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As filed with the Securities and Exchange Commission on February 25, 1999
Registration Statement No. 333-49795
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 6
ON
FORM S-3*
TO THE
REGISTRATION STATEMENT
ORIGINALLY FILED ON FORM S-1
UNDER
THE SECURITIES ACT OF 1933
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MAC-GRAY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 04-3361982
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
22 Water Street
Cambridge, Massachusetts 02141
(617) 492-4040
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Office)
STEWART GRAY MACDONALD, JR.
Chairman and Chief Executive Officer
Mac-Gray Corporation
22 Water Street
Cambridge, Massachusetts 02141
(617) 492-4040
(Name, Address, Including Zip Code and Telephone Number, Including Area Code,
of Agent for Service)
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Copies to:
STUART M. CABLE, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
Approximate date of commencement of proposed sale to the public: From time to
time after this Post-Effective Amendment becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
This Post-Effective Amendment to the Registration Statement shall become
effective upon order of the Commission pursuant to Section 8(c) of the
Securities Act of 1933, as amended.
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* Filed as a Post-Effective Amendment on Form S-3 to such Form S-1
Registration Statement pursuant to the provisions of Rule 401(e) and the
procedure described therein.
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PROSPECTUS
MAC-GRAY CORPORATION
22 Water Street
Cambridge, Massachusetts 02141
(617) 492-4040
250,000 SHARES
[MAC-GRAY LOGO APPEARS HERE]
COMMON STOCK
The following stockholders of Mac-Gray Corporation may offer and sell these
shares from time to time: Peter B. Finn, Edward J. Goulart, Ronald R. Jalbert,
Robert W. LaRoche, David Luongo, Joseph J. Tischler and Massachusetts Capital
Resource Company. We issued the shares to these selling stockholders on April
23, 1998 in connection with our acquisition of Copico, Inc.
The selling stockholders will receive all of the net proceeds from the sale of
the shares. These stockholders will pay all underwriting discounts and selling
commissions, if any, applicable to the sale of the shares. We will not receive
any proceeds from the sale of the shares.
You should consider carefully the risk factors beginning on page 3 of this
prospectus before purchasing any of the shares of common stock offered hereby.
Our common stock is listed on the New York Stock Exchange under the symbol
"TUC." On February 24, 1999, the last reported sales price of the common stock
was $8.9375 per share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
You should rely only on the information contained in this document or that we
have referred you to. We have not authorized anyone to provide you with
different information.
The date of this Prospectus is February 25, 1999
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TABLE OF CONTENTS
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Page
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FORWARD-LOOKING STATEMENTS................................................ 3
RISK FACTORS.............................................................. 3
The success of our acquisition strategy depends upon our ability to
access capital on acceptable terms. ................................... 3
Our cash flows may not be sufficient to finance the significant capital
expenditures required to replace equipment and implement new
technology. ........................................................... 3
Our indebtedness may limit the use of our cash flow and restrict our
flexibility. .......................................................... 4
Our operations could be disrupted if we were unable to renew our leases.
....................................................................... 4
It is uncertain whether the market will readily accept our products
using new technology. ................................................. 4
Competition on local and national levels may hinder our ability to
expand. ............................................................... 5
Our operations could be disrupted if we are unable to continue our
relationships with Maytag and other suppliers. ........................ 5
Our growth strategy may not be successful if we are unable to acquire
and integrate
new businesses. ....................................................... 5
Our MicroFridge(R) products may be susceptible to product liability
claims for which our insurance may not be adequate. ................... 6
Our reliance upon common law and contractual intellectual property
rights may be insufficient to protect us from adverse claims. ......... 6
Principal stockholders, directors and executive officers could exercise
control and prevent a sale or merger. ................................. 6
Provisions of our charter and bylaws and Delaware law could have the
effect of discouraging takeovers. ..................................... 7
AVAILABLE INFORMATION..................................................... 8
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE........................... 9
BUSINESS.................................................................. 11
General................................................................. 11
Recent Developments..................................................... 11
USE OF PROCEEDS........................................................... 11
DESCRIPTION OF CAPITAL STOCK.............................................. 11
Authorized and Outstanding Capital Stock................................ 11
Material Provisions of Our Charter and Bylaws........................... 12
Statutory Business Combination Provision................................ 15
Transfer Agent and Registrar............................................ 15
THE SELLING STOCKHOLDERS AND THE OFFERED SHARES........................... 16
Background.............................................................. 16
Registration Rights Agreement........................................... 16
PLAN OF DISTRIBUTION...................................................... 17
LEGAL MATTERS............................................................. 19
EXPERTS................................................................... 19
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FORWARD-LOOKING STATEMENTS
Some of the statements incorporated by reference or made in this prospectus
under the captions "Risk Factors" and "Business," and elsewhere in this
prospectus or in documents incorporated by reference are "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. When we use the words
"anticipate," "assume," "believe," "estimate," "expect," "intend," and other
similar expressions in this prospectus, we generally intend to identify
forward-looking statements. You should not rely on forward-looking statements
since they involve known and unknown risks, uncertainties and other factors
which are, in some cases, beyond our control and which could materially affect
our actual results, performance or achievements. Factors that could cause our
actual results, performance or achievements to differ materially from those
expressed or implied by these forward-looking statements include, but are not
limited to, the factors described under "Risk Factors" in this prospectus. You
should carefully review all of the factors described below, which may not be an
exhaustive list of these factors.
RISK FACTORS
A purchase of our common stock involves various risks. You should consider the
following risk factors:
The success of our acquisition strategy depends upon our ability to access
capital on acceptable terms.
The success of our growth strategy is dependent upon our ability to identify,
finance and consummate acquisitions on acceptable financial terms. Our access
to capital is subject to the following risks:
. use of our common stock as acquisition consideration may result in dilution
to our stockholders;
. if our common stock does not maintain a sufficient valuation or if potential
acquisition candidates are unwilling to accept shares of our common stock,
then we will be required to use more cash resources or other consideration
to make acquisitions;
. if we are unable to generate sufficient cash for acquisitions from existing
operations, our ability to make acquisitions could be adversely affected
unless we are able to obtain additional capital through external financings
or to borrow sufficient amounts; and
. funding our acquisition program through debt financing will result in
additional leverage.
Our cash flows may not be sufficient to finance the significant capital
expenditures required to replace equipment and implement new technology.
We must continue to make capital expenditures in order to replace our existing
equipment, which requires significant operating financing. In addition, our
plan to use smart-card based technologies with our equipment will also require
significant capital expenditures. While we anticipate that our existing capital
resources, as well as cash from operations, will be adequate to finance
anticipated capital expenditures, we cannot assure you that our resources or
cash flows will be sufficient. To the extent that our available resources are
insufficient to fund capital requirements, we may need to raise additional
funds through public or private financings or curtail our capital expenditures.
Such
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financings may not be available or available only on unfavorable terms and, in
the case of equity financings, could result in dilution to our stockholders.
Our indebtedness may limit the use of our cash flow and restrict our
flexibility.
In the event we significantly increase the outstanding indebtedness under our
credit facility, the increased indebtedness could:
. require us to use a substantial portion of our cash flow from operations to
make payments on our indebtedness, leaving less cash flow available for
other purposes;
. materially limit or impair our ability to obtain financing in the future for
working capital needs, capital expenditures, acquisitions, investments,
general corporate or other purposes; and
. reduce our flexibility to respond to changing business and economic
conditions.
