<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 29, 1998
REGISTRATION NO. 333-53639
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO THE
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MIAMI COMPUTER SUPPLY CORPORATION
(Exact name of registrant as specified in its articles of incorporation)
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<S> <C> <C>
OHIO 5110 31-1001529
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
</TABLE>
4750 HEMPSTEAD STATION DRIVE
DAYTON, OHIO 45429
(937) 291-8282
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
MICHAEL E. PEPPEL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MIAMI COMPUTER SUPPLY CORPORATION
4750 HEMPSTEAD STATION DRIVE
DAYTON, OHIO 45429
(937) 291-8282
(Name and address, including zip code, of agent for service)
------------------------
COPIES TO:
TIMOTHY B. MATZ, ESQ. ANDREW C. LYNCH, ESQ.
JEFFREY A. KOEPPEL, ESQ. E. LEIGH GILLETT, ESQ.
Elias, Matz, Tiernan & Herrick L.L.P. Jenkens & Gilchrist, P.C.
734 15th Street, N.W., 12th Floor 1919 Pennsylvania Avenue, N.W., Suite
Washington, D.C. 20005 600
Washington, D.C. 20006-3404
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
The purpose of the filing of this Amendment No. 2 to the Registration
Statement on Form S-1 of Miami Computer Supply Corporation is to make certain
revisions in Part II of the Registration Statement and to file certain Exhibits
to the Registration Statement not previously filed.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amount of expenses (other
than underwriting discounts and commissions) to be borne by the Registrant in
connection with the Offering.
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<CAPTION>
SEC filing fees................................................ $12,425.00
<S> <C>
NASD fees...................................................... 4,712.00
Nasdaq 10b-17 fees............................................. 17,500.00
Printing, postage and mailing.................................. 95,000.00
Legal fees and expenses........................................ 120,000.00
Blue Sky fees and expenses..................................... 5,000.00
Accounting fees and expenses................................... 120,000.00
Miscellaneous fees and expenses................................ 225,363.00
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Total.......................................................... $600,000.00
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</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is an Ohio corporation. Section 1701.59 of the Ohio General
Corporation law (the "OGCL") states:
"(B) A director shall perform his duties as a director, including his duties
as a member of any committee of the directors upon which he may serve, in good
faith, in a manner he reasonably believes to be in or not opposed to the best
interests of the corporation, and with the care that an ordinarily prudent
person in a like position would use under similar circumstances. In performing
his duties, a director is entitled to rely on information, opinions, reports, or
statements, including financial statements and other financial data, that are
prepared or presented by:
(1) One or more directors, officers, or employees of the corporation who
the director reasonably believes are reliable and competent in the matters
prepared or presented;
(2) Counsel, public accountants, or other persons as to matters that the
director reasonably believes are within the person's professional or expert
competence;
(3) A committee of the directors upon which he does not serve, duly
established in accordance with a provision of the articles or the
regulations, as to matters within its designated authority, which committee
the director reasonably believes to merit confidence.
(C) For purposes of division (B) of this section:
(1) A director shall not be found to have violated his duties under
division (B) of this section unless it is proved by clear and convincing
evidence that the director has not acted in good faith, in a manner he
reasonably believes to be in or not opposed to the best interests of the
corporation, or with the care that an ordinarily prudent person in a like
position would use under similar circumstances in any action brought against
a director, including actions involving or affecting any of the following:
(a) A change or potential change in control of the corporation,
including a determination to resist a change or potential change in
control made pursuant to division (F) (7) of section 1701.13 of the
Revised Code.
(b) A termination or potential termination of his service to the
corporation as a director;
(c) His service in any other position or relationship with the
corporation.
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(2) A director shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause reliance on
information, opinions, reports, or statements that are prepared or presented
by the persons described in divisions (B)(1) to (3) of this section to be
unwarranted.
(3) Nothing contained in this division limits relief available under
section 1701.60 of the Revised Code.
