrees that (A) it will offer and sell, or otherwise
dispose of, the Offered Securities only in a transaction that it reasonably
believes would not require the Company to register as an investment company, and
any sale or other disposition that would require the Company to register as an
investment company shall be void ab initio; and (B) for so long as it holds
outstanding securities of the Company, not to do any act, or fail to do any act,
that would cause a reasonable person to believe that the Company might be
required to register as an investment company under the Investment Company Act;
and
14. this Certificate of Transfer has been duly and validly authorized,
executed and delivered by the undersigned and constitutes a valid and binding
obligation enforceable in accordance with its
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terms, subject to any necessary stamping and registration and to customary
insolvency and other qualifications with regard to the meaning of "enforceable".
[INSERT FOR TRANSFERS OF COINMACH SERVICE CORP. CLASS B COMMON STOCK: 15.
the undersigned understands and acknowledges that, under certain circumstances,
pursuant to Section 3.2.4 of the Company's Amended and Restated Certificate of
Incorporation, as amended or otherwise modified from time to time (the
"CHARTER"), transfers of the Company's Class B Common Stock to persons that are
not Class B Affiliates (as defined in the Charter) will result in the loss of
certain voting rights of all shares of the Company's Class B Common Stock.]
The undersigned understands and agrees that this Certificate of Transfer
must be executed by the undersigned and delivered to the Company prior to
consummation of the purchase or other acquisition of Offered Securities by it
and is intended, without limiting any other right or remedy in law or equity
available to the Company, to inure to the benefit of the Company and provide the
Company with a contractual right to take action against the undersigned to
enforce this Certificate of Transfer and obtain damages in the event of any
breach of the representations, warranties and covenants contained herein. The
Company may prohibit and implement "stop transfer" instructions against the
purchase or other acquisition by the undersigned if, in the Company's sole
discretion, this Certificate of Transfer is improperly executed or delivered or
the Company has reasonable knowledge that the representations and warranties
contained herein and made by the undersigned are inaccurate in any respect.
Prior to its purchase or acquisition of the Offered Securities, the undersigned
agrees that it must provide the Company with an opportunity to request, and if
the Company so requests, must obtain and deliver to the Company, a written
opinion of counsel satisfactory to the Company to the effect that the purchase
or other acquisition of the Offered Securities by the undersigned will not
violate or require registration under the Securities Act.
Very truly yours,
[_______________]
By: _______________________
Name:
Title:
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