The credit facility requires us to comply with various financial and other
operating covenants. Our failure to comply with any of these covenants, which
the lender does not waive, would permit the lender to accelerate our loan. An
acceleration of our loan could have a material adverse effect on our business.
Our operations could be disrupted if we were unable to renew our leases.
Our business is highly dependent upon the renewal of our leases with property
owners, colleges and universities and public housing authorities. We have
traditionally relied upon exclusive, long-term leases with our customers, as
well as frequent customer interaction and an historical emphasis on customer
service, to assure continuity of financial and operating results. We cannot
assure you that:
. we will be able to continue to secure long-term exclusive leases with our
customers on favorable terms;
. we will be able to successfully renew our existing leases as they expire; or
. we will not experience a loss of business if property owners or management
companies choose to vacate properties as a result of economic downturns that
impact occupancy levels.
Any failure by us to continue to obtain long-term exclusive leases with a
substantial number of our customers, or to successfully renew our existing
leases as they expire, could have a material adverse effect on our business.
It is uncertain whether the market will readily accept our products using new
technology.
We are currently introducing, and intend to introduce in the future, new
products and services using smart card based technologies. While we believe
that cashless transactions will be attractive to our customers and will provide
us with various benefits, we cannot assure you that there will be widespread
acceptance of these products by property owners, managers, colleges and
universities and residents. Furthermore, there is a risk that technical or
operational problems may arise from the implementation of smart card based
technologies. Accordingly, we cannot assure you that the incremental revenue
and cost efficiencies associated with technological enhancements, such as the
smart card, will justify the significant capital expenditures associated with
these enhancements.
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Competition on local and national levels may hinder our ability to expand.
The card and coin-operated laundry services industry is highly competitive,
both locally and nationally. On the local level, private businesses tend to
have long-standing relationships with property owners and managers in their
specific geographic market. On the national level, there are two large
companies participating in the industry consolidation, each of which has
significantly larger installed machine bases than we do. These larger companies
tend to have significant operational and managerial resources to devote to
expansion and to capture additional market share. These competitive forces may
increase purchase prices for future acquisitions to levels that make the
acquisitions less attractive or uneconomical. Accordingly, we cannot assure you
that we will be able to compete effectively in any specific geographic location
in the business of supplying laundry equipment services to property owners and
managers or in the acquisition of other businesses.
Our operations could be disrupted if we are unable to continue our
relationships with Maytag and other suppliers.
We currently purchase more than 90% of the equipment that we use in our laundry
route business from Maytag Corporation. In addition, we derive a significant
amount of our non-laundry route revenue, as well as competitive advantages,
from our position as a distributor of Maytag commercial laundry products.
Although the agreements between us and Maytag Corporation may be terminated by
either party upon written notice, Maytag Corporation has never terminated any
of our agreements. We also currently purchase substantially all of our smart-
card based equipment from Schlumberger Technologies, Inc., a manufacturer of
card-based electronic transaction systems. In addition, we currently procure a
substantial amount of the products used by our Intirion business unit from a
limited number of suppliers, including Sanyo E&E Corporation. If our suppliers
terminated or demanded a substantial revision of the contracts or business
relationships we currently have with them, there may be a delay in finding a
replacement, if a suitable one can be found at all, and an inability to find
terms as favorable as the current terms.
Our growth strategy may not be successful if we are unable to acquire and
integrate new businesses.
Our growth strategy depends, in part, on our ability to acquire and
successfully integrate and operate additional businesses. While we generally
believe that our management team and business structure enable us to operate a
significantly larger and more diverse operation, we may be exposed to the
following risks in connection with finding, completing, and successfully
integrating acquisitions:
. the inability to effectively and efficiently integrate the assets of the
acquired business with our own;
. the inability to increase the revenue and profit of the acquired business;
. the expenditure of a disproportionate amount of our money and management
time integrating acquired businesses, particularly operations located in new
regions and operations involving new lines of business; and
. future acquisitions accounted for under the purchase method of accounting
may result in the recording of goodwill, the amortization of which may
reduce our net income.
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Our MicroFridge(R) products may be susceptible to product liability claims for
which our insurance may not be adequate.
Through Intirion, we market and distribute MicroFridge(R), a combination
microwave and refrigerator. The sale and distribution of MicroFridge(R), as
well as our other products, entails a risk of product liability claims.
Further, although MicroFridge(R) is manufactured by third parties under
contract with Intirion, Intirion may be subject to risks of product liability
claims related to this manufacture. Potential product liability claims may
exceed the amount of our insurance coverage or may be excluded from coverage.
We cannot assure you that we will be able to renew our existing insurance at a
cost and level of coverage comparable to that presently in effect, if at all.
In the event that Intirion is held liable for a claim against which it is not
indemnified or for damages exceeding the limits of our insurance coverage, the
claim could have a material adverse effect on our business.
Our reliance upon common law and contractual intellectual property rights may
be insufficient to protect us from adverse claims.
We rely upon certain trademark, service mark, copyright, patent and trade
secret laws, employee and third-party non-disclosure and non-solicitation
agreements and other methods to protect our proprietary rights. We periodically
make filings with the Patent and Trademark Office to protect some of our
proprietary rights, although we have traditionally relied upon the protections
afforded by contract rights and through common law ownership rights. We cannot
assure you that these contract rights and legal claims to ownership will
adequately protect us and our operations from adverse claims. In addition, any
adverse claims or litigation, with or without merit, could be costly and could
divert management's attention from the operation of our business.
Principal stockholders, directors and executive officers could exercise control
and prevent a sale or merger.
As of February 24, 1999, our principal stockholders, directors and executive
officers and their affiliates beneficially owned in the aggregate nearly 50% of
the outstanding shares of our common stock. This percentage ownership does not
include options to purchase 423,530 shares of our common stock held by some of
these persons, 176,810 of which are currently exercisable. If these affiliates
exercised any of their options, then the ownership of our common stock would be
further concentrated, and if they exercised a sufficient number of options,
they would collectively own a majority of the outstanding shares of our common
stock. As a result of this concentration in ownership, these stockholders, if
they were to act together, could have the ability, as a practical matter, to
significantly influence the outcome of the election of our directors and all
other matters requiring approval by a majority of our stockholders. Matters
requiring stockholder approval include significant corporate transactions, such
as mergers and sales of all or substantially all of our assets. The
concentration of ownership in our affiliates, together, in some cases, with
specific provisions of our charter and bylaws, as described below, and
applicable sections of the corporate law of Delaware, may have the effect of
delaying or preventing a change in control of Mac-Gray. A discussion of this
anti-takeover effect appears below.
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Provisions of our charter and bylaws and Delaware law could have the effect of
discouraging takeovers.
Specific provisions of our charter and bylaws, as described below, sections of
the corporate law of Delaware and powers of the board of directors may
discourage takeover attempts not first approved by the board of directors,
including takeovers which some stockholders may deem to be in their best
interests. These provisions and powers of the board of directors could delay or
prevent the removal of incumbent directors or the assumption of control by
stockholders, even if the particular removal or assumption of control would be
beneficial to stockholders. These provisions and powers of the board of
directors also could discourage or make more difficult a merger, tender offer
or proxy contest, even if these events would be beneficial, in the short term,
to the interests of stockholders. The anti-takeover provisions and powers of
the board of directors include, among other things:
. ability of the board of directors to issue shares of preferred stock and to
establish the voting rights, preferences and other terms of such preferred
stock,
. a classified board of directors serving staggered three-year terms;
. the elimination of stockholder voting by written consent;
. the absence of cumulative voting for directors;
. the removal of directors only for cause;
. the vesting of exclusive authority in the board of directors to determine
the size of the board of directors and, subject to the rights of holders of
any series of preferred stock, if issued, to fill vacancies thereon;
. the vesting of exclusive authority in the board of directors, except as
otherwise required by law, to call special meetings of stockholders;
. advance notice requirements for stockholder proposals and nominations for
election to the board of directors; and
. ownership restrictions, under the corporate law of Delaware, with limited
exceptions, upon acquirors including their affiliates and associates of 15%
or more of our common stock.