(D) A director shall be liable in damages for any action he takes or fails
to take as a director only if it is proved by clear and convincing evidence in a
court of competent jurisdiction that his action or failure to act involved an
act or omission undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best interests of the
corporation. Nothing contained in this division affects the liability of
directors under section 1701.95 of the Revised Code or limits relief available
under section 1701.60 of the Revised Code. This division does not apply if, and
only to the extent that, at the time of a director's act or omission that is the
subject of complaint, the articles or the regulations of the corporation state
by specific reference to this division that the provisions of this division do
not apply to the corporation.
(E) For purposes of this section, a director, in determining what he
reasonably believes to be in the best interests of the corporation, shall
consider the interests of the corporation's shareholders and, in his discretion,
may consider any of the following:
(1) The interests of the corporation's employees, suppliers, creditors,
and customers;
(2) The economy of the state and nation;
(3) Community and societal considerations;
(4) The long-term as well as short-term interests of the corporation and
its shareholders, including the possibility that these interests may be best
served by the continued independence of the corporation.
(F) Nothing contained in division (C) or (D) of this section affects the
duties of either of the following:
(1) A director who acts in any capacity other than his capacity as a
director;
(2) A director of a corporation that does not have issued and
outstanding shares that are listed on a national securities exchange or are
regularly quoted in an over-the-counter market by one or more members of a
national or affiliated securities association, who votes for or assents to
any action taken by the directors of the corporation that, in connection
with a change in control of the corporation, directly results in the holder
or holders of a majority of the outstanding shares of the corporation
receiving a greater consideration for their shares than other shareholders."
Section 1701.13(E) of the OGCL states:
"(E) (1) A corporation may indemnify or agree to indemnify any person who was
or is a party, or is threatened to be made a party, to any threatened,
pending, or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative, other than an action by or in the right of
the corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, against expenses, including
attorney's fees, judgments, fines, and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, if he had no reasonable cause
to
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<PAGE>
believe his conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of it self, create a
presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any person who was
or is a party, or is threatened to be made a party to any threatened,
pending, or completed action or suit by or in the right of the corporation
to procure a judgment in its favor, by reason of the fact that he is or was
a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation, as a director, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of his duty
to the corporation unless, and only to the extent that, the court of
common pleas of the court in which such action or suit was brought
determines, upon application, that, despite the adjudication of
liability, but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses as the
court of common pleas or such other court shall deem proper;
(b) Any action or suit in which the only liability asserted against a
director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense
of any action, suit, or proceeding referred to in division (E)(1) or (2) of
this section, or in defense of any claim, issue, or matter therein, he shall
be indemnified against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the action, suit, or
proceeding.
(4) Any indemnification under division (E)(1) or (2) of this section,
unless ordered by a court, shall be made by the corporation only as
authorized in the specific case, upon a determination that indemnification
of the director, trustee, officer, employee, member, manager or agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in division (E)(1) or (2) of this section. Such
determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are not parties to or
threatened with the action, suit, or proceeding referred to in division
(E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested
directors so directs, in a written opinion by independent legal counsel
other than an attorney, or a firm having associated with it an attorney,
who has been retained by or who has performed services for the
corporation or any person to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (E)(1) or (2) of this section
was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who
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<PAGE>
threatened or brought the action or suit by or in the right of the corporation
under division (E)(2) of this section, and, within ten days after receipt of
such notification, such person shall have the right to petition the court of
common pleas or the court in which such action or suit was brought to review the
reasonableness of such determination.
