EXHIBIT 16
INVESTOR PURCHASE AGREEMENT
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THIS AGREEMENT is made as of January 31, 1995, between The Coinmach
Corporation, a Delaware corporation (the "Company"), MCS Capital, Inc. (the
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"Purchaser"), Xxxxxxx X. Xxxxxxxx ( "Xxxxxxxx" ) and Golder, Thoma, Xxxxxxx,
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Xxxxxx Fund IV, L.P. ("GTCR").
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The Company and the Purchaser desire to enter into an agreement pursuant
to which the Purchaser will purchase, and the Company will issue, 268 shares of
the Company's Class A Common Stock, par value $0.01 per share (the "Class A
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Common Stock"). Certain definitions are set forth in Section 5 of this
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Agreement.
Simultaneously with the execution of this Agreement, (i) each of Xxxxxx
Financial, Inc. ("Xxxxxx"), Xxxxxxx National Life Insurance Company ("Xxxxxxx")
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and Xxxxxxx National Life Insurance Company of Michigan ("Jackson Michigan" and,
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together with Xxxxxx and Jackson, the "Lenders") are entering into investor
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purchase agreements (the "Other Investor Purchase Agreements") substantially
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similar to this Agreement pursuant to which Xxxxxx, Xxxxxxx and Jackson Michigan
will acquire shares of the Company's Class C Common Stock and (ii) each of the
President and Fellows of Harvard College ("Harvard"), MCS Capital Management,
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Inc. ("MCS Management"), Xxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxxxx Xxxxx ("Xxxxx")
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and Xxxxxxx X. Xxxxxx ("Xxxxxx") are entering into investor purchase agreements
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substantially similar to this Agreement pursuant to which Harvard, MCS
Management, Xxxxxxx, Xxxxx and Xxxxxx will also acquire shares of the Company's
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock").
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The Heller, Jackson, Jackson Michigan, MCS Management, Xxxxx, Harvard, Xxxxxxx
and Xxxxxx investor purchase agreements are referred to herein as the "Other
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Investor Purchase Agreements" and along with this Agreement as the "Investor
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Purchase Agreements."
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The execution and delivery of this Agreement by the Company and
Purchaser is a condition to the purchase of 72,516 shares of Class A Common
Stock by GTCR and certain shares of the Company's Class B Common Stock, par
value $0.01 per share (the "Class B Common Stock") by certain members of
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the Company's management pursuant to purchase agreements between the Company
and each of such Persons dated as of the date hereof (along with the Investor
Purchase Agreements, the "Purchase Agreements"). The
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Class A Common Stock, Class B Common Stock, Class C Common Stock and the
Company's Class D Common Stock, par value $0.01 per share (the "Class D Common
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Stock"), are hereinafter collectively referred to as the "Common Stock". Certain
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provisions of this Agreement are intended for the benefit of, and will be
enforceable by, GTCR.
The parties hereto agree as follows:
Section 1. Authorization and Closing
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1A. Authorization of the Stock. The Company shall authorize the issuance
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to Purchaser of 268 shares of Class A Common Stock having the rights set forth
in Exhibit A attached hereto.
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1B. Purchase and Sale of Investor Stock. At the Closing (as defined in
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Section 1C below), the Company shall sell to the Purchaser and, subject to the
terms and conditions set forth herein, the Purchaser shall purchase from the
Company 268 shares of the Class A Common at a price of $144.7964 per share.
1C. The Closing. The closing of the purchase and sale of the Stock
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(the "Closing") shall take place at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx
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Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 R at 10:00 a.m. on January 31, 1995, or
at such other place or on such other date as may be mutually agreeable to the
Company and the Purchaser. At the Closing, the Company shall deliver to the
Purchaser stock certificates evidencing the Class A Common to be purchased by
the Purchaser, registered in the Purchaser's name, upon payment of the purchase
price thereof by a cashier's or certified check, or by wire transfer of
immediately available funds to such account as designated by the Company in the
amount of $38,805.43.
Section 2. Representations and Warranties.
