L&W DRAFT 7/29/97
$___,000,000
QUAKER HOLDING CO.
___ Units Consisting of
__% Senior Discount Debentures due 2008 and
____ Warrants to Purchase ___ Shares of Common Stock
UNDERWRITING AGREEMENT
July __, 1997
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Quaker Holding Co., a Delaware corporation ("QUAKER"),
proposes to issue and sell ___ units (the "Units"), each consisting of $1,000
principal amount at maturity of __% Senior Discount Debentures due 2008 (the
"DEBENTURES") and __ warrants (the "WARRANTS") to purchase __ shares of common
stock of the Company (as defined herein), par value $.01 per share (the "COMMON
STOCK"), to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation ("YOU" or the
"UNDERWRITER"). The Debentures are to be issued pursuant to the provisions of
an indenture to be dated as of August __, 1997 (the "INDENTURE") between Quaker
and State Street Bank and Trust Company, as Trustee (the "TRUSTEE"). The
Warrants will be issued pursuant to a warrant agreement to be dated as of
August __, 1997 (the "WARRANT AGREEMENT") between Quaker and State Street Bank
and Trust Company, as warrant agent (the "WARRANT AGENT"). Shares of common
stock of the Company issuable upon exercise of the Warrants are collectively
referred to herein as (the "WARRANT SHARES"). The Debentures and the Warrants
will not be separately transferable until the earliest to occur of (i) ____,
1998, (ii) the occurrence of a Change of Control (as defined in the Indenture)
and (iii) the date specified by the Underwriter (the "SEPARATION DATE"). The
Units, the Debentures, the Warrants and the Warrant Shares are collectively
referred to herein as the "SECURITIES." Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Indenture.
The Units are being issued and sold in connection with the
execution of an Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated as
of May 4, 1997, by and between Quaker and DecisionOne Holdings Corp., a
Delaware corporation ("HOLDINGS"). The Merger Agreement provides, among other
things, for the merger of Quaker with and into Holdings (the "MERGER"). At the
effective time of the Merger (the "Effective Time"), Holdings will assume and
succeed to the obligations of Quaker hereunder and under the Indenture, the
Warrant Agreement, the Debentures, the Warrants and the Warrant Shares. As used
herein, the "COMPANY" shall refer to Quaker prior to the Merger and to Holdings
immediately following the Effective Time.
In order to fund the payment of the cash portion of the
Merger Consideration (as defined in the Prospectus (as defined below)), the
Option Cash Proceeds (as defined in the Prospectus) and the Warrant Cash
Proceeds (as defined in the Prospectus), to refinance $____ million of
outstanding indebtedness (the "REFINANCING") of DecisionOne Corporation, a
wholly owned subsidiary of Holdings ("DECISIONONE CORP."), and to pay expenses
incurred in connection with the Merger, (i) DecisionOne Corp. (A) is issuing
$150 million in aggregate principal amount of __% Senior Subordinated Notes due
2007 (the "NOTES"), and (B) will enter into a syndicated senior secured loan
facility (the "NEW CREDIT FACILITY") providing for term loan borrowings in the
aggregate principal amount of approximately $470 million and revolving loan
borrowings of approximately $105 million, (ii) Quaker will issue the Units and
(iii) the DLJMB Funds (as defined in the Prospectus) and the Institutional
Investors (as defined in the Prospectus) will purchase 9,782,508 shares of
common stock of Quaker and may acquire up to 1,417,180 DLJMB Warrants (as
defined in the Prospectus) for an aggregate of approximately $225 million (the
"EQUITY INVESTMENT"). At the effective time of the Merger (the "EFFECTIVE
TIME"), the Company will borrow all term loans available under the New Credit
Facility and [$8.3 million] of revolving loans available thereunder.
Approximately $___ million of the proceeds of such borrowings and the proceeds
from the sale of Notes will be distributed to Holdings in the form of a
dividend and the remaining $____ million will be loaned to Holdings pursuant to
an intercompany note (the "INTERCOMPANY NOTE"). In addition, at the Effective
Time, each share of common stock of Quaker will become one share of common
stock of Holdings ("HOLDINGS COMMON STOCK"), each warrant to acquire common
stock of Quaker will by its terms become exercisable for an equal number of
shares of Holdings Common Stock and Holdings will assume and succeed to the
obligations of Quaker with respect to the Debentures, the Warrants and the
DLJMB Warrants.
SECTION 1. Registration Statement and Prospectus. Quaker has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-1, including a
prospectus, relating to the Units. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Act, is hereinafter referred to as the "REGISTRATION
STATEMENT;" and the prospectus in the form first used to confirm sales of the
Units is hereinafter referred to as the "PROSPECTUS." If Quaker has filed, or
is required pursuant to the terms hereof to file, a registration statement
pursuant to Rule 462(b) under the Act registering
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additional Securities (a "RULE 462(B) REGISTRATION STATEMENT"), then, unless
otherwise specified, any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462(b) Registration Statement.
SECTION 2. Agreements to Sell and Purchase. On the basis of
the representations and warranties contained in this Agreement, and subject to
its terms and conditions, Quaker agrees to issue and sell, and the Underwriter
agrees to purchase from Quaker all of the Units at a price equal to $____ per
Unit (the "PURCHASE PRICE").
SECTION 3. Terms of Public Offering. The Company is advised
by you that you propose (1) to make a public offering of the Units as soon
after the execution and delivery of this Agreement as in your judgment is
advisable and (2) initially to offer the Units upon the terms set forth in the
Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriter
of and payment for the Units shall be made at 10:00 A.M., New York City time,
on August 7, 1997 (the "CLOSING DATE") at such place as you shall designate.
The Closing Date and the location of delivery of and payment for the Units may
be varied by agreement between you and Quaker.
Certificates for the Units, the Debentures and the Warrants
shall be registered in such names and issued in such denominations as you shall
request in writing not later than two full business days prior to the Closing
Date. Such certificates shall be made available to you for inspection not later
than 9:30 A.M., New York City time, on the business day prior to the Closing
Date. Certificates in definitive form evidencing the Units, the Debentures and
the Warrants will be delivered to you on the Closing Date with any transfer
taxes thereon duly paid by Quaker, for your account, against payment to Quaker
of the Purchase Price therefor by wire transfer of Federal or other funds
immediately available in New York City.