(5) (a) Unless at the time of a director's act or omission that is the
subject of an action, suit, or proceeding referred to in division (E)(1)
or (2) of this section, the articles or the regulations of a corporation
state, by specific reference to this division, that the provisions of
this division do not apply to the corporation and unless the only
liability asserted against a director in an action, suit, or proceeding
referred to in division (E)(1) or (2) of this section, the articles or
the regulations of a corporation state, by specific reference to this
division, that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a director in
an action, suit, or proceeding referred to in division (E)(1) or (2) of
this section is pursuant to section 1701.95 of the Revised Code,
expenses, including attorney's fees, incurred by a director in defending
the action, suit, or proceeding shall be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit, or
proceeding, upon receipt of an undertaking by or on behalf of the
director in which he agrees to do both of the following:
(i) Repay such amount if it is provided by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the corporation or undertaken with reckless
disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member manager, or agent in defending any
action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, may be paid by the corporation as they are incurred, in advance
of the final disposition of the action, suit, or proceeding, as
authorized by the directors in the specific case, upon the receipt of an
undertaking by or on behalf of the director, trustee, officer employee,
member, manager, or agent to repay such amount, if it ultimately is
determined that he is not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to those
seeking indemnification under the articles, the regulations, any agreement,
a vote of shareholders or disinterested directors, or otherwise, both as to
action in their official capacities and as to action in another capacity
while holding their offices or positions, and shall continue as to a person
who has ceased to be a director, trustee, officer, employee, member,
manager, or agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
(7) A corporation may purchase and maintain insurance or furnish similar
protection, including, but not limited to, trust funds, letters of credit,
or self-insurance, on behalf of or for any person who is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under this section. Insurance may be
purchased from or maintained with a person in which the corporation has a
financial interest.
(8) The authority of a corporation to indemnify persons pursuant to
division (E)(1) or (2) of this section does not limit the payment of
expenses as they are incurred, indemnification, insurance, or
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other protection that may be provided pursuant to divisions (E)(5), (6), and
(7) of this section. Divisions (E)(1) and (2) of this section do not create
any obligation to repay or return payments made by the corporation pursuant
to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation" includes all
constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer, employee,
trustee, member, manager, or agent of such a constituent entity, or is or
was serving at the request of such constituent entity as a director,
trustee, officer, employee, member, manager, or agent or another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect
to the new or surviving corporation as he would if he had served the new or
surviving corporation in the same capacity."
The Amended and Restated Articles of Incorporation ("Articles") of the
Company also limit the liability of, and provide indemnification to, directors
and officers of the Company. Article VIII of the Company's Articles states:
"A. LIMITATION OF LIABILITY. No director shall be personally liable to the
Corporation or its shareholders for monetary damages for any act or omission by
such director as a director; provided that a director's liability shall not be
limited or eliminated to the extent that it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the Corporation, or was undertaken with reckless disregard for the best
interests of the Corporation. No amendment to or repeal of this Article VIII.A.
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
B. INDEMNIFICATION. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative, by reason of the fact that such person is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee, member, manager or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, partnership, joint
venture, trust or other enterprise or employee benefit plan, against liability
and expenses (including court costs and attorney's fees), judgments, fines,
excise taxes and amounts paid in satisfaction, settlement or compromise actually
and reasonably incurred by such person in connection with such action, suit or
proceeding to the full extent authorized by Section 1701.13 of the OGCL or any
successor provision thereto.
C. ADVANCEMENT OF EXPENSES. Reasonable expenses incurred by a director,
officer, employee or agent of the Corporation in defending an action, suit or
proceeding described in Article VIII.B. shall be paid by the Corporation as they
are incurred, in advance of the final disposition of such action, suit or
proceeding, as authorized by the Board of Directors only upon receipt of written
affirmation by or on behalf of such person in which he agrees to do both of the
following: (i) repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with the deliberate intent to cause
injury to the Corporation or undertaken with reckless disregard for the best
interests of the Corporation, and (ii) reasonably cooperate with the Corporation
concerning the action, suit or proceeding.
D. OTHER RIGHTS AND REMEDIES. The indemnification provided by this Article
VIII shall not be deemed to exclude any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the
Corporation's Articles of Amendment, any insurance or other agreement, trust
fund, letter of credit, surety bond, vote of shareholders or disinterested
directors or otherwise, both as to actions in their official capacity and as to
actions in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee, member, manager or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person; provided that no
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indemnification shall be made to or on behalf of an individual in respect of any
of the following: (i) any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Corporation unless, and only to the extent that, a court of
competent jurisdiction determines that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court shall deem
proper; or (ii) any action or suit in which the only liability asserted against
a director is pursuant to Section 1701.95 of the OGCL or any successor thereto.
E. INSURANCE. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee, or agent of the Corporation, or was
serving at the request of the Corporation as a director, officer, employee,
member, manager or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, partnership, joint venture, trust or
another enterprise or employee benefit plan, against any liability asserted
against him or incurred by him in any such capacity, or arising out of his
status, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article or the OGCL.