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AVAILABLE INFORMATION
We have filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the shares offered hereby. This
prospectus, which constitutes part of the registration statement, omits
portions of the information contained in the registration statement and the
exhibits thereto on file with the Commission pursuant to the Securities Act and
the rules and regulations of the Commission thereunder. The registration
statement, including exhibits thereto, may be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, and at the Commission's Regional
Offices at 7 World Trade Center, 13th Floor, New York, New York 10048, and
Northwestern Atrium Center, 500 W. Madison Street, Suite 1400, Chicago,
Illinois 60661-2511, and copies may be obtained at the prescribed rates from
the Public Reference Section of the Commission at its principal office in
Washington, D.C. In addition, we are required to file electronic versions of
these documents with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system, and these electronic versions
are available to the public at the Commission's World-Wide Web Site,
http://www.sec.gov. Statements contained in this prospectus as to the contents
of any contract or other document referred to are not necessarily complete, and
in each instance reference is made to the copy of the particular contract or
other document filed as an exhibit to the registration statement. Each
statement referring to a contract or other document is qualified in all
respects by the reference made.
We are subject to the informational requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and, in accordance therewith, file
reports, proxy statements, and other information with the Commission. These
reports, proxy statements, and other information can be inspected and copied at
the locations described above. Copies of these materials can be obtained via
EDGAR or by mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. In
addition, reports, proxy statements and other information may be inspected at
the offices of the New York Stock Exchange (the "NYSE"), 20 Broad Street, New
York, New York 10005, on which our shares of common stock are traded under the
symbol "TUC."
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INCORPORATION BY REFERENCE OF DOCUMENTS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
The following documents that we previously filed with the Commission pursuant
to the Exchange Act are incorporated by reference in this prospectus:
. Annual Report on Form 10-K for the fiscal year ended December 31, 1997,
except for Item 8 Financial Statements and Schedules, which were restated as
a result of the pooling-of-interests with Intirion Corporation which
occurred on March 12, 1998;
. Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1998;
. Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1998, as
amended by Form 10-Q/A filed December 24, 1998;
. Quarterly Report on Form 10-Q for the fiscal quarter ended September 30,
1998, as amended by Form 10-Q/A filed December 24, 1998;
. Current Report on Form 8-K filed March 5, 1998;
. Current Report on Form 8-K filed March 17, 1998;
. Current Report on Form 8-K filed March 24, 1998;
. Current Report on Form 8-K filed April 3, 1998;
. Current Report on Form 8-K filed May 8, 1998, as amended by Form 8-K/A filed
May 11, 1998 and Form 8-K/A filed July 7, 1998;
. Current Report on Form 8-K filed June 15, 1998;
. Current Report on Form 8-K filed August 28, 1998;
. Current Report on Form 8-K filed November 13, 1998;
. Current Report on Form 8-K filed November 17, 1998 which contains restated
financial statements;
. Current Report on Form 8-K filed December 11, 1998; and
. the description of our common stock contained in our registration statement
on Form 8-A dated October 14, 1997.
All of the documents we file pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this prospectus and prior to the termination
of the offering of all of the shares offered hereby shall be deemed to be
incorporated by reference in this prospectus and to be a part hereof from the
date of filing of each respective document. We will provide you or any
beneficial owner to whom a prospectus is delivered, upon oral or written
request, without charge, a copy of any or all of the documents incorporated
herein by reference, other than exhibits thereto, unless those exhibits are
specifically incorporated by reference into the documents. You should direct
requests for copies to:
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Mac-Gray Corporation, 22 Water Street, Cambridge, Massachusetts, Attention:
Chief Financial Officer (Tel. # (617) 492-4040). In addition, the public may
read and copy any materials we filed with the Commission at the Commission's
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. The
public may obtain information on the operation of the Public Reference Room by
calling the Commission at 1-800-SEC-0330.
If a statement in a subsequently filed document that this prospectus
incorporates by reference differs from a statement in this prospectus, you
should rely upon the different statement contained in the subsequently filed
document, to the extent it is different.
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BUSINESS
General
We derive our revenue principally through the operation and maintenance of card
and coin-operated laundry rooms in multiple housing facilities, such as
apartment buildings, colleges and universities, condominiums and public housing
complexes. We operate our laundry rooms under long-term leases with property
owners, colleges and universities and governmental agencies. The leases
typically grant us the exclusive right to operate laundry rooms on the lessor's
premises for a fixed term, which is generally seven to ten years, in exchange
for a percentage of the revenue collected. Our laundry route business consists
of more than 155,000 laundry machines, operated in over 25,000 multiple housing
laundry rooms located in 27 states.
We also derive revenue as a distributor and servicer of commercial laundry
equipment manufactured by Maytag Corporation, and sell laundry equipment
manufactured by American Dryer, The Dexter Company, and Whirlpool Corporation
to provide several alternatives in machine type, cost and capacity.
Additionally, we sell or rent laundry equipment to restaurants, hotels, health
clubs and similar institutional users that operate their own on-premises
laundry facilities.
Recent Developments
The board of directors and our senior lenders have approved a stock repurchase
plan under which we are authorized to spend up to eight million dollars
($8,000,000) to acquire shares of our common stock in the open market during
the next twelve months. Accordingly, we may repurchase shares from time to time
and in amounts as market conditions warrant, subject to regulatory
considerations.
USE OF PROCEEDS
We will not receive any of the proceeds of the sale, if any, of the shares
offered by this prospectus.
DESCRIPTION OF CAPITAL STOCK
Authorized and Outstanding Capital Stock
Our authorized capital stock consists of 30,000,000 shares of common stock and
5,000,000 shares of undesignated preferred stock issuable in series by the
board of directors. As of February 24, 1999, there were 12,781,628 shares of
common stock outstanding that were held of record by 97 stockholders. We do not
intend the following summary description of the our capital stock to be
complete. We refer you to our charter and the bylaws for a more complete
description of our capital stock.
The Common Stock. The holders of common stock are entitled to one vote per
share on all matters to be voted on by stockholders and are entitled to receive
dividends, if any, as the board of directors may declare from time to time from
funds legally available for dividends. The possible issuance of preferred stock
with a preference over the common stock as to dividends could impact the
dividend rights of holders of common stock. Holders of common stock are not
entitled to cumulative voting
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rights. Therefore, the holders of a majority of the shares voted in the
election of directors can elect all of the directors then standing for
election, subject to the rights of the holders of any then outstanding
preferred stock, if and when issued. The holders of common stock have no
preemptive or other subscription rights, and there are no conversion rights or
redemption or sinking fund provisions with respect to the common stock. Upon
our voluntary or involuntary liquidation, dissolution or winding up, our net
assets shall be distributed pro rata to the holders of the common stock in
accordance with their respective rights and interests, subject to the rights
and interests of the holders of preferred stock, if and when issued. All
outstanding shares of common stock are fully paid and non-assessable.