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2A. Representations and Warranties of Purchaser. In connection with the
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issuance of the Investor Stock hereunder, Purchaser and Xxxxxxxx represent and
warrant to the Company that, in each case, as of the Closing:
(i) The Class A Common Stock to be acquired by Purchaser pursuant to
this Agreement will be acquired for Purchaser's own account and not with a
view to, or intention of,
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distribution thereof in violation of the Securities Act, or any applicable
state securities laws, and such Class A Common Stock will not be disposed of
in contravention of the Securities Act or any applicable state securities
laws.
(ii) Xxxxxxxx and Xxxxxxx X. Xxxxxxxx ("Spouse") are the sole
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shareholders of MCS, with Xxxxxxxx owning of record and beneficially 200
shares of common stock owning of record and beneficially 200 shares of
commom, each free and clear of all liens, claims, charges, encumbrances,
voting agreements or restrictions of any kind. There are no options,
warrants, convertible securities or rights to acquire shares of MCS
outstanding and there are no agreements or arrangements to issue any of
the foregoing. MCS has conducted no business other than holding investment
securities and has no material liabilities.
(iii) Purchaser is able to bear the economic risk of its investment in
such Class A Common Stock for an indefinite period of time, and Purchaser
acknowledges that such Class A Common Stock has not been registered under
the Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration
is available.
(iv) Purchaser has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of such Class A
Common Stock and has had full access to such other information concerning
the Company as it has requested.
(v) This Agreement, the Stockholders Agreement and the Registration
Agreement constitute legal, valid and binding obligations of Purchaser or
Xxxxxxxx, as the case may be, enforceable in accordance with their terms,
and the execution, delivery and performance of this Agreement, the
Stockholders Agreement and the Registration Agreement by Purchaser or
Xxxxxxxx, as the case may be, does not and will not conflict with, violate
or cause a breach of any agreement, contract or instrument to which
Purchaser or Xxxxxxxx is a party or any law, rule, regulation, judgment,
order or decree to which Purchaser is subject.
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2B. Representations and Warranties of the Company. In connection with
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the issuance of the Investor Stock hereunder, the Company represents to
Purchaser that, in each case as of the Closing:
(i) Organization and Corporate Power. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of Delaware.
The Company has all requisite corporate power and authority to carry out the
transactions contemplated by this Agreement, the Purchase Agreements, the
Stockholders Agreement and the Registration Agreement (the "Investment
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Agreements"). The copies of the Company's Certificate of Incorporation and
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Bylaws which have been furnished to Purchaser's counsel reflect all
amendments made thereto at any time prior to the date of this Agreement and
are correct and complete.
(ii) Capital Stock and Related Matters.
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(a) As of the Closing and immediately thereafter, the authorized
capital stock of the Company shall consist of 10,000 shares which will
be designated as Preferred Stock and 108,150 shares of Common Stock, of
which 77,350 shares shall be designated as Class A Common Stock, 15,500
shares shall be designated Class B Common Stock, 7650 shares shall be
designated as Class C Common Stock and 7650 shares shall be designated
as Class D Common Stock. As of the Closing, the Company shall not have
outstanding any stock or securities convertible or exchangeable for any
shares of its capital stock or containing any profit participation
features, nor shall it have outstanding any rights or options to
subscribe for or to purchase its capital stock or any stock or
securities convertible into or exchangeable for its capital stock or any
stock appreciation rights or phantom stock plans other than pursuant to
and as contemplated by this Agreement, the Purchase Agreements, the
Stockholders Agreement and the Company's Certificate of Incorporation.
As of the Closing, the Company shall not be subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire
any shares of its capital stock or any warrants, options or other rights
to acquire its capital stock, except pursuant to this Agreement, the
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Stockholders Agreement and the Purchase Agreements. As of the Closing,
all of the outstanding shares of the Company's capital stock shall be
validly issued, fully paid and nonassessable.
(b) There are no statutory or contractual stockholders preemptive
rights or rights of refusal with respect to the issuance of the Common
Stock hereunder, except as provided herein and in the Stockholders
Agreement. The Company has not violated any applicable federal or state
securities laws in connection with the offer, sale or issuance of any of
its capital stock, and the offer, sale and issuance of the Common Stock
pursuant to this Agreement do not and will not require registration
under the Securities Act.