F. MODIFICATION. The duties of the Corporation to indemnify and to advance
expenses to a director, officer, employee or agent provided in this Article VIII
shall be in the nature of a contract between the Corporation and each such
director, officer, employee or agent and no amendment or repeal of any provision
of this Article VIII shall alter, to the detriment of such director, officer,
employee or agent, the right of such person to the advance of expenses or
indemnification related to a claim based on an act or failure to act which took
place prior to such amendment or repeal."
Article X of the Company's Code of Regulations states:
"(a) A director of the Corporation shall not be personally liable for
monetary damages for action taken, or any failure to take action, as a
director, to the extent set forth in the Corporation's Amended and Restated
Articles of Incorporation, which provisions are incorporated herein with the
same affect as if they were set forth herein.
(b) The Corporation shall indemnify any person who is a director,
officer, employee or agent of the Corporation to the extent set forth in the
Corporation's Amended and Restated Articles of Incorporation, which
provisions are incorporated herein with the same affect as if they were set
forth herein."
In addition, the Company maintains a directors and officers liability
insurance policy relating to certain actions or omissions which may be taken, or
omitted to be taken, by the directors and officers of the Company, as well as a
policy which insures against errors and omissions in the offering documents
relating to the offer and sale of the Common Stock to the public.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On April 30, 1997, the Company purchased certain specified assets and
assumed certain liabilities of Imperial Data Supply Corporation, a Washington
Corporation ("IDSC"). The Company issued 106,383 shares of its Common Stock to
John Keegan, the President and a stockholder of IDSC, Valerie Keegan, the wife
of John Keegan a stockholder of IDSC, Melva Potter, a stockholder of IDSC and
the William H. Potter Testamentary Trust, also a stockholder of IDSC, in
exchange for said assets.
On July 1, 1997, the Company acquired Force 4 D.P. Supplies, Inc., an Oregon
corporation ("Force 4"), by means of Force 4's merger with and into MCSC Oregon
Acquisition Corporation, a subsidiary of the Company organized in Oregon. The
Company issued 129,730 shares of its Common Stock to Daniel W. Wisdom, President
and sole stockholder of Force 4, in exchange for 100% of the issued and
outstanding common stock of Force 4.
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On July 15, 1997, the Company acquired Data Associates, Inc., a Georgia
corporation ("Data"), by means of Data's merger with and into MCSC Georgia
Acquisition Corporation, a subsidiary of the Company organized in Georgia. The
Company issued 154,996 shares of its Common Stock to Gerald G. Gould, President
and 50.1% stockholder of Data, and J. Philip Crone, Vice President and 49.9%
stockholder of Data, in exchange for 100% of the issued and outstanding common
stock of Data.
On October 8, 1997, the Company acquired NTI Data Products, Inc. a New
Hampshire corporation ("NTI"), by means of NTI's merger with and into MCSC New
Hampshire Acquisition Corporation, a subsidiary of the Company organized in New
Hampshire. The Company issued 137,501 shares of its Common Stock to Thomas R.
James, President and a stockholder of NTI, and Stephen M. Mulloy, Vice President
and a stockholder of NTI, in exchange for 100.0% of the issued and outstanding
common stock of NTI.
On December 5, 1997, the Company acquired Britco, Inc., a Texas corporation
("Britco"), by means of Britco's merger with and into MCSC Texas Acquisition
Corporation, a subsidiary of the Company organized in Texas. The Company issued
275,000 shares of its Common Stock to Gretchen K. Ferguson, the President and a
stockholder of Britco, and Charles L. Ferguson, the Vice President and a
stockholder of Britco, in exchange for 100.0% of the issued and outstanding
common stock of Britco.
On December 31, 1997, the Company acquired TBS Printware Corporation, a
California corporation ("TBS"), by means of TBS's merger with and into MCSC
Fremont Acquisition Corporation, a subsidiary of the Company organized in
California. The Company issued 315,000 shares of its Common Stock to Robert
Salomon, a director, the Chief Executive Officer and a stockholder of TBS, John
McCoubrie, a director, the President and a stockholder of TBS and Lothar Rowe, a
director and a stockholder of TBS in exchange for 100.0% of the issued and
outstanding common stock of TBS.