Our charter and bylaws provide, subject to the rights of the holders of any
preferred stock then outstanding, that the board of directors shall fix the
number of directors. The directors, other than those who may be elected by the
holders of any preferred stock, are divided into three classes, as nearly equal
in number as possible, with each class serving for a three-year term. Subject
to any rights of the holders of preferred stock to elect directors and to
remove any director whom the holders of the preferred stock had the right to
elect, any director may be removed from office only with cause and by the
affirmative vote of at least two-thirds of the total votes which would be
eligible to be cast by stockholders in the election of the director.
Undesignated Preferred Stock. The board of directors is authorized, without
further action of our stockholders, to issue up to 5,000,000 shares of
preferred stock in classes or series. In addition, the board of directors may
fix the designations, powers, preferences and the relative, participating,
optional or other special rights of the shares of each series and any
qualifications, limitations and restrictions thereon as set forth in our
charter. Any preferred stock we issue may rank prior to the common stock as to
dividend rights, liquidation preference or both, may have full or limited
voting rights and may be convertible into shares of common stock.
The purpose of authorizing the board of directors to issue preferred stock is,
in part, to eliminate delays associated with a stockholder vote on individual
issuances. The issuance of preferred stock could have the effect of making it
more difficult for a third party to acquire, or of discouraging a third party
from acquiring or seeking to acquire, a significant portion of the outstanding
common stock.
Material Provisions of Our Charter and Bylaws
General. A number of provisions of our charter and bylaws concern matters of
corporate governance and the rights of stockholders. These provisions, as well
as the ability of the board of directors to issue shares of preferred stock and
to set the voting rights, preferences and other terms thereof, may have the
following effects:
. discourage takeover attempts not first approved by the board of directors,
including takeovers which individual stockholders may deem to be in their
best interests;
. the classified board of directors could delay or frustrate the removal of
incumbent directors or the assumption of control by stockholders, even if
the particular removal or assumption would be beneficial to our
stockholders;
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. discourage or make more difficult a merger, tender offer or proxy contest,
even if such a transaction or contest could be favorable to the interests of
stockholders; and
. potentially depress the market price of the common stock.
We believe that these provisions are appropriate to protect our interests and
the interests of our stockholders. The board of directors has no present plans
to adopt any other measures or devices which may be deemed to have an "anti-
takeover effect."
Meetings of Stockholders. Our bylaws provide that a special meeting of
stockholders may be called only by the board of directors unless otherwise
required by law. Our bylaws provide that only those matters set forth in the
notice of the special meeting may be considered or acted upon at that special
meeting, unless otherwise provided by law. In addition, our bylaws set forth
other requirements, such as advance notice and informational requirements and
time limitations on any director nomination or any new business which a
stockholder wishes to propose for consideration at an annual meeting of
stockholders.
No Stockholder Action by Written Consent. Our charter provides that, for so
long as we have a class of stock registered pursuant to the provisions of the
Exchange Act, any action required or permitted to be taken by our stockholders
at an annual or special meeting of stockholders must be effected at a duly
called meeting and may not be taken or effected by a written consent of
stockholders in lieu thereof.
Indemnification and Limitation of Liability. Our bylaws provide that we shall
indemnify our directors and officers and that in the discretion of the board of
directors we may indemnify non-officer employees to the fullest extent
authorized by Delaware law, as it now exists or may in the future be amended.
This indemnification shall be for all expenses and liabilities reasonably
incurred in connection with the provision of service for or on our behalf, and
further permits the advancing of expenses incurred in defense of claims. Our
bylaws also provide that the right of directors and officers to indemnification
shall be a contractual right and shall not be exclusive of any other right now
possessed or hereafter acquired under any bylaw, agreement, vote of
stockholders or otherwise. Our charter contains a provision permitted by
Delaware law that generally eliminates the personal liability of directors for
monetary damages for breaches of their fiduciary duty, including breaches
involving negligence or gross negligence in business combinations. However, our
charter provides that we shall not indemnify a director for breaches where the
director has:
. breached his or her duty of loyalty;
. failed to act in good faith;
. engaged in intentional misconduct or a knowing violation of law;
. paid a dividend or approved a stock repurchase in violation of the Delaware
General Corporation Law; or
. obtained an improper personal benefit.
13
<PAGE>
This provision does not alter a director's liability under the federal
securities laws. In addition, this provision does not affect the availability
of equitable remedies, such as an injunction or rescission, for breach of
fiduciary duty.
Amendment of Our Charter. Our charter provides that an amendment to it must
first be approved by a majority of the board of directors and, with limited
exceptions, thereafter approved by the holders of a majority of the outstanding
shares entitled to vote on the amendment, and the affirmative vote of a
majority of the outstanding shares of each class entitled to vote thereon as a
class. In addition, the affirmative vote of not less than 80% of the
outstanding shares entitled to vote on an amendment, and the affirmative vote
of not less than 80% of the outstanding shares of each class entitled to vote
thereon as a class is required if the amendment would amend provisions of our
charter relating to:
. prohibition of stockholder action by written consent;
. establishment, composition and powers of the board of directors;
. limitation of director liability; and
. amendments to our charter.
Amendment of Our Bylaws. Our charter provides that our bylaws may be amended or
repealed by the board of directors or by the stockholders. An amendment or
repeal by the board of directors requires the affirmative vote of a majority of
the directors then in office. An amendment or repeal by the stockholders
requires the affirmative vote of the holders of at least three-fourths of the
total votes present and eligible to be cast by holders of voting stock voting
as a single class with respect to the amendment or repeal at an annual meeting
of stockholders or a special meeting called for that purpose. However, if the
board of directors recommends that the stockholders approve the amendment or
repeal at the meeting, then the amendment or repeal shall only require the
affirmative vote of a majority of the total votes present and eligible to be
cast by holders of voting stock voting as a single class with respect to the
amendment or repeal.
Ability to Adopt Stockholder Rights Plan. The board of directors may in the
future resolve to take measures designed to discourage persons seeking to gain
control over us by means of a merger, tender offer, proxy contest or otherwise,
if the change in control is not in our best interests or the best interests of
our stockholders. These measures may include:
. issuing shares of preferred stock or rights to acquire shares of preferred
stock;
. implementing a stockholder rights plan which creates voting or other
impediments; and
. implementing a plan to distribute shares to a third-party investor, a group
of investors or stockholders or an employee stock ownership plan.
The board of directors has no present intention of taking any of these measures
and is not aware of any attempt to obtain control over us.
14
<PAGE>
Statutory Business Combination Provision
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. Section 203 provides, with limited exceptions, that a Delaware
corporation may not engage in any of a broad range of business combinations
with a person, or an affiliate or associate of that person, who is an
"interested stockholder" for a period of three years from the date that the
person became an interested stockholder. This prohibition does not apply where:
. the transaction resulting in a person becoming an interested stockholder, or
the business combination, is approved by the board of directors before the
person becomes an interested stockholder;
. the interested stockholder acquired 85% or more of our outstanding voting
stock in the same transaction that makes it an interested stockholder,
excluding shares owned by persons who are both officers and directors, and
shares held by particular employee stock ownership plans; or
. on or after the date the person becomes an interested stockholder, the
business combination is approved by the board of directors and by the
holders of at least two-thirds of our outstanding voting stock at an annual
or special meeting, excluding shares owned by the interested stockholder.
Under Section 203, an "interested stockholder" is defined, with limited
exceptions, as any person that is (1) the owner of 15% or more of the
outstanding voting stock of the corporation or (2) an affiliate or associate of
the corporation and was the owner of 15% or more of the outstanding voting
stock of the corporation at any time within the three-year period immediately
prior to the date on which it is sought to be determined whether the person is
an interested stockholder.