SECTION 5. Agreements of Company. The Company agrees with
you:
(a) To advise you promptly and, if requested by you, to
confirm such advice in writing, (1) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (2) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
of the suspension of qualification of the Securities for offering or sale in
any jurisdiction, or the initiation of any proceeding for such purposes, (3)
when any amendment to the Registration Statement becomes effective, (4) if
Quaker is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, when the Rule 462(b) Registration Statement
has become effective and (5) of the happening of any event during the period
referred to in Section 5(d) below which makes any statement of a material fact
made in the Registration Statement or the Prospectus untrue or which requires
any additions to or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
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(b) To furnish to you three signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits, and to furnish to you such number of conformed copies
of the Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(c) To prepare the Prospectus in a form approved by you and
to file the Prospectus in such form with the Commission within the applicable
period specified in Rule 424(b) under the Act; not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised or to which you shall reasonably object after being so advised; and to
prepare and file with the Commission, promptly upon your reasonable request,
any amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its best efforts to cause any
such amendment to the Registration Statement to become promptly effective.
(d) Prior to 4:00 P.M., New York City time, on the first
business day after the date of this Agreement and from time to time thereafter
for such period as in the opinion of counsel for the Underwriter a prospectus
is required by law to be delivered in connection with sales by the Underwriter
or a dealer, to furnish in New York City to the Underwriter and any dealer as
many copies of the Prospectus (and of any amendment or supplement to the
Prospectus) as the Underwriter or any such dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel for the Underwriter, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriter, it is necessary to amend
or supplement the Prospectus to comply with applicable law, forthwith to
prepare and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law, and to furnish to the Underwriter and to any dealer as many copies thereof
as the Underwriter or any such dealer may reasonably request.
(f) Prior to any public offering of the Units, to cooperate
with you and counsel for the Underwriter in connection with the registration or
qualification of the Units for offer and sale by you and by dealers under the
state securities or Blue Sky laws of such jurisdictions as you may request, to
continue such qualification in effect so long as required for distribution of
the Units and to file such consents to service of process or other documents as
may be necessary in order to effect such registration or qualification;
provided, however, that Quaker shall not be required in connection therewith to
register or qualify as a foreign corporation in any jurisdiction in which it is
not now so qualified or to take any action that would subject it to general
consent to service of process or taxation other than as to matters and
transactions relating to the Prospectus, the Registration Statement, any
preliminary prospectus or the offering or sale of the Securities, in any
jurisdiction in which it is not now so subject.
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(g) To mail and make generally available to its security
holders as soon as practicable an earnings statement covering the twelve-month
period ending ______________, that shall satisfy the provisions of Section
11(a) of the Act, and to advise you in writing when such statement has been so
made available.
(h) So long as any of the Securities are outstanding,to mail
and make generally available as soon as practicable after the end of each
fiscal year to the record holders of the Securities (1) all documents filed
with the Commission by the Company pursuant to Sections 13, 14 and 15 of
Securities Exchange Act of 1934, as amended (the "Reports"), which requirement
to furnish shall be deemed satisfied upon the filing of such Reports with the
Commission and (2) for any period during which the Company no longer files such
Reports with the Commission, to mail and make generally available to the record
holders of the Securities the information that would otherwise be included in
Reports as soon as reasonably available.
(i) So long as any of the Securities are outstanding, to
furnish to you as soon as available copies of all reports or furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of Holdings is listed and such other publicly available
information concerning Holdings and its subsidiaries as you may reasonably
request.
(j) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to
be paid all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the registration and
delivery of the Units under the Act and all other fees or expenses in
connection with the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits), any
preliminary prospectus, the Prospectus and all amendments and supplements to
any of the foregoing prior to or during the period specified in Section 5(d),
including the mailing and delivering of copies thereof to the Underwriter and
dealers in the quantities specified herein, (ii) all costs and expenses related
to the transfer and delivery of the Units to the Underwriter, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Units, (iv) all expenses
in connection with the registration or qualification of the Units for offer and
sale under the securities or Blue Sky laws of the several states and all costs
of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in
connection therewith (including the filing fees and fees and disbursements of
counsel for the Underwriter in connection with such registration or
qualification and memoranda relating thereto), (v) the filing fees and
disbursements of counsel for the Underwriter in connection with the review and
clearance of the offering of the Units by the National Association of
Securities Dealers, Inc., (vi) the cost of printing certificates representing
the Units, the Debentures and the Warrants, (vii) the costs and charges of any
transfer agent, registrar and/or depositary (including the Depository Trust
Company), (viii) the fees and expenses of the qualified independent underwriter
(the "QIU") (including the fees and disbursements of counsel to the QIU), (ix)
any fees charged by rating agencies for the rating of the Units, (x) the fees
and expenses of the Trustee and the Trustee's counsel in connection with the
Indenture and the Debentures, (xi) the fees and expenses of the Warrant Agent
and the Warrant Agent's counsel
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in connection with the Warrant Agreement and the Warrants and (xii) all other
costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section.
(k) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any securities of Quaker or Holdings
or any warrants, rights or options to purchase or otherwise acquire securities
of Quaker or Holdings substantially similar to the Units, Debentures, Warrants
or Common Stock (other than (1) the Units, Debentures, Warrants or Warrant
Shares, and (2) commercial paper issued in the ordinary course of business),
without the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation.
(l) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of the
Debentures.
(m) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Units.
(n) If the Registration Statement at the time of the
effectiveness of this Agreement does not cover all of the Units, to file a Rule
462(b) Registration Statement with the Commission registering the Units not so
covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on
the date of this Agreement and to pay to the Commission the filing fee for such
Rule 462(b) Registration Statement at the time of the filing thereof or to give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
(o) The Company will, for so long as any of the Securities
are outstanding and if, in the reasonable judgment of the Underwriter or its
counsel, the Underwriter or any of its affiliates (as defined in the rules and
regulations under the Act) is required to deliver a prospectus (any such
prospectus, a "MARKET MAKING PROSPECTUS") in connection with sales of the
Securities, to (i) provide the Underwriter, without charge, as many copies of
the Market Making Prospectus as the Underwriter may reasonably request, (ii)
periodically amend the Registration Statement so that the information contained
in the Registration Statement complies with the requirements of Section 10(a)
of the Act, (iii) amend the Registration Statement or amend or supplement the
Market Making Prospectus when necessary to reflect any material changes in the
information provided therein and promptly file such amendment or supplement
with the Commission, (iv) provide the Underwriter with copies of each amendment
or supplement so filed and such other documents, including opinions of counsel
and "comfort" letters, as the Underwriter may reasonably request and (iv)
indemnify the Underwriter with respect to the Market Making Prospectus and if
applicable, contribute to any amount paid or payable by the Underwriter in a
manner substantially identical to that specified in Section 7 hereof (with
appropriate modifications). The Company consents to the use, subject to the
provisions of the Act and the state securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the Underwriter, of each
Market Making Prospectus.