On January 15, 1998, the Company acquired Minnesota Western/Creative Office
Products, Inc., a California corporation ("MW"), by means of MW's merger with
and into MCSC California Acquisition Corporation, a subsidiary of the Company
organized in California. The Company issued 1,322,555 shares of its Common Stock
to H. Clark Gilson, a director, the President and a stockholder of MW,
individually and together with Kay A. Gilson, his spouse, as Trustees of the
Gilson Trust, dated November 5, 1993, Ruy J. Pereira, a director, a Vice
President and a stockholder of MW, individually and as Trustee of the Pereira
Trust, dated November 12, 1992, Mr. Larry R. Goodman, a director, a Vice
President and a stockholder of MW, individually and together with Linda D.
Goodman, his spouse, as Trustees of the Goodman Trust, dated February 7, 1994,
in exchange for 100.0% of the issued and outstanding common stock of MW.
On March 3, 1998, the Company acquired Computer Showcase, Inc., a Georgia
corporation ("CSI"), by means of CSI's merger with and into MCSC Bulldog
Acquisition Corporation, a subsidiary of the Company organized in Georgia. The
Company issued 180,269 shares of its Common Stock to Deborah Smith, a director,
the President and a stockholder of CSI and Jerrold H. Smith, a director, the
Vice President and a stockholder of CSI, in exchange for 100.0% of the issued
and outstanding common stock of CSI.
On June 15, 1998, the Company acquired Electronic Image Systems, Inc., a
Washington corporation ("EIS"), by means of EIS's merger with and into MCSC
Cougar Acquisition Corporation, a subsidiary of the Company organized in
Washington. The Company issued 132,136 shares of its Common Stock to Michael C.
Richardson, a director, the Chief Executive Officer, Secretary, and Vice
President and a stockholder of EIS and Michael A. Clark, a director, the
President and a stockholder of EIS, in exchange for 100% of the issued and
outstanding common stock of EIS.
Each of the foregoing transactions was exempt from the registration
requirements of the Securities Act under Section 4(2) thereof and Rule 506 of
Regulation D of the General Rules and Regulations promulgated thereunder
("Regulation D"). The securities in each of the foregoing acquisitions were
privately placed with individuals, who represented their status as accredited
investors as that term is defined in Rule 501(a) of Regulation D.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
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EXHIBIT NO. INDEX TO EXHIBITS DESCRIPTION
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1.0 Underwriting Agreement.