A corporation may, at its option, exclude itself from the coverage of Section
203 by amending its certificate of incorporation or bylaws by action of its
stockholders to exempt itself from coverage; provided, however, that the bylaw
or charter amendment shall not become effective until 12 months after the date
the stockholders adopt this exclusion. Neither our charter nor bylaws contain
an exclusion from Section 203.
Transfer Agent and Registrar
State Street Bank and Trust Company is the transfer agent and registrar for our
common stock.
15
<PAGE>
THE SELLING SECURITYHOLDERS AND THE OFFERED SHARES
Background
The selling stockholders, who are former shareholders of Copico, Inc., acquired
the shares offered by this prospectus pursuant to a stock purchase agreement
dated March 31, 1998. Our acquisition of Copico, Inc. and the selling
stockholders' acquisition of the shares were consummated on April 23, 1998.
Registration Rights Agreement
In connection with the acquisition of Copico, Inc., we entered into a
registration rights agreement with the selling stockholders. The material
provisions of the registration rights agreement are set forth below. A copy of
the form of the registration rights agreement which was entered into in
connection with the consummation of the acquisition of Copico, Inc. has been
filed as an exhibit to the registration statement and can be obtained in the
manner described under "Available Information."
Resale Registration. To facilitate the resale by the selling stockholders of
the shares offered hereby, we have agreed to use commercially reasonable
efforts to keep the registration statement continuously effective for a period
ending with the earlier of (a) the sale of all the shares and (b) April 23,
1999.
Other Material Provisions. We will pay all expenses incident to the performance
of our registration obligations under the registration rights agreement. The
selling stockholders will be responsible for underwriting commissions or
discounts, transfer taxes, if any, attributable to the sale of the shares, any
fees or expenses of any counsel, accountants or other persons retained or
employed by the selling stockholders and out-of-pocket expenses of the selling
stockholders and their agents, including, without limitation, any travel costs.
The registration rights agreement contains customary indemnification provisions
whereby we are obligated to indemnify and hold harmless the selling
stockholders and if applicable, their officers, directors, employees, agents
and those who control any selling stockholders, in connection with liabilities
relating to the registration of shares. The selling stockholders are obligated
under defined circumstances to indemnify and hold us and our officers,
directors, employees, agents and those who control us harmless, in connection
with liabilities relating to the registration of the shares.
<TABLE>
<CAPTION>
Common Common Common
Stock Stock Stock
Owned Registered Owned
Name of Prior to for After
Securityholder Resale Resale Resale(1)
-------------- -------- ---------- ---------
<S> <C> <C> <C>
Peter B. Finn................................... 2,500 2,500 --
Edward J. Goulart............................... 67,900 67,900 --
Ronald R. Jalbert............................... 58,200 58,200 --
Robert W. LaRoche............................... 67,900 67,900 --
David Luongo.................................... 2,500 2,500 --
Joseph J. Tischler.............................. 2,500 2,500 --
Massachusetts Capital Resource Company.......... 48,500 48,500 --
</TABLE>
- --------
(1) Assumes that the selling stockholders sell all the shares and do not
acquire additional shares of our common stock.
16
<PAGE>
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares:
. directly to purchasers as principals or through one or more underwriters,
brokers, dealers or agents from time to time in one or more transactions,
which may involve crosses or block transactions;
. on any exchange or in the over-the-counter market;
. in transactions otherwise than in the over-the-counter market or on an
exchange;
. through the writing of options on the shares, whether these options are
listed on an options exchange or otherwise; or
. through settlement of short sales of the shares.
The price at which the selling stockholders sell the shares, which will be
determined by the selling stockholders or by agreement between the selling
stockholders and underwriters, brokers, dealers, agents or purchasers, may be:
. the market price prevailing at the time of sale;
. a price related to the prevailing market price;
. varying prices determined at the time of sale; or
. negotiated or fixed prices.
If the selling stockholders effect transactions by selling the shares to or
through underwriters, brokers, dealers or agents, then the underwriters,
brokers, dealers or agents may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders or commissions from
purchasers of the shares for whom they may act as agent. Any discounts,
concessions or commissions as to particular underwriters, brokers, dealers or
agents may be in excess of those customary in the types of transactions
involved. The selling stockholders and any brokers, dealers or agents that
participate in the distribution of the shares may be deemed to be
"underwriters" within the meaning of the Securities Act, and any profit they
make on the sale of the shares and any discounts, concessions or commissions
they receive may be deemed to be underwriting discounts and commissions under
the Securities Act.
The anti-manipulation rules under the Securities Exchange Act of 1934,
including Regulation M, may apply to sales of the shares in the market and to
the activities of the selling stockholders and broker-dealers or agents acting
on their behalf, as well as to purchasers who have a control relationship or
are acting with the selling stockholders or these broker-dealers and agents.
Regulation M applies to persons involved in "distributions" of securities,
which are sales that differ from ordinary brokerage transactions because of
their size and special efforts to sell the securities. If the selling
stockholders or these other parties are engaged in a distribution of the
shares, Regulation M would generally prohibit bids for and purchases of the
shares during a specified period beginning
17
<PAGE>
before the person's involvement in the distribution and ending when the person
was no longer participating in the distribution. Regulation M also prohibits
bids and purchases that are related to offers of the shares by the selling
stockholders and are intended to fix or maintain the price of the shares on the
market. The general effect of Regulation M is to prohibit market transactions
by or on behalf of the selling stockholders that would have the effect of
maintaining or stabilizing the market price of the shares.
To the extent not described herein and as otherwise required by law, the
specific amount of the shares being offered or sold, the names of the selling
stockholders, the respective purchase prices and public offering prices, the
names of any agent, dealer or underwriter, and any applicable commissions or
discounts with respect to a particular offer or sale will be set forth in an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement of which this prospectus is a part.
We will not receive any of the proceeds of the sale of the shares by any
selling stockholder.
Under the securities laws of various states, the shares may be sold in those
states only through registered or licensed brokers or dealers. In addition, in
some states the shares may not be sold unless the shares have been registered
or qualified for sale in that state or an exemption from registration or
qualification is available and is complied with.
18
<PAGE>
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon
by Goodwin, Procter & Hoar LLP.
EXPERTS
Our consolidated financial statements as of December 31, 1997 and 1996 and for
each of the three years ended December 31, 1997, 1996 and 1995 and the combined
financial statements of Sun Services of America, Inc. and R. Bodden Coin-Op-
Laundry, Inc. as of and for the year ended December 31, 1996 incorporated in
this prospectus by reference to the Current Report on Form 8-K dated November
17, 1998, have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting. The financial statements of
Amerivend Corporation as of December 31, 1997 incorporated in this prospectus
by reference to our Current Report on Form 8-K/A dated July 7, 1998, have been
so incorporated in reliance on the reports of Morrison, Brown, Argiz & Company,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses in connection with the sale
and distribution of the shares, other than the underwriting discounts and
commissions. All amounts shown are estimates except for the Commission's
registration fee and the NYSE listing fee:
<TABLE>
<CAPTION>
Nature of Expense Amount
----------------- ------
<S> <C>
Commission registration fees...................................................... +
NYSE listing fee.................................................................. +
Legal fees and expenses........................................................... +
Accounting fees and expenses...................................................... +
Printing expenses................................................................. +
Miscellaneous..................................................................... +
---
Total........................................................................... +
===
</TABLE>
- --------
+ Previously filed.