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SECTION 6. Representations and Warranties of the Company. The
Company represents and warrants to the Underwriter that:
(a) The Registration Statement has become effective (other
than any Rule 462(b) Registration Statement to be filed by the Company after
the effectiveness of this Agreement); any Rule 462(b) Registration Statement
filed after the effectiveness of this Agreement will become effective no later
than 10:00 P.M., New York City time, on the date of this Agreement; and no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement), when it became effective, did not contain
and, as amended, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Registration
Statement (other than any Rule 462(b) Registration Statement to be filed by the
Company after the effectiveness of this Agreement) and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Act, (iii) if the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such Rule
462(b) Registration Statement and any amendments thereto, when they become
effective (A) will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (B) will comply in all material respects
with the Act and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to the
Underwriter furnished to the Company in writing expressly for use therein nor
to that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The Company hereby acknowledges that the only
information furnished to the Company by the Underwriter for use in the
Registration Statement and the Prospectus is the information contained under
the caption "Underwriting."
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in any preliminary prospectus based upon information
relating to the Underwriter furnished to the Company in writing by you
expressly for use therein. The Company hereby acknowledges that the only
information furnished to Quaker by the Underwriter for use in the Registration
Statement, the Prospectus and each preliminary prospectus filed as part of the
Registration Statement is the information contained under the caption
"Underwriting."
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(d) Quaker does not have any direct or indirect subsidiaries.
(e) Immediately subsequent to the Effective Time, the
entities listed on Schedule I hereto will be the only direct or indirect
subsidiaries of Holdings. No subsidiary listed on Schedule I hereto, other than
[DecisionOne Corp., Properties Holding Corporation and Properties Development
Corporation] (collectively, the "Subsidiaries"), has (i) contributed in any of
the last three fiscal years or in the three-month period ended March 31, 1997
greater than 10% of the Holdings' consolidated revenues, EBITDA (as defined in
the Prospectus) or net income or (ii) at any of December 31, 1996 or March 31,
1997 constituted greater than 10% of the total assets of Holdings.
(f) The Company is and, immediately subsequent to the
Effective Time, will be duly incorporated and validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation and has
and, immediately subsequent to the Effective Time, will have the corporate
power and authority to carry on its business as described in the Prospectus and
to own, lease and operate its properties, and is and, immediately subsequent to
the Effective Time, will be duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not reasonably
be expected to (i) have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, or (ii) in any manner draw into question the
validity of (I) this Agreement, the Indenture, the Warrant Agreement or the
Securities or (II) the Debenture Assumption (as defined herein), the Warrant
Assumption (as defined herein), the Intercompany Note, the Merger Agreement,
the Tax Sharing Agreement (as defined in the Indenture) or the Investors'
Agreement (as defined in the Indenture) (each of the documents referred to in
this clause II, the "OPERATIVE DOCUMENTS") (the events referred to in clauses
(i) and (ii), a "MATERIAL ADVERSE EFFECT").
(g) All of the outstanding shares of capital stock of the
Company have been and, immediately subsequent to the Effective Time, will have
been duly authorized and validly issued and are and, immediately subsequent to
the Effective Time, will be fully paid, non-assessable and not subject to any
preemptive or similar rights.
(h) Except as otherwise set forth in the Prospectus,
immediately subsequent to the Effective Time, the outstanding shares of capital
stock of the subsidiaries of Holdings are owned by Holdings, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature (each, a
"LIEN").
(i) The Indenture has been duly qualified under the Trust
Indenture Act, and, on the Closing Date, will have been duly authorized,
executed and delivered by Quaker and will be a valid and binding agreement of
Quaker, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
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(j) Immediately subsequent to the Effective Time, the
Indenture and the Debenture Assumption will be duly authorized by Holdings and,
when the Debenture Assumption is executed and delivered in accordance with the
terms of the Indenture, the Indenture will be the legally valid and binding
obligation of Holdings, enforceable against Holdings in accordance with its
terms, except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(k) Quaker has duly and validly authorized the issuance of
the Debentures and the Warrants as a Unit. The Debentures have been duly
authorized and, on the Closing Date, will have been validly executed and
delivered by Quaker. When the Debentures have been executed and authenticated
in accordance with the provisions of the Indenture and delivered to and paid
for by the Underwriter in accordance with the terms of this Agreement, the
Debentures will be entitled to the benefits of the Indenture and will be valid
and binding obligations of Quaker, enforceable in accordance with their terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(l) Immediately subsequent to the Effective Time, the Units
will be duly authorized by Holdings. Immediately subsequent to the Effective
Time, the Debentures and the Debenture Assumption will be duly authorized by
Holdings and, when the Debenture Assumption is executed and delivered in
accordance with the terms of the Indenture, will be the legally valid and
binding obligations of Holdings, enforceable against Holdings in accordance
with their terms except (a) as such enforcement may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(m) The Warrant Agreement has been duly authorized by Quaker
and, on the Closing Date, will have been validly executed and delivered by
Quaker. When the Warrant Agreement has been validly executed and delivered, the
Warrant Agreement will constitute the valid and binding agreement of Quaker,
enforceable against Quaker in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(n) Immediately subsequent to the Effective Time, the Warrant
Agreement and the Warrant Assumption will be duly authorized by Holdings and,
when the Warrant Assumption (as defined herein) is executed and delivered in
accordance with the terms of the Warrant Agreement, the Warrant Agreement will
constitute the valid and binding agreement of Holdings, enforceable against
Holdings in accordance with its terms except as (a) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
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(o) The Warrants have been duly authorized by Quaker and, on
the Closing Date, will have been validly delivered by Quaker. When the Warrants
have been validly issued and countersigned, the Warrant Agreement has been
validly executed and delivered and upon delivery to the Underwriter against
payment therefor in accordance with the terms hereof, the Warrants will be
entitled to the benefits of the Warrant Agreement and will be valid and binding
obligations of Quaker, enforceable against Quaker in accordance with their
terms except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(p) Immediately subsequent to the Effective Time, the
Warrants and the Warrant Assumption will be duly authorized by Holdings and
when the Warrant Assumption is executed and delivered in accordance with the
terms of the Warrant Agreement, the Warrants will be valid and binding
obligations of Holdings enforceable against Holdings in accordance with their
terms except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(q) Quaker has and, immediately subsequent to the Effective
Time, Holdings will have duly authorized and reserved for issuance the Warrant
Shares to be issued upon the exercise of the Warrants and, when issued and
delivered upon the exercise of the Warrants against payment of the exercise
price as provided in the Warrant Agreement, the Warrant Shares will have been
validly issued and will be fully paid and non assessable, and the issuance of
the Warrant Shares will not be subject to any preemptive or similar rights.