(iii) Conduct of Business; Liabilities. Other than in the course of the
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negotiation, execution and delivery of this Agreement, the Purchase
Agreements and the other agreements contemplated hereby and thereby, prior
to the Closing, the Company has not (i) conducted any business, (ii)
incurred any expenses, obligations or liabilities (whether accrued,
absolute, contingent, unliquidated or otherwise, whether or not known to the
Company and whether due or to become due and regardless of when asserted),
(iii) owned any assets, or (iv) entered into any contracts or agreements.
Section 3. Restrictions on Transfer.
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3A. Transfer of Investor Stock.
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(i) Subject to the restrictions set forth in the remainder of this
Section 3, Investor Stock is transferable only pursuant to (a) a Public
Offering registered under the Securities Act, (b) Rule 144 or Rule 144A of
the Securities and Exchange Commission (or any similar rule or rules then in
force) if such rule or rules are available or (c) subject to the conditions
specified in Section 3A(ii) below, any other legally available means of
transfer.
(ii) In connection with the transfer of any Investor Stock (other than a
transfer described in Section 3A(i)(a) or (b) above), the holder thereof
shall deliver written notice to
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the Company describing in reasonable detail the transfer or proposed
transfer, together with an opinion of counsel which (to the Company's
reasonable satisfaction) is knowledgeable in securities law matters to the
effect that such transfer of Investor Stock may be effected without
registration of such Investor Stock under the Securities Act. In addition,
if the holder of the Investor Stock delivers to the Company an opinion of
counsel that no subsequent transfer of such Investor Stock shall require
registration under the Securities Act, the Company shall promptly upon such
contemplated transfer deliver new certificates for such Investor Stock which
do not bear the Securities Act legend set forth in Section 4A hereof. If the
Company is not required to deliver new certificates for such Investor Stock
not bearing such legend, the holder thereof shall not transfer the same
until the prospective transferee has confirmed to the Company in writing its
agreement to be bound by the conditions contained in this Section and
Section 4A hereof.
(iii) Upon the request of the Purchaser, the Company shall promptly
supply to the Purchaser or its prospective transferees all information
regarding the Company required to be delivered in connection with a transfer
pursuant to Rule 144A of the Securities and Exchange Commission.
(iv) Any transfer or attempted transfer of any Investor Stock in
violation of any provision of this Agreement shall be void, and the Company
shall not record such transfer on its books or treat any purported
transferee of such Investor Stock as the owner of such Investor Stock for
any purpose.
3B. Sale Notice. Prior to making any direct or indirect Transfer of
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Investor Stock, including but not limited to, by transfer of any interest in any
of the Purchaser's securities, Purchaser will give written notice (the "Sale
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Notice") to the Company and GTCR. The Sale Notice will disclose in reasonable
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detail the number of shares to be transferred and the terms and conditions of
the proposed Transfer and, if known, the identity of the prospective
transferee(s). Purchaser will not consummate any such Transfer until 60 days
after the Sale Notice has been given to the Company and to GTCR, unless the
parties to the Transfer have been fully determined pursuant to this Section 3B
and Sections 3C and 3D prior to the expiration of such 60-day period. (The date
of
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the first to occur of such events is referred to herein as the "Authorization
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Date.")
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3C. First Refusal Rights. The Company may elect to purchase all (but not
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less than all) of the shares of Investor Stock to be transferred upon the same
terms and conditions as those set forth in the Sale Notice by delivering a
written notice of such election to Purchaser and GTCR within 30 days after the
Sale Notice has been given to the Company. If the Company has not elected to
purchase all of the Investor Stock to be transferred, GTCR may elect to purchase
all (but not less than all) of the Investor Stock to be transferred upon the
same terms and conditions as those set forth in the Sale Notice by giving
written notice of such election to Purchaser within 60 days after the Sale
Notice has been given to GTCR. If neither the Company nor GTCR elect to purchase
all of the shares of Investor Stock specified in the Sale Notice, Purchaser may
transfer the shares of Investor Stock specified in the Sale Notice at a price
and on terms no more favorable to the transferee(s) thereof than specified in
the Sale Notice during the 30-day period immediately following the Authorization
Date. Any shares of Investor Stock not transferred within such 30-day period
will be subject to the provisions of this Section 3C upon subsequent transfer.