Item 15. Indemnification of Directors and Officers.
In accordance with Section 145 of the Delaware General Corporation Law (the
"DGCL"), Article VII of the charter of Mac-Gray Corporation (the "Mac-Gray
Charter") provides that no director of Mac-Gray Corporation ("Mac-Gray") shall
be personally liable to Mac-Gray or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to Mac-Gray or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) in respect of certain unlawful dividend
payments or stock redemptions or repurchases, or (iv) for any transaction from
which the director derived an improper personal benefit. In addition, the Mac-
Gray Charter provides that if the DGCL is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of
a director of Mac-Gray shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
Article V of the bylaws of Mac-Gray (the "Mac-Gray Bylaws") provides for
indemnification by Mac-Gray of its directors and officers and certain non-
officer employees under certain circumstances against expenses (including
attorneys fees, judgments, penalties, fines and amounts paid in settlement)
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed legal proceeding in which any such person is
involved by reason of the fact that such person is or was an officer or
employee of Mac-Gray unless it is determined that such person did not act in
good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of Mac-Gray, and, with respect to criminal
actions or proceedings, such person had no reasonable cause to believe his or
her conduct was unlawful.
Mac-Gray has entered into indemnification agreements with each of its directors
reflecting the foregoing provisions of the Mac-Gray By-laws and requiring the
advancement of expenses in proceedings involving directors in most
circumstances and also intends to purchase directors' and
II-1
<PAGE>
officers' insurance to provide additional protections to the directors and
officers of Mac-Gray in certain circumstances.
Item 16. Exhibits.
Certain exhibits indicated below are incorporated by reference to documents of
Mac-Gray on file with the Commission: (i) each exhibit marked by a cross (+)
was previously filed as an exhibit to Mac-Gray's Registration Statement on Form
S-1 (No. 333-33669) and the number in parentheses following the description of
the exhibit refers to the exhibit number in the Form S-1; (ii) each exhibit
marked by an asterisk (*) was previously filed as an exhibit to Mac-Gray's
Registration Statement, as amended (No. 333-45899); (iii) each exhibit marked
by an (X) was previously filed as an exhibit to Mac-Gray's Registration
Statement on Form S-1, as amended (No. 333-49795); and (iv) each exhibit marked
by a (Z) was previously filed as an exhibit to Mac-Gray's Current Report on
Form 8-K dated April 23, 1998.
(a) Exhibits. The following is a complete list of exhibits filed or
incorporated by reference as part of this Registration Statement.
2.1 Agreement and Plan of Merger, dated as of December 22, 1997, by and among
Mac-Gray Corporation, MI Acquisition Corp., Intirion Corporation and
Robert P. Bennett. Pursuant to Item 601(b)(2) of Regulation S-K, the
Schedules referred to in the Merger Agreement are omitted. The Registrant
hereby undertakes to furnish supplementally a copy of any omitted Schedule
to the Commission upon request. The Exhibits to the Merger Agreement were
included in Appendix A to the Prospectus/Proxy Statement, which is a part
of the Registrant's previously filed Registration Statement on Form S-4,
as amended (No. 333-45899).*
2.2 Stock Purchase Agreement by and among Mac-Gray Services, Inc., Copico,
Inc. and Certain Stockholders, dated as of March 31, 1998. X
2.3 Stock and Asset Purchase Agreement, dated as of March 4, 1998, by and
among Mac-Gray Services, Inc., Amerivend Corporation, Amerivend Southeast
Corporation and certain stockholders. Z
4.1 Specimen certificate for shares of common stock, $.01 par value, of the
Registrant (4.1). +
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being offered. X
10.1 Registration Rights Agreement dated as of April 23, 1998 by and among Mac-
Gray Corporation, Peter B. Finn, Edward J. Goulart, Ronald R. Jalbert,
Robert W. LaRoche, David Luongo, Joseph J. Tischler and Massachusetts
Capital Resource Company.
23.1 Consent of Counsel (included in Exhibit 5.1 hereto). X
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Morrison, Brown, Argiz & Company.
24.1 Powers of Attorney. X
(b) Financial Statement Schedules
No Financial Statement Schedules are filed herewith.
Item 17. Undertakings.
(a) Mac-Gray hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-
effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-2
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the undersigned
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(b) The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of Mac-
Gray, Mac-Gray has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by Mac-Gray in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, Mac-Gray will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Mac-Gray
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this Post-
Effective Amendment No. 6 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Cambridge,
The Commonwealth of Massachusetts, on February 25, 1999.
Mac-Gray Corporation
/s/ Stewart Gray MacDonald, Jr.
By: _________________________________
Stewart Gray MacDonald, Jr.
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
No. 6 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stewart Gray MacDonald, Jr. Chairman and Chief February 25, 1999
______________________________________ Executive Officer and
Stewart Gray MacDonald, Jr. Director (Principal
Executive Officer)
/s/ Michael J. Shea Executive Vice President February 25, 1999
______________________________________ and Chief Financial
Michael J. Shea Officer (Principal
Financial and Accounting
Officer)
* Director February 25, 1999
______________________________________
Jerry A. Schiller
* Director February 25, 1999
______________________________________
John P. Leydon
* Director February 25, 1999
______________________________________
Eugene B. Doggett
/s/ Stewart Gray MacDonald, Jr.
*By: _________________________________
Stewart Gray MacDonald, Jr.
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Document Description
------- --------------------
<C> <S>
2.1 Agreement and Plan of Merger, dated as of December 22, 1997, by and
among Mac-Gray Corporation, MI Acquisition Corp., Intirion Corporation
and Robert P. Bennett. Pursuant to Item 601(b)(2) of Regulation S-K,
the Schedules referred to in the Merger Agreement are omitted. The
Registrant hereby undertakes to furnish supplementally a copy of any
omitted Schedule to the Commission upon request. The Exhibits to the
Merger Agreement were included in Appendix A to the Prospectus/Proxy
Statement, which is a part of the Registrant's previously filed
Registration Statement on Form S-4, as amended (No. 333-45899).*
2.2 Stock Purchase Agreement by and among Mac-Gray Services, Inc., Copico,
Inc. and Certain Stockholders, dated as of March 31, 1998.X
2.3 Stock and Asset Purchase Agreement, dated as of March 4, 1998, by and
among Mac-Gray Services, Inc., Amerivend Corporation, Amerivend
Southeast Corporation and certain stockholders.Z
4.1 Specimen certificate for shares of common stock, $.01 par value, of
the Registrant (4.1).+
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being offered.X
10.1 Registration Rights Agreement dated as of April 23, 1998 by and among
Mac-Gray Corporation, Peter B. Finn, Edward J. Goulart, Ronald R.
Jalbert, Robert W. LaRoche, David Luongo, Joseph J. Tischler and
Massachusetts Capital Resource Company.
23.1 Consent of Counsel (included in Exhibit 5.1 hereto).X
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Morrison, Brown, Argiz & Company.
24.1 Powers of Attorney.X
</TABLE>
- --------
+ Previously filed as an exhibit to Mac-Gray's Registration Statement on Form
S-1 (No. 333-33669) and incorporated by reference herein. The number in
parentheses following the description of the exhibit refers to the exhibit
number in the Form S-1.
* Previously filed as an exhibit to Mac-Gray's Registration Statement, as
amended (No. 333-45899) and incorporated by reference herein.
X Previously filed as an exhibit to Mac-Gray's Registration Statement on Form
S-1, as amended (No. 333-49795).
Z Previously filed as an exhibit to Mac-Gray's Current Report on Form 8-K
dated April 23, 1998.