(r) The Securities conform as to legal matters to the
description thereof contained in the Prospectus.
(s) All of the indebtedness represented by the Debentures, is
being incurred, and all of the indebtedness being repaid in the Refinancing was
incurred, for proper purposes and in good faith and Holdings was, at the time
of the incurrence of the indebtedness being repaid in the Refinancing, and that
both as of the date hereof and, immediately subsequent to the Effective Time
and the transactions contemplated hereby and by each of the Operative
Documents, (a) the fair value and present fair saleable value of the Company's
assets exceeds and would exceed its stated liabilities and identified
contingent liabilities, (b) the Company should be able to pay its debts as they
become absolute and matured and (c) the capital of the Company is not and would
not be unreasonably small for the business in which it is engaged and for the
business proposed to be conducted after consummation of the Merger.
(t) The Company is not and, immediately subsequent to the
Effective Time, the Company and each of its Subsidiaries will not be in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to the Company and each of its Subsidiaries, taken as a whole, any
such person, to which such entity is a party or by which any such person or its
respective property is bound.
10
(u) The execution, delivery and performance of this
Agreement, the Indenture, the Warrant Agreement, the Securities and the
Operative Documents by the Company, and compliance by the Company with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states) and will not conflict with
or constitute a breach of any of the terms or provisions of, or a default
under, the charter or by-laws of the Company or any of its Subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its Subsidiaries, taken as a whole, to
which the Company or any of its Subsidiaries is or, immediately subsequent to
the Effective Time, will be a party or by which the Company or any of its
Subsidiaries or their respective property is or, immediately subsequent to the
Effective Time, will be bound, or violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company or any of its
Subsidiaries or their respective property.
(v) When executed and delivered by the Company and the other
parties thereto, each of the Operative Documents will be the valid and legally
binding obligation of the Company enforceable against the Company, and to the
best of the Company's knowledge, each of the other parties thereto, in
accordance with its respective terms, except as (a) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting the
creditors' rights generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(w) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the execution, delivery and performance of any of
this Agreement, the Indenture, the Debentures, the Warrant Agreement, the
Warrants, the Warrant Shares or any of the Operative Documents or the issuance
of the Securities, or suspends the sale of the Securities in any jurisdiction
referred to in Section 5(f); and no injunction, restraining order or other
order or relief of any nature by a federal or state court or other tribunal of
competent jurisdiction has been issued with respect to the Company which would
prevent or suspend the issuance or sale of the Securities in any jurisdiction
referred to in Section 5(f).
(x) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries, is or could be a
party or to which any of their respective property is or could be subject that
are required to be described in the Registration Statement or the Prospectus
and are not so described; nor are there any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required.
(y) The Company has not and, immediately subsequent to the
Effective Time, none of the Company or any of its Subsidiaries will have
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or
11
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS") or any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect except as otherwise set forth in the
Prospectus.
(z) Except as otherwise set forth in the Prospectus, there
are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws or any
Authorization (as defined below), any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect or except as otherwise set
forth in the Prospectus.
(aa) The Company has, and immediately subsequent to the
Effective Time, each of the Company and its subsidiaries will have such
permits, licenses, consents, exemptions, franchises, authorizations and other
approvals (each an "AUTHORIZATION") of, and has and, immediately subsequent to
the Effective Time, will have made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and
all courts and other tribunals, including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease, license and
operate its respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a Material Adverse Effect. Each
such Authorization is and, immediately subsequent to the Effective Time, will
be valid and in full force and effect and the Company is and, immediately
subsequent to the Effective Time, each of the Company and its Subsidiaries will
be in compliance with all the terms and conditions thereof and with the rules
and regulations of the authorities and governing bodies having jurisdiction
with respect thereto; and no event has occurred (including, without limitation,
the receipt of any notice from any authority or governing body) which allows
or, after notice or lapse of time or both, would allow, revocation, suspension
or termination of any such Authorization or results or, after notice or lapse
of time or both, would result in any other impairment of the rights of the
holder of any such Authorization; and such Authorizations contain no
restrictions that are or, immediately subsequent to the Effective Time, will be
burdensome to the Company or any of its Subsidiaries, except in both
circumstances where such failure to be valid and in full force and effect or to
be in compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(ab) This Agreement has been duly authorized, executed and
delivered by Quaker.
(ac) Deloitte & Touche LLP are independent public accountants
with respect to each of Quaker and Holdings as required by the Act.
(ad) The consolidated historical financial statements of
Holdings, together with related schedules and notes forming part of the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), present fairly in all material respects the consolidated historical
financial position, results of operations and changes in financial position of
Holdings
12
and its subsidiaries on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; such
historical statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the other
historical financial information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are, in
all material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of Holdings, except as
otherwise disclosed therein.
(ae) The Company is not and, immediately subsequent to the
Effective Time, the offering and sale of the Units and the application of the
proceeds thereof and the other transactions contemplated by this Agreement and
the Operative Documents, the Company will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(af) Except (a) as otherwise set forth in the Prospectus and
(b) for the registration rights agreement, dated as of January 27, 1994, among
Onset Corporation and the security holders party thereto, there are and,
immediately subsequent to the Effective Time, will be no contracts, agreements
or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the Act
with respect to any securities of the Company or to require the Company to
include such securities with the Units registered pursuant to the Registration
Statement.
(ag) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or operations of
Quaker or Holdings and its Subsidiaries, taken as a whole, (ii) there has not
been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the consolidated long-term
debt of Quaker or Holdings or any of its Subsidiaries and (iii) none of Quaker,
Holdings nor any of its subsidiaries has incurred any material liability or
obligation, direct or contingent which are material to the Company and its
Subsidiaries, taken as a whole.
(ah) Quaker, Holdings and Holdings' Subsidiaries have each
complied with all provisions of Section 517.075, Florida Statutes (Chapter
92-198, Laws of Florida).