3D. Co-Sale Rights.
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(i) GTCR may elect to participate in the contemplated Transfer by
delivering written notice to Purchaser within 90 days after delivery of the
Sale Notice to GTCR. If GTCR has elected to participate in such Transfer,
Purchaser and GTCR shall be entitled to sell in the contemplated Transfer,
on the same terms and at the price calculated pursuant to sub-paragraph
3D(ii) below, a number of shares equal to the product of (x) the quotient
determined by dividing the number of shares of Common Stock owned by such
person by the aggregate number of shares of Common Stock owned by Purchaser
and GTCR and (y) the number of shares to be sold in the contemplated
Transfer.
For example, if the Sale Notice contemplated a sale of 100 shares by
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Purchaser, and if Purchaser was at such time the owner of 30% of the
Company's Common Stock (on a fully-diluted basis) and if GTCR elected to
participate and GTCR owned 20%
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of the Company's Common Stock (on a fully-diluted basis), Purchaser would be
entitled to sell 60 shares (30% / 50% x 100 shares) and GTCR would be
entitled to sell 40 shares (20% / 50% x 100 shares).
Purchaser will use its best efforts to obtain the agreement of the
prospective transferee(s) to the participation of GTCR in the contemplated
transfer and will not transfer any Investor Stock to the prospective
transferee(s) if such transferee(s) refuses to allow the participation of
GTCR.
(ii) The purchase price to be paid by any transferee for shares of Class
A Common transferred in accordance with this paragraph 3D shall be equal
to the amount per share of Class A Common which such transferee has agreed
to pay to Purchaser.
Section 4. Additional Restrictions on Transfer of Investor Stock.
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4A. Legend. The Purchaser hereby represents that it is acquiring the
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Investor Stock purchased hereunder or acquired pursuant hereto for its own
account with the present intention of holding such securities for purposes of
investment, and that it has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable state
securities laws; provided that nothing contained herein shall prevent the
Purchaser and subsequent holders of Investor Stock from transferring such
securities in compliance with the provisions of Section 4 hereof. Each
certificate for Investor Stock shall be imprinted with a legend in substantially
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
AS OF JANUARY 31, 1995, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AND CERTAIN OTHER AGREEMENTS SET FORTH IN AN INVESTOR PURCHASE
AGREEMENT BETWEEN THE
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COMPANY AND CERTAIN INVESTORS, DATED AS OF JANUARY 31, 1995. A COPY OF
SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE ISSUER'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
4B. Opinion of Counsel. No holder of Investor Stock may sell, transfer
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or dispose of any Investor Stock (except pursuant to an effective registration
statement under the Securities Act) without first delivering to the Company an
opinion of counsel (reasonably acceptable in form and substance to the Company)
that (i) neither registration nor qualification under the Securities Act and
applicable state securities laws is required in connection with such transfer or
(ii) all such applicable registration and qualification requirements have been
satisfied.
Section 5 Definitions.
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"Investor Stock" means (i) the Class A Common issued hereunder and (ii)
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any Common Stock issued or issuable with respect to the Common Stock referred to
in clause (i) above by way of stock dividends or stock splits or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular shares of Investor Stock, such shares shall
cease to be Investor Stock when they have been (a) effectively registered under
the Securities Act and disposed of in accordance with the registration statement
covering them or (b) distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Securities Act (or any similar rule
then in force). Whenever any particular securities cease to be Investor Stock,
the holder thereof shall be entitled to receive from the Company, without
expense, new securities of like tenor not bearing a Securities Act legend of the
character set forth in Section 4A.
"Person" means an individual, a partnership, a corporation, an
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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 Offering" means the sale in an underwritten public offering
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registered under the Securities Act (other than on
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Form S-8 or a similar or successor form) of shares of the Company's Common Stock
approved by the Board.
"Public Sale" means any sale pursuant to a registered Public Offering
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under the Securities Act or any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker.
"Registration Agreement" means the Registration Agreement dated as of
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the date hereof among the Company, the Investors (as defined in that Agreement)
and Purchaser.