<PAGE>
EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of April 23, 1998,
by and among Mac-Gray Corporation, a Delaware corporation (the "Company"), and
the holders who are signatories hereto (each a "Holder" and collectively, the
"Holders"). This Agreement is contemplated by a certain Stock Purchase
Agreement, dated as of March 31, 1998 (the "Purchase Agreement"), by and among
the Company, Mac-Gray Services, Inc., a Delaware corporation, Copico, Inc., a
Massachusetts corporation, and the Holders.
The parties hereby agree as follows:
Section 1. Definitions.
-----------
As used in this Agreement, the following terms shall have the following
meanings:
"Business Day" means any day other than a day on which banks are authorized
------------
or required to be closed in The Commonwealth of Massachusetts.
"Closing Date" has the meaning ascribed thereto in the Purchase Agreement.
------------
"Commission" means the Securities and Exchange Commission.
----------
"Common Shares" means the 250,000 shares of Common Stock issued to the
-------------
Holders pursuant to the Purchase Agreement.
"Common Stock" means the common stock, par value $.01 per share, of the
------------
Company.
"Company" has the meaning set forth in the preamble and shall include the
-------
Company's successors by merger, acquisition, reorganization or otherwise.
"Controlling Persons" has the meaning set forth in Section 6(a).
-------------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
------------
time to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"Lock-up Period" has the meaning set forth in Section 7.
--------------
"Person" means any individual, corporation, partnership, limited liability
------
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
<PAGE>
"Prospectus" means the prospectus included in any Registration Statement
----------
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to the prospectus, including post-effective
amendments, and in each case including all material incorporated by reference or
deemed to be incorporated by reference in such prospectus.
"Registrable Securities" means the Common Shares except for (i) Common
----------------------
Shares the sale of which is covered by a Registration Statement that has been
declared effective under the Securities Act, (ii) Common Shares which may be
transferred pursuant to Rule 144 (or any similar provision then in force, but
not Rule 144A) under the Securities Act, including a sale pursuant to the
provisions of Rule 144(k), and (iii) Common Shares which cease to be
outstanding.
"Registration Expenses" has the meaning set forth in Section 5.
---------------------
"Registration Statement" means any registration statement of the Company
----------------------
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement (including the Shelf Registration Statement), and all amendments and
supplements to any such registration statement, including post-effective
amendments, in each case including the Prospectus, all exhibits, and all
material incorporated by reference or deemed to be incorporated by reference in
such registration statement.
"Securities Act" means the Securities Act of 1933, as amended from time to
--------------
time, or any successor statute, and the rules and regulations of the Commission
promulgated thereunder.
"Shelf Registration" has the meaning set forth in Section 2.
------------------
"Shelf Registration Statement" has the meaning set forth in Section 2.
----------------------------
"Suspension Period" has the meaning set forth in Section 4.
-----------------
"Suspension Notice" has the meaning set forth in Section 4.
-----------------
"Target Effective Period" has the meaning set forth in Section 2.
-----------------------
Section 2. Shelf Registration. Prior to the date hereof, the Company has
------------------
filed and caused to become effective under the Securities Act a shelf
registration statement (the "Shelf Registration Statement") on the appropriate
form for an offering to be made on a continuous basis pursuant to Rule 415 under
the Securities Act (or such successor rule or similar provision
2
<PAGE>
then in effect) covering all of the Registrable Securities (a "Shelf
Registration"). The Company shall use commercially reasonable efforts to keep
such Shelf Registration Statement continuously effective for a period (the
"Target Effective Period") ending with the earlier of (a) the sale of all
Registrable Securities and (b) twelve (12) months following the Closing Date.
Section 3. Registration Procedures.
-----------------------
In connection with the obligations of the Company to register Registrable
Securities pursuant to the terms and conditions of this Agreement:
(a) The Company shall prepare and file with the Commission such post-
effective amendments to the Shelf Registration Statement as may be necessary to
keep such Shelf Registration Statement effective for the Target Effective
Period; shall cause the Prospectus included in such Shelf Registration Statement
to be supplemented by any required Prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act; and
shall comply with the provisions of the Securities Act applicable to it with
respect to the disposition of all Registrable Securities covered by such Shelf
Registration Statement.
(b) The Company shall furnish to any Holder, without charge, such
number of conformed copies of the Shelf Registration Statement and any post-
effective amendment thereto and such number of copies of the Prospectus
(including each preliminary Prospectus) and any amendments or supplements
thereto, as such Holder may reasonably request in order to facilitate the sale
of such Holder's Registrable Securities.
(c) The Company shall use commercially reasonable efforts to register
or qualify the Registrable Securities covered by the Shelf Registration
Statement under such other securities or "blue sky" laws of such states of the
United States as any Holder reasonably requests; provided, however, that the
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Company shall not be required (i) to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(c), (ii) to file any general consent to service of process, or (iii)
to subject itself to taxation in any jurisdiction where it would not otherwise
be subject to taxation.
(d) The Company shall promptly notify each Holder of the happening of
any event which makes any statement made in the Shelf Registration Statement or
related Prospectus untrue or which requires the making of any changes in such
Shelf Registration Statement or Prospectus so that it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and promptly
following expiration of any Suspension Period (as defined in Section 4), the
Company shall prepare and file with the Commission and furnish a supplement or
amendment to such Prospectus so that, as thereafter deliverable to the
purchasers of Registrable Securities, such Prospectus will not contain any
untrue statement of a
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material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) The Company shall use commercially reasonable efforts to prevent
the issuance of any order suspending the effectiveness of the Shelf Registration
Statement, and, if one is issued, the Company shall use commercially reasonable
efforts to obtain the withdrawal of such order as promptly as practicable.
(f) The Company shall cause the Registrable Securities included in any
Registration Statement to be listed on the New York Stock Exchange or such other
securities exchange on which similar securities issued by the Company are then
listed.
Section 4. Suspension Period.
-----------------
Each Holder, upon receipt of any notice (a "Suspension Notice") from the
Company of the happening of any event of the kind described in Section 4(e) or
of any event which, in the Company's reasonable business judgment, could become
such an event, shall immediately discontinue disposition of the Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 3(d) (the period from the date on which such
Holder receives a Suspension Notice to the date on which such Holder receives
copies of the supplemented or amended Prospectus is referred to herein as the
"Suspension Period"). If so directed by the Company, each Holder will deliver
to the Company all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities that
is current at the time of receipt of such notice. In the event that the Company
shall give any Suspension Notice, (i) the Company shall use commercially
reasonable efforts and take such actions as are reasonably necessary to end the
Suspension Period as promptly as practicable and (ii) the Target Effective
Period shall be extended by the number of days during the Suspension Period.
Section 5. Registration Expenses.
---------------------
Subject to the proviso below, any and all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, Commission and securities exchange registration and filing fees,
fees and expenses incurred in connection with compliance with state securities
or "blue sky" laws, printing expenses, fees and expenses incurred in connection
with the listing of the Registrable Securities and fees and disbursements of
counsel for the Company and of the independent certified public accountants of
the Company (all such expenses being herein called "Registration Expenses"),
will be borne by the Company; provided, however, that Registration Expenses
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shall not include (i) underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable Securities, (ii) any
fees or expenses of any counsel, accountants or other persons retained or
employed by the Holders, or (iii) out-of-pocket expenses of the Holders and
their agents, including, without limitation, any travel costs.
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Section 6. Indemnification and Contribution.