(ai) The pro forma financial statements and the related notes
thereto set forth in the Registration Statement and the Prospectus (and any
supplement or amendment thereto) have been prepared on a basis consistent with
the historical financial statements of Holdings and its subsidiaries, give
effect to the assumptions used in the preparation thereof on a reasonable basis
and in good faith and present fairly in all material respects the historical
and proposed transactions contemplated by the Registration Statement and the
Prospectus as and to the extent set forth in the notes thereto. Such pro forma
financial statements have been prepared in accordance with the applicable
requirements of Rule 11-02 of Regulation S-X promulgated by
13
the Commission. The other pro forma financial and statistical information and
data set forth in the Registration Statement and the Prospectus (and any
supplement or amendment thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with the pro forma financial
statements except as disclosed therein.
(aj) There is and, immediately subsequent to the Effective
Time, will be no (i) material unfair labor practice complaint, grievance or
arbitration proceeding pending or threatened against the Company before the
National Labor Relations Board or any state or local labor relations board or
(ii) strike, labor dispute, slowdown or stoppage pending or threatened against
the Company, except for such actions specified in clause (i) or (ii) above,
which, singly or in the aggregate, would not have a Material Adverse Effect. To
the best of the Company's knowledge, no collective bargaining organizing
activities are taking place with respect to the Company.
(ak) The Company maintains and, immediately subsequent to the
Effective Time, the Company and each of its subsidiaries will maintain a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(al) Except as otherwise set forth in the Prospectus, the
Company and its Subsidiaries own or possess and, immediately subsequent to the
Effective Time, will own or possess o can or, immediately subsequent to the
Effective Time, could acquire on reasonable terms, all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names ("intellectual
property") currently employed by them in connection with the business now
operated by them except where the failure to own or possess or otherwise be
able to acquire such intellectual property would not, singly or in the
aggregate, have a Material Adverse Effect; and, to the best of the Company's
knowledge, none of the Quaker Holdings or any of its subsidiaries has received
any notice of infringement of or conflict with asserted rights of others with
respect to any of such intellectual property which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(am) Each certificate signed by any officer of the Company,
and delivered to the Underwriter or counsel for the Underwriter shall be deemed
to be a representation and warranty by the Company to the Underwriter as to the
matters covered thereby.
SECTION 7. Indemnification. (a) The Company agrees to
indemnify and hold harmless the Underwriter, its directors, its officers and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), from and against any and all losses,
14
claims, damages, liabilities and judgments (including, without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action, that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission (i) based
upon information relating to the Underwriter furnished in writing to the
Company by the Underwriter expressly for use therein or (ii) that is contained
in part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act. The foregoing indemnity
agreement with respect to any untrue statement contained in or omission from a
preliminary prospectus shall not inure to the benefit of an Underwriter from
whom the person asserting any such losses, liabilities, claims, damages or
expenses purchased Units, or any director or officer of or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented, if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if such is required by law, at or prior to the written confirmation of
the sale of such Units to such person and the untrue statement contained in or
omission from such preliminary prospectus was corrected in the Prospectus (or
the Prospectus as amended or supplemented).
(b) The Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to such Underwriter but only with
reference to information relating to such Underwriter furnished in writing to
the Company by or on behalf of the Underwriter expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 7(a) or
7(b) (the "INDEMNIFIED PARTY"), the Indemnified Party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the Indemnifying Party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all reasonable fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 7(a) and 7(b), the Underwriter shall
not be required to assume the defense of such action pursuant to this Section
7(c), but may employ separate counsel and participate in the defense thereof,
but the fees and expenses of such counsel, except as provided below, shall be
at the expense of the Underwriter) subject to repayment to the Indemnifying
Party if it is finally judicially determined by a court of competent
jurisdiction that such Indemnified Party is not entitled to indemnification.
Any Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the
15
expense of the Indemnified Party unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Indemnifying Party,
(ii) the Indemnifying Party shall have failed to assume the defense of such
action or employ counsel reasonably satisfactory to the Indemnified Party or
(iii) the named parties to any such action (including any impleaded parties)
include both the Indemnified Party and the Indemnifying Party, and the
Indemnified Party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional
to those available to the Indemnifying Party (in which case the Indemnifying
Party shall not have the right to assume the defense of such action on behalf
of the Indemnified Party). In any such case, the Indemnifying Party shall not,
in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
indemnified parties and all such fees and expenses shall be reimbursed as they
are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation, in the case of parties indemnified pursuant to
Section 7(a), and by the Company, in the case of parties indemnified pursuant
to Section 7(b). The Indemnifying Party shall indemnify and hold harmless the
Indemnified Party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
Indemnifying Party shall have received a request from the Indemnified Party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the Indemnifying Party) and, prior to the
date of such settlement, the Indemnifying Party shall have failed to comply
with such reimbursement request. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the Indemnified Party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the Indemnified Party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the Indemnified Party from
all liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the Indemnified Party.
(d) To the extent the indemnification provided for in this
Section 7 is unavailable to an Indemnified Party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriter on the other hand from the offering
of the Units or (ii) if the allocation provided by clause 7(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriter on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other hand shall be deemed
to be in the same proportion as the total net
16
proceeds from the offering (before deducting expenses) received by the Company,
and the total underwriting discounts and commissions received by the
Underwriter, bear to the total price to the public of the Units, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company on the one hand and the Underwriter on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Party in connection with investigating or
defending any matter, including any action, that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 7, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Units underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
SECTION 8. Conditions of Underwriter's Obligations. The
obligation of the Underwriter to purchase the Units under this Agreement is
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of Quaker
contained in this Agreement and all of the representations and warranties of
Holdings and its subsidiaries contained in the Merger Agreement shall be true
and correct on the Closing Date with the same force and effect as if made on
and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such Rule
462(b) Registration Statement shall have become effective by 10:00 P.M., New
York City time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
17
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) On or after the date hereof there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating of Quaker,
Holdings or any of Holdings' subsidiaries or any securities of Quaker, Holdings
or any of Holdings' subsidiaries or in the rating outlook for any such entity
(including, without limitation, the placing of any of the foregoing ratings on
creditwatch with negative or developing implications or under review with an
uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in their
capacities as President and Treasurer and Vice President and Secretary of
Quaker, confirming, to the best of their respective knowledge, as to Quaker,
the matters set forth in Sections 8(a), 8(b), 8(c) and 8(f).
(e) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in their capacities as Chairman and Chief Executive Officer,
Vice President and Chief Financial Officer and General Counsel and Corporate
Secretary of Holdings, confirming, to the best of their respective knowledge,
as to Holdings and Holdings' subsidiaries, the matters set forth in Sections
8(a), 8(b), 8(c) and 8(f).