"Securities Act" means the Securities Act of 1933, as amended, or any
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similar federal law then in force.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
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amended, or any similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
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agency succeeding to the functions thereof.
"Stockholders Agreement" means the Stockholders Agreement dated as of
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the date hereof among the Company, the Investors (as defined in that Agreement)
and Purchaser.
"Transfer" means to sell, transfer, assign, pledge or otherwise dispose
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of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law) other than pursuant to a Public Sale or
Sale of the Company.
Section 6. Miscellaneous
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6A. Notices. Any notice provided for in this Agreement must be in
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writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to each person at the address set forth below:
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If-to the Company:
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The Coinmach Corporation
00 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: President
With a copy (which will constitute notice to the
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Company) to:
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Xxxxxxxx Kill Xxxxx & Xxxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Purchaser:
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MCS Capital, Inc.
c/o The Coinmach Corporation
00 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
With a copy (which will not constitute notice to
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Purchaser) to:
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Xxxxxxxx Kill Xxxxx & Xxxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to GTCR:
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Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
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with a copy (which will not constitute notice to
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GTCR) to:
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Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
6B. Transfers in Violation of Agreement. Any Transfer or attempted
-----------------------------------
Transfer of any Investor Stock in violation of any provision of this Agreement
shall be void, and the Company shall not record such Transfer on its books or
treat any purported transferee of such Investor Stock as the owner of such
stock for any purpose.
6C. Severability. Whenever possible, each provision of this
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Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
6D. Complete Agreement. This Agreement, those documents expressly
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referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior summaries of terms and conditions, understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
6E. Counterparts. This Agreement may be executed in separate
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counterparts, each of which is deemed to be an original
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and all of which taken together constitute one and the same agreement.
6F. Successors and Assigns. Except as otherwise provided
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herein, this Agreement shall bind Purchaser and the Company and their respective
successors and permitted assigns and inure to the benefit of and be enforceable
by Purchaser, the Company, GTCR and their respective successors and permitted
assigns (including in each case subsequent holders of Purchaser's Stock);
provided that Purchaser may not assign any of its rights under any provision of
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this Agreement except as part of a Transfer of Investor Stock in accordance with
Section 3.
6G. Choice of Law. The corporate law of the State of
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Delaware will govern all questions concerning the relative rights of the Company
and its stockholders. All other questions concerning the construction,
validity and interpretation of this Agreement and the exhibits hereto will be
governed by and construed in accordance with the internal laws of the State of
Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Illinois.
6H. Remedies. Each holder of Investor Stock shall have
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all rights and remedies set forth in this Agreement and the Certificate of
Incorporation and all rights and remedies which such holders have been granted
at any time under any other agreement or contract and all of the rights which
such holders have under any law. Any Person having any rights under any
provision of this Agreement shall be entitled to enforce such rights
specifically (without posting a bond or other security), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
6I. Amendment and Waiver. Except as otherwise expressly
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provided herein, the provisions of this Agreement may be amended or modified
only by written agreement of the Company, Purchaser and GTCR. No other course of
dealing between the parties or third party beneficiaries hereof or any delay
in exercising any rights hereunder shall operate as a waiver of any rights of
any such holders.
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6J. Survival of Representations and Warranties. All
------------------------------------------
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by Purchaser or on its behalf or by the
Company or on its behalf.
6K. Business Days. If any time period for giving notice
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or taking action hereunder expires on a day which is a Saturday, Sunday or
holiday in the state in which the Company's chief executive office is located,
the time period shall be automatically extended to the business day immediately
following such Saturday, Sunday or holiday.
6L. Descriptive Headings; Interpretation. The descriptive
------------------------------------
headings of this Agreement are inserted for convenience only and do not
constitute a Section of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
THE COINMACH CORPORATION
By /s/ XXXXXXX X. XXXXXXXX
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Its Chief Executive Officer
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GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GTCR IV, L.P.
Its: General Partner
By: Golder, Thoma, Cressey,
Rauner, Inc.
Its: General Partner
By: /s/ XXXX X. XXXXXX
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Its: Principal
MCS CAPITAL, INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Its: President
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
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