--------------------------------
(a) Indemnification by the Company. The Company agrees to indemnify
------------------------------
and hold harmless, to the full extent permitted by law, each Holder, its
officers, directors, employees and agents and each Person, if any, which
controls such Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, (collectively, "Controlling Persons"),
from and against all losses, claims, damages, liabilities and expenses
(including, without limitation, any legal or other fees and expenses reasonably
incurred by any Holder or any such Controlling Person in connection with
defending or investigating any action or claim in respect thereof)
(collectively, "Damages") to which any of them may become subject under the
Securities Act or otherwise, insofar as such Damages arise out of or are based
upon (i) any untrue or alleged untrue statement of material fact contained in
any Registration Statement (including any related preliminary or final
Prospectus) pursuant to which Registrable Securities were registered under the
Securities Act, or (ii) any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
Damages arise out of or are based upon any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Company by such Holder expressly for use therein.
(b) Indemnification by the Holders. Each Holder agrees to indemnify
------------------------------
and hold harmless, to the full extent permitted by law, the Company, its
directors, officers, employees and agents and each Controlling Person of the
Company, from and against any and all Damages to which any of them may become
subject under the Securities Act or otherwise to the same extent as the
foregoing indemnity from the Company to such Holder, but only to the extent such
Damages arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Company in writing by such Holder expressly for use in any Registration
Statement. In no event shall the liability of any Holder for indemnification
under this Section 6(b) in its capacity as such (and not in such Holder's
capacity as an officer or director of the Company) exceed the proceeds received
by such Holder from the sale of Registrable Securities under such Registration
Statement.
(c) Indemnification Procedures. In case any proceeding (including any
--------------------------
governmental investigation) shall be instituted involving any Person in respect
of which indemnity may be sought pursuant to either paragraph (a) or (b) above,
such Person (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 retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceedings and shall pay the fees and
disbursements of such counsel relating to such proceeding. The failure or delay
of an indemnified party to notify the indemnifying party with respect to a
particular proceeding shall not relieve the indemnifying party from any
obligation or liability which it may have pursuant
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to this Agreement if the indemnifying party is not prejudiced by such failure or
delay. In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent. No indemnifying party shall, without the prior written consent of any
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on all claims that are the subject
matter of such proceeding.
(d) Contribution. To the extent that the indemnification provided for
------------
in paragraph (a) or (b) of this Section 6 is held by a court of competent
jurisdiction to be unavailable to an indemnified party in respect of any
Damages, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such Damages (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand, and each Holder on the other, from the offering of
the Registrable Securities or (ii) if the allocation provided by clause (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 (i) above but
also the relative fault of the Company, on the one hand, and the Holders, on the
other, in connection with the statements or omissions which resulted in such
Damages, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Holders 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 by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
If indemnification is available under paragraph (a) or (b) of this
Section 6, the indemnifying parties shall indemnify each indemnified party to
the full extent provided in such paragraphs without regard to the relative
benefits to or relative fault of said indemnifying party or indemnified party or
any other equitable consideration provided for in this Section 7(d).
The Company and each Holder agrees that it would not be just or equitable
if contribution pursuant to this Section 6(d) were determined by pro rata
--- ----
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the Damages referred to in this Section 6
shall be deemed to include any legal or other expenses reasonably incurred (and
not otherwise reimbursed) by such indemnified party in connection with
investigating or defending any such action or claim. In no event shall any
Holder be required to contribute an amount under this Section 6(d) in excess of
the proceeds received by such Holder from the sale of Registrable Securities
under the relevant Registration Statement. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
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Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
Section 7. Restrictions on Sales by Holders.
--------------------------------
In the event of an underwritten public offering of securities of the
Company, each Holder shall, upon the written request of the managing underwriter
(or underwriters) of such offering, agree not to effect any sale or disposition
of any securities similar to those being registered in such offering, including,
without limitation, sales of Registrable Securities pursuant to the Shelf
Registration Statement, for such period (the "Lock-up Period"), not to exceed
180 days, as such underwriter may specify. Such agreement shall be in form and
substance satisfactory to the Company and such underwriter.
Section 8. Information Furnished by Holders.
--------------------------------
Each Holder shall furnish to the Company such information regarding such
Holder and such Holder's intended method of distribution of the Registrable
Securities as the Company may from time to time reasonably request in writing in
order to comply with the Securities Act and the provisions of this Agreement.
Each Holder agrees (a) to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by the Holder to the
Company or of the occurrence of any event, in either case as a result of which
any Prospectus contains or would contain an untrue statement of a material fact
regarding the Holder or the Holder's intended method of distribution of the
Registrable Securities or omits or would omit to state any material fact
regarding the Holder or the Holder's intended method of distribution of the
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and (b) to promptly furnish to the Company any additional information required
to correct and update any previously furnished information or required so that
the Prospectus shall not contain, with respect to the Holder or the Holder's
intended method of distribution of the Registrable Securities, 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 in
light of the circumstances then existing.
Section 9. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Holders of a majority in interest of the Registrable Securities then
outstanding.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt
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requested), postage prepaid or courier to the parties at their respective
addresses set forth on the signature pages hereof (or at such other address for
any party as shall be specified by like notice, provided that notices of a
change of address shall be effective only upon receipt thereof). All such
notices and communications shall be deemed to have been received: at the time
delivered by hand, if personally delivered; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if telecopied; and on the next Business Day, if timely delivered to a courier
guaranteeing overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors of each of the parties. No Holder may
assign any of its rights hereunder without the prior written consent of the
Company.
(d) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of The Commonwealth of Massachusetts without regard
to principles of conflicts of law.
(g) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the Holders
shall be enforceable to the fullest extent permitted by law.
(h) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and is intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
[End of Text]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
MAC-GRAY CORPORATION
By:/s/ Stewart Gray MacDonald
-------------------------------
Stewart G. MacDonald
Chief Executive Officer
HOLDERS:
- -------
/s/ Edward J. Goulart
-------------------------------------
Edward J. Goulart
/s/ Ronald R. Jalbert
---------------------------------------
Ronald R. Jalbert
/s/ Robert W. LaRoche
-----------------------------------
Robert W. LaRoche
/s/ Peter B. Finn
----------------------------------------
Peter B. Finn
/s/ David Luongo
---------------------------------------
David Luongo
/s/ Joseph J. Tischler
----------------------------------------
Joseph J. Tischler
MASSACHUSETTS CAPITAL
RESOURCE COMPANY
By: /s/ Kenneth J. Lavery
--------------------------------
Kenneth J. Lavery
Vice President
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the prospectus
constituting part of this Registration Statement on Form S-3 (No. 333-49795) of
Mac-Gray Corporation of our report dated January 30, 1998, except as to the
pooling of interests with Intirion Corporation which is as of March 12, 1998,
relating to the consolidated financial statements of Mac-Gray Corporation and
our report dated May 2, 1997 relating to the combined financial statements of
Sun Services of America, Inc. and R. Bodden Coin-Op-Laundry, Inc., which appear
in Form 8-K of Mac-Gray Corporation dated November 17, 1998. We also consent to
the reference to us under the heading "Experts" in such prospectus.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
February 25, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the prospectus
constituting part of this Registration Statement of Mac-Gray Corporation on
Form S-3 (File No. 333-49795), of our report dated February 17, 1998, relating
to the financial statements of Amerivend Corporation as of December 31, 1997.
We also consent to the reference to us under the heading "Experts" in such
prospectus.
/s/ Morrison, Brown, Argiz & Company
Miami, Florida
February 25, 1999