(f) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of Quaker or Holdings and any of
Holdings' subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development involving a prospective change in the capital stock
or in the long-term debt of Quaker, Holdings or any of Holdings' subsidiaries
and (iii) none of Quaker, Holdings or any of Holdings' subsidiaries shall have
incurred any liability or obligation, direct or contingent, the effect of
which, in any such case described in clause 8(e)(i), 8(e)(ii) or 8(e)(iii), in
your judgment, is material and adverse and, in your judgment, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriter), dated the Closing Date,
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇ ▇▇▇▇") counsel for the Company, to the effect
that:
(i) Quaker has been duly incorporated, is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on
its business as described in the Prospectus and to own, lease and
operate its properties;
18
(ii) Quaker is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a Material Adverse Effect;
(iii) Quaker does not have any direct or indirect
subsidiaries;
(iv) Quaker is not in violation of its charter or by-laws
and, to the best of such counsel's knowledge after due inquiry, Quaker
is not in default in the performance of any obligation, agreement,
covenant or condition contained in any Operative Document;
(v) Quaker has duly authorized the issuance of the Debentures
and the Warrants as a Unit and delivered the Units;
(vi) the Debentures have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriter in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms except (a) as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
and remedies generally and (b) as such enforcement may be limited by
general principles of equity, regardless of whether enforcement is
sought in a proceeding at law or in equity;
(vii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
Quaker and is a valid and binding agreement of Quaker, enforceable in
accordance with its terms except (a) as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights and remedies generally and
(b) as such enforcement may be limited by general principles of
equity, regardless of whether enforcement is sought in a proceeding at
law or in equity;
(viii) the Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as (a) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights and remedies generally and (b) as such enforcement
may be limited by general principles of equity, regardless of whether
enforcement is sought in a proceeding at law or in equity;
(ix) Quaker has duly authorized the Warrants and, when
countersigned by the Warrant Agent and issued and delivered by Quaker
in accordance with the terms of the Warrant Agreement and delivered to
and paid for by the Underwriter in accordance with the terms of this
Agreement, the Warrants will have been validly issued, and the
issuance of such Warrants will not be subject to any preemptive or
similar rights;
19
(x) Quaker has duly authorized and reserved for issuance the
Warrant Shares to be issued upon the exercise of the Warrants and,
when issued and delivered upon the exercise of the Warrants against
payment of the Exercise Price (as defined in the Warrant Agreement) as
provided in the Warrant Agreement, the Warrant Shares will conform in
all material respects to the description thereof in the Prospectus,
will have been duly issued and will be fully paid and non-assessable,
and the issuance of such Warrant Shares will not be subject to any
preemptive or similar rights;
(xi) all the outstanding shares of capital stock of Quaker
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
(xii) this Agreement has been duly authorized, executed
and delivered by Quaker;
(xiii) each of the Operative Documents is the valid and
legally binding obligation of the Company enforceable against the
Company in accordance with its respective terms, except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the creditors' rights generally, (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability and (c) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(xiv) to the best of such counsel's knowledge after due
inquiry, except as otherwise set forth in the Prospectus, there are no
contracts, agreements or understandings between Quaker and any person
granting such person the right to require Quaker to file a
registration statement under the Act with respect to any securities of
Quaker or to require Quaker to include such securities with the Units
registered pursuant to the Registration Statement;
(xv) such counsel has been advised by the Commission that the
Registration Statement has become effective under the Act, no stop
order suspending its effectiveness has been issued and no proceedings
for that purpose are, to the best of such counsel's knowledge after
due inquiry, pending before or contemplated by the Commission;
(xvi) the statements under the captions "the Merger and
Merger Financing," "Risk Factors--Fraudulent Transfer Statutes,"
"Certain Relationships and Related Transactions," "Description of the
New Credit Facility," "Description of the Units," "Description of the
Warrants," "Description of the Debentures," "Underwriting" and the
description of the existing employment and severance agreements under
the caption "Executive Compensation--Existing Employment and Severance
Agreements" in the Prospectus and Items 14 and 15 of Part II of the
Registration Statement, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings;
20
(xvii) the execution, delivery and performance of this
Agreement, the Indenture, the Debentures, the Warrant Agreement, the
Warrants, the Debenture Assumption and the Warrant Assumption and the
consummation of the Merger by Quaker will not (A) require any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as may be
required under the Securities Act or other securities or Blue Sky laws
of various states or by the NASD); (B) conflict with or constitute a
breach of any of the terms or provisions of, or default under, the
certificate of incorporation or by-laws of Quaker; (C) require any
consent or approval (which has not been obtained) of parties to, or
conflict with or constitute a breach of any of the terms or provisions
of, or default under, any of the agreements filed as an exhibit to the
Registration Statement (which has not been waived); (D) violate or
conflict with any laws or rules or regulations, rulings or court
decrees as applicable to Quaker or its properties; or (E) result in
the creation or imposition of any Lien on any material asset of Quaker
under any of the agreements filed as an exhibit to the Registration
Statement, except as, with respect to clauses (C) and (E) above, would
not have a Material Adverse Effect;
(xviii) Quaker is not and, immediately subsequent to the
Merger, the offering and sale of the Units and the application of the
proceeds thereof and the other transactions contemplated by this
Agreement and the Operative Documents, in each case, as described in
the Prospectus, will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended; and
(xix) (A) the Registration Statement and the Prospectus and
any supplement or amendment thereto (except for the financial
statements and other financial data included therein as to which no
opinion need be expressed) comply as to form with the Act, (B) such
counsel has no reason to believe that at the time the Registration
Statement became effective or on the date of this Agreement, the
Registration Statement and the prospectus included therein (except for
the financial statements and other financial data as to which such
counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act) contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (C) such counsel has no reason to believe
that the Prospectus, as amended or supplemented, if applicable (except
for the financial statements and other financial data and the Form
T-1, as aforesaid) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
described in Section 8(g) above shall be rendered to you at the
request of the Company and shall so state therein.