3.1 Amended and Restated Articles of Incorporation of Miami Computer Supply Corporation.(1)
3.2 Amended and Restated Code of Regulations of Miami Computer Supply Corporation.(1)
4.0 Form of Stock Certificate of Miami Computer Supply Corporation.(1)
5.0 Opinion of Elias, Matz, Tiernan & Herrick L.L.P. re: legality.
10.1 Lease by and between Draft Partnership and Miami Computer Supply, Inc. dated October 26, 1995.(1)
10.2 Lease by and between John Schwarz, Sr., Marcella Schwarz, John and Robert T. Schwarz and Miami
Computer Supply, Inc., dated June 30, 1994.(1)
10.3 Miami Computer Supply, Inc. Profit Sharing Plan.(1)
10.4 Miami Computer Supply, Inc. Section 125C Cafeteria Plan.(1)
10.5 Credit Facility between Miami Computer Supply, Inc. and National City Bank, as Administrative Agent,
and the Named Lending Institutions, dated January 8, 1998.(2)
10.5 (a) Amendment No. 1 to Credit Facility dated February 13, 1998.(2)
10.5 (b) Amendment No. 2 to the Credit Facility dated May 15, 1998.*
10.6 Epson Authorized Reseller Agreement dated June 28, 1995.(1)
10.7 Proxima Reseller Agreement dated May 29, 1996.(1)
10.8 Hewlett Packard U.S. Reseller Channel Agreement as amended January 1, 1996.(1)
10.9 Lexmark Dealer Agreement dated November 1986.(1)
10.10 3M Authorized Distributor Agreement dated January 27, 1987.(1)
10.11 Employment Agreement by and between Miami Computer Supply, Inc., and Thomas C. Winstel dated May 30,
1996.(1)
10.12 Employment Agreement by and between Miami Computer Supply, Inc. and Richard A. Newkold dated May 30,
1996.(1)
10.13 Employment Agreement by and between Miami Computer Supply, Inc. and Roger E. Turvy dated May 30,
1996.(1)
10.14 Employment Agreement by and between Miami Computer Supply, Inc. and Michael E. Peppel dated May 30,
1996.(1)
10.15 Employment Agreement by and between Miami Computer Supply, Inc. and John C. Huffman III dated May 30,
1996.(1)
10.16 Split Dollar Agreement by and between Miami Computer Supply, Inc. and Thomas C. Winstel dated December
1, 1995.(1)
10.17 Split Dollar Agreement by and between Miami Computer Supply, Inc. and Richard A. Newkold dated
December 1, 1995.(1)
10.18 Split Dollar Agreement by and between Miami Computer Supply, Inc. and Roger E. Turvy dated December 1,
1995.(1)
10.19 Miami Computer Supply Corporation 1996 Stock Option Plan.(1)
10.20 Miami Computer Supply Corporation Non-employee Director Stock Option Plan.(1)
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. INDEX TO EXHIBITS DESCRIPTION
- ------------ ------------------------------------------------------------------------------------------------------
<C> <S>
10.21 Severance Agreement for Albert L. Schwarz dated December 23, 1997.(3)
10.22 Miami Computer Supply Corporation 1998 Employee Payroll Deduction Stock Purchase Plan.*
10.23 Miami Computer Supply 1998 Stock Option Plan.*
10.24 Agreement and Plan of Reorganization by and between Miami Computer Supply Corporation, MCSC Texas
Acquisition Corporation, Britco, Inc., Gretchen K. Ferguson and Charles L. Ferguson dated November
26, 1997.(4)
10.25 Agreement and Plan of Reorganization by and among Miami Computer Supply Corporation, MCSC California
Acquisition Corporation, Minnesota Western/Creative Office Products, Inc. and the Named Stockholders
dated November 21, 1997.(5)
10.26 Agreement and Plan of Reorganization by and among Miami Computer Supply Corporation, MCSC Fremont
Acquisition Corporation, TBS Printware Corporation and the Named Stockholders dated December 23,
1997.(6)
10.27 Lease Agreement by and between 921 Parker Street, a California General Partnership, and Minnesota
Western/Creative Office Products, Inc. dated July, 1994.*
10.28 Lease Agreement by and between 180 S. Prospect Partners and Minnesota Western/Creative Office
Products, Inc. dated August 26, 1996.*
21.0 Subsidiaries of the Registrant.*
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P.(7)
23.2 Consent of Price Waterhouse LLP.
24.0 Power of Attorney.*
27.0 Financial Data Schedule.(8)
</TABLE>
- ------------------------
* Previously filed.
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 as filed with the Commission on November 11, 1996, SEC File No.
333-12689.
(2) Incorporated by reference from the Company's Registration Statement on Form
S-3 as filed with the Commission on March 5, 1998, SEC File No. 333-36299.
(3) Incorporated by reference from the Company's Form 8-K as filed with the
Commission on January 2, 1998, SEC File No. 000-21561.
(4) Incorporated by reference from the Company's Current Report on Form 8-K as
filed with the Commission on December 15, 1997, SEC File No. 000-21561.
(5) Incorporated by reference from the Company's Current Report on Form 8-K as
filed with the Commission on January 30, 1998, SEC File No. 000-21561.
(6) Incorporated by reference from the Company's Current Report on Form 8-K as
filed with the Commission on February 12, 1998, SEC File No. 000-21561.
(7) Incorporated by reference to Exhibit No. 5.
(8) Incorporated by reference from the Company's Quarterly Report on Form 10-Q
for the three months ended March 31, 1998, SEC File No. 000-21561.