Immediately subsequent to the Effective Time, you shall have received
the opinion of ▇▇▇▇▇ ▇▇▇▇ to the effect that:
21
(xx) the Debenture Assumption has been duly authorized,
executed and delivered by Holdings and is a valid and binding
agreement of Holdings, enforceable in accordance with its terms except
as (a) as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
and remedies generally and (b) as such enforcement may be limited by
general principles of equity, regardless of whether enforcement is
sought in a proceeding at law or in equity;
(xxi) the Warrant Assumption has been duly authorized,
executed and delivered by Holdings and is a valid and binding
agreement of Holdings, enforceable in accordance with its terms except
as (a) as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
and remedies generally and (b) as such enforcement may be limited by
general principles of equity, regardless of whether enforcement is
sought in a proceeding at law or in equity;
(xxii) the Debentures are valid and binding obligations of
Holdings, enforceable against Holdings in accordance with their terms
except (a) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights and remedies generally and (b) as such enforcement
may be limited by general principles of equity, regardless of whether
enforcement is sought in a proceeding at law or in equity;
(xxiii) the Indenture is the valid and binding obligation of
Holdings, enforceable against Holdings in accordance with its terms
except, in the case of both clauses (I) and (II), as (a) as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights and remedies
generally and (b) as such enforcement may be limited by general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity;
(xxiv) the Warrant Agreement is the valid and binding
obligation of Holdings, enforceable against Holdings in accordance
with its terms except as (a) as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and (b) as such
enforcement may be limited by general principles of equity, regardless
of whether enforcement is sought in a proceeding at law or in equity;
(xxv) Holdings has duly authorized, issued and delivered the
Warrants and the Warrants have been validly issued, and the issuance
of such Warrants will not be subject to any preemptive or similar
rights;
(xxvi) Holdings has duly authorized and reserved for issuance
the Warrant Shares to be issued upon the exercise of the Warrants and,
when issued and delivered upon the exercise of the Warrants against
payment of the Exercise Price as provided in the Warrant Agreement,
the Warrant Shares will conform in all material respects to the
description thereof in the Prospects, will have been duly issued and
will be fully paid and non-
22
assessable, and the issuance of such Warrant Shares will not be
subject to any preemptive or similar rights;
(xxvii) the execution, delivery and performance of the
Debenture Assumption and the Warrant Assumption and the consummation
of the Merger by Holdings will not (A) require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as may be
required under the Securities Act or other securities or Blue Sky laws
of various states or by the NASD); (B) conflict with or constitute a
breach of any of the terms or provisions of, or default under, the
certificate of incorporation or by-laws of Holdings or any of its
Subsidiaries; (C) require any consent or approval (which has not been
obtained) of parties to, or conflict with or constitute a breach of
any of the terms or provisions of, or default under, any of the
agreements filed as an exhibit to the Registration Statement (which
has not been waived); (D) violate or conflict with any laws or rules
or regulations, rulings or court decrees as applicable to Holdings,
Holdings' Subsidiaries or their respective properties; or (E) result
in the creation or imposition of any Lien on any material asset of
Holdings or any of Holdings' Subsidiaries under any of the agreements
filed as an exhibit to the Registration Statement, except as, with
respect to clauses (C) and (E) above, would not have a Material
Adverse Effect; and
(xxviii) a registration statement on an appropriate form
under the Act containing a Market Making Prospectus in connection with
sales of the Securities has, such counsel has been advised by the
Commission, become effective under the Act, no stop order suspending
the effectiveness of such registration statement has been issued and
no proceedings for that purpose are, to the best of such counsel's
knowledge after due inquiry, pending before or contemplated by the
Commission.
(h) You shall have received on the Closing Date, an opinion
(satisfactory to you and counsel for the Underwriter), dated the Closing Date,
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel and Corporate Secretary of Holdings to
the effect that:
(i) the entities listed on Schedule I hereto are the only
direct or indirect subsidiaries of Holdings;
(ii) each of Holdings and Holdings' subsidiaries has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has
the corporate power and authority to carry on its business as
described in the Prospectus and to own, lease and operate its
properties;
(iii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which Holdings or any of its
subsidiaries is or could be a party or to which any of their
respective property is or could be subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described;
23
(iv) to his knowledge, neither Holdings nor any of its
subsidiaries has violated any Environmental Law or any provisions of
the Employee Retirement Income Security Act of 1974, as amended, or
the rules and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have a
Material Adverse Effect or except as otherwise set forth in the
Prospectus;
(v) to his knowledge: each of Holdings and its subsidiaries
has such Authorizations of, and has made all filings with and notices
to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary
to own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly
or in the aggregate, have a Material Adverse Effect; each such
Authorization is valid and in full force and effect and each of
Holdings and its subsidiaries is in material compliance with all the
terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that
are burdensome to Holdings or any of its subsidiaries; except where
such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any
such restriction would not, singly or in the aggregate, have a
Material Adverse Effect;
(vi) each of Holdings and Holdings' subsidiaries is duly
qualified and is in good standing as a foreign corporation authorized
to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect;
(vii) none of Holdings or any of Holdings' subsidiaries is in
violation of its respective charter or by-laws and, to the best of
such counsel's knowledge, none of Holdings or any of its subsidiaries
is in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to
Holdings and Holdings' subsidiaries, taken as a whole, to which
Holdings or any of Holdings' subsidiaries is a party or by which
Holdings or any of Holdings' subsidiaries or their respective property
is bound;
(viii) to the best of such counsel's knowledge, except (a) as
otherwise set forth in the Prospectus and (b) for the registration
rights agreement, dated as of January 27, 1994, among Onset
Corporation and the security holders party thereto, there are no
contracts, agreements or understandings between Holdings and any
person granting such
24
person the right to require Holdings to file a registration statement
under the Act with respect to any securities of Holdings; and
(ix) except as otherwise set forth in the Prospectus, all of
the outstanding shares of capital stock of Holdings and each of its
subsidiaries are, and immediately subsequent to the Effective Time,
will have been duly authorized and validly issued and are, and
immediately subsequent to the Effective Time, will be fully paid and
non-assessable, and all of the outstanding shares of the capital stock
of the subsidiaries of Holdings are, and immediately subsequent to the
Effective Time, will be owned by Holdings, directly or indirectly
through one or more subsidiaries, free and clear of any Lien.
The opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ described in
Section 8(h) above shall be rendered to you at the request of Holdings
and shall so state therein.
In giving such opinions with respect to the matters
covered by Section 8(g)(xiii), ▇▇▇▇▇ ▇▇▇▇ and counsel for the
Underwriters may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review
and discussion of the contents thereof, but are without independent
check or verification except as specified.
(i) You shall have received on the Closing Date an opinion,
dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriter in
form and substance reasonably satisfactory to the Underwriter.
(j) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from Deloitte & Touche
LLP, independent public accountants, containing the information and statements
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(k) The Equity Investment shall have been consummated as
described in the Registration Statement and the Prospectus.
(l) Quaker shall have entered into the Indenture and Holdings
shall have entered into the Debenture Assumption and the Underwriter shall have
received counterparts, as executed, thereof.
(m) Quaker shall have entered into the Warrant Agreement and
Holdings shall have entered into the Warrant Assumption and the Underwriter
shall have received counterparts, as executed, thereof.
(n) a registration statement on an appropriate form under the
Act containing a Market Making Prospectus in connection with sales of the
Securities shall have become effective
25
under the Act, no stop order suspending the effectiveness of such registration
statement shall have been issued and no proceedings for that purpose are, to
the best of such counsel's knowledge after due inquiry, pending before or
contemplated by the Commission.
(o) The Company shall have entered into each of the Operative
Documents (the form and substance of which shall be reasonably acceptable to
the Underwriter) and the Underwriter shall have received counterparts,
conformed as executed, of each thereof and of all other documents and
agreements entered into in connection therewith.
(p) Each condition to closing contemplated by the New Credit
Facility (other than the issuance and sale of the Units pursuant hereto) shall
have been satisfied or waived. There shall exist at and as of the Closing Date
(after giving effect to the transactions contemplated by this Agreement and the
other Operative Documents) no conditions that would constitute a default (or an
event that with notice or the lapse of time, or both, would constitute a
default) under the New Credit Facility. On the Closing Date, the closing under
the New Credit Facility shall have been consummated on terms that conform in
all material respects to the description thereof in the Registration Statement
and the Prospectus and the Underwriter shall have received evidence
satisfactory to it of the consummation thereof.
(q) Each condition to closing contemplated by the
underwriting agreement relating to the offering of the Notes by DecisionOne
Corp. (other than the issuance and sale of the Units pursuant hereto) shall
have been satisfied or waived. On the Closing Date, the closing under the
underwriting agreement relating to the offering of the Notes by DecisionOne
Corp. shall have been consummated on terms that conform in all material
respects to the description thereof in the Registration Statement and the
Prospectus and the Underwriter shall have received evidence satisfactory to it
of the consummation thereof.
(r) Each condition to closing contemplated by each of the
other Operative Documents (other than the issuance and sale of the Units
pursuant hereto) shall have been satisfied or waived. There shall exist at and
as of the Closing Date (after giving effect to the transactions contemplated by
this Agreement and the other Operative Documents) no conditions that would
constitute a default (or an event that with notice or the lapse of time, or
both, would constitute a default), breach or violation of any of the Operative
Documents. On the Closing Date, each of the Operative Documents shall have been
entered into on terms that conform in all material respects to the description
thereof in the Registration Statement and the Prospectus and the Underwriter
shall have received evidence satisfactory to it of the execution thereof and
the consummation of the transactions contemplated thereby.
(s) Each condition to closing contemplated by the Merger
Agreement (other than the issuance and sale of the Units pursuant hereto) shall
have been satisfied or waived. There shall exist at and as of the Closing Date
(after giving effect to the transactions contemplated by this Agreement and the
other Operative Documents) no conditions that would constitute a default (or an
event that with notice or the lapse of time, or both, would constitute a
default) under the Merger Agreement. On the Closing Date, the Merger shall have
been consummated on terms that conform in all material respects to the
description thereof in the Registration Statement and the
26
Prospectus and the Underwriter shall have received evidence satisfactory to it
of the consummation thereof. The Company shall deliver to the Underwriter
copies of the certificate of merger required under Delaware law to be filed in
order to effect the Merger, as certified by the Secretary of State of Delaware
on the Closing Date.
(t) On the Closing Date, you shall have received a copy of
the solvency opinion by an independent third party addressed to the Board of
Directors of Holdings and the Board of Directors of DecisionOne Corp. as to the
solvency of the Company and its subsidiaries following the consummation of the
transactions contemplated herein and by the Merger Agreement.
(u) On the Closing Date, the existing revolving credit
facility of DecisionOne Corp. will be prepaid in full and the Underwriter shall
have received evidence of such repayment.
(v) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company at or prior to the
Closing Date.
SECTION 9. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to Quaker if any of the following has
occurred: (1) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market
the Units on the terms and in the manner contemplated in the Prospectus, (2)
the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (3) the suspension of trading of any securities of Quaker, Holdings or
any of Holdings' subsidiaries on any exchange or in the over-the-counter
market, (4) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects,
or will materially and adversely affect, the business, prospects, financial
condition or results of operations of Quaker or Holdings and Holdings'
subsidiaries, taken as a whole, (5) the declaration of a banking moratorium by
either federal or New York State authorities or (6) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
SECTION 10. Miscellaneous. Notices given pursuant to any
provision of this Agreement shall be addressed as follows: (i) if to Quaker, to
Quaker Holding Co., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; (ii) if to Holdings, to
DecisionOne Holdings Corp., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
27
Attention: General Counsel, with a copy to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. and (iii) if
to the Underwriter, to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Syndicate Department, with a copy
to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇ ▇.
▇▇▇▇▇, Esq., or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company and the
Underwriter set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and
payment for the Units, regardless of (1) any investigation, or statement as to
the results thereof, made by or on behalf of the Underwriter, the officers or
directors of the Underwriter, any person controlling the Underwriter, the
Company or the officers or directors of the Company or any person controlling
the Company, (2) acceptance of the Units and payment for them hereunder and (3)
termination of this Agreement.
If for any reason the Units are not delivered by or on behalf
of Quaker as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Company agrees to reimburse the
Underwriter for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by it. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has
agreed to pay pursuant to Section 5(i) hereof. The Company also agrees to
reimburse the Underwriter, its directors and officers and any persons
controlling the Underwriter for any and all fees and expenses (including,
without limitation, the fees disbursements of counsel) incurred by it in
connection with enforcing its rights hereunder (including, without limitation,
pursuant to Section 7 or 8 hereof).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Underwriter, the Underwriter's directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors
and assigns" shall not include a purchaser of any of the Units from any
Underwriter merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
28
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Underwriter.
Very truly yours,
QUAKER HOLDING CO.
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
---------------------------------
Name:
Title:
29
SCHEDULE I
Subsidiaries of DecisionOne Holdings Corp.
DecisionOne Corporation
Properties Holding Corporation
Properties Development Corporation
International Computers Properties Corporation
DecisionOne (Canada) Corporation
DecisionOne Supplies, Inc.
Decision Data Computer International, S.A.
Decision Data Investment Corporation
Decision Data International Corporation