II-9
<PAGE>
(b) FINANCIAL STATEMENT SCHEDULES
All schedules have been omitted as not applicable or not required under the
rules of Regulation S-X.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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) The undersigned Registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreement,
certificates in such denominations and registered in such names as
required by the underwriter to permit prompt delivery to each purchaser.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant 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, the Registrant 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 of whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Form S-1 Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Dayton, Ohio on
June 25, 1998.
<TABLE>
<S> <C> <C>
MIAMI COMPUTER SUPPLY CORPORATION
By: /s/ MICHAEL E. PEPPEL
-----------------------------------------
Michael E. Peppel
President and Chief Executive Officer
</TABLE>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ ANTHONY W. LIBERATI*
- ------------------------------ Chairman of the Board June 25, 1998
Anthony W. Liberati
Director, President and
/s/ MICHAEL E. PEPPEL Chief Executive Officer
- ------------------------------ (Principal executive June 25, 1998
Michael E. Peppel officer)
/s/ ROBERT G. HECHT*
- ------------------------------ Director and Vice Chairman June 25, 1998
Robert G. Hecht of the Board
/s/ HARRY F. RADCLIFFE*
- ------------------------------ Director and Treasurer June 25, 1998
Harry F. Radcliffe
/s/ THOMAS C. WINSTEL
- ------------------------------ Director, Secretary and June 25, 1998
Thomas C. Winstel Vice President
/s/ IRA H. STANLEY Vice President-Finance
- ------------------------------ (Principal financial and June 25, 1998
Ira H. Stanley accounting officer)
- ------------------------------
*By: Michael E. Peppel,
attorney-in-fact
II-11
<PAGE>
MIAMI COMPUTER SUPPLY CORPORATION
(AN OHIO CORPORATION)
2,100,000 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
June 29, 1998
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
WILLIAM BLAIR & COMPANY, L.L.C.
MORGAN KEEGAN & COMPANY, INC.
c/o Friedman, Billings, Ramsey & Co., Inc.
1001 Nineteenth Street North
10th Floor
Arlington, Virginia 22209
On behalf of the Several Underwriters
named on Schedule I attached hereto.
Dear Sirs:
Miami Computer Supply Corporation, an Ohio corporation (the "Company"),
sets forth its agreement with Friedman, Billings, Ramsey & Co., Inc., William
Blair & Company, L.L.C., Morgan Keegan & Company, Inc. and each of the other
Underwriters listed on Schedule I hereto (collectively, the "Underwriters"), for
whom Friedman, Billings, Ramsey & Co., Inc., William Blair & Company, L.L.C. and
Morgan Keegan & Company, Inc. are acting as representatives (in such capacity,
the "Representatives"), with respect to (i) the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, no par value per share, of the
Company ("Common Stock") set forth in Schedule I hereto and (ii) the grant by
the Company to the Underwriters, acting severally and not jointly, of the option
described in Section 1(b) hereof to purchase all or any part of 315,000
additional shares of Common Stock to cover over-allotments, if any. The
2,100,000 shares of Common Stock (the "Initial Shares") to be purchased by the
Underwriters and all or any part of the 315,000 shares of Common Stock subject
to the option described in Section 1(b) hereof (the "Option Shares") are
hereinafter called, collectively, the "Shares." Friedman, Billings, Ramsey &
Co., Inc. has the authority to act on behalf of the several Underwriters and the
Representatives hereunder.
The Company understands that the Underwriters propose to make a public
offering of the Shares as soon as Friedman, Billings, Ramsey & Co., Inc. deems
advisable after this Agreement has been executed and delivered.
1
<PAGE>
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-1 (No. 333-53639) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company has
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required pursuant to the Securities Act or the Securities Act
Regulations. The registration statement has been declared effective under the
Securities Act by the Commission. The registration statement as amended at the
time it became effective (including all information deemed to be a part of the
registration statement at the time it became effective pursuant to Rule 430A(b)
and/or Rule 434 of the Securities Act Regulations) is hereinafter called the
"Registration Statement," except that, if the Company files a post-effective
amendment to such registration statement which becomes effective prior to the
Closing Time (as defined below), "Registration Statement" shall refer to such
registration statement as so amended. Any registration statement filed pursuant
to Rule 462(b) of the Securities Act Regulations is hereinafter called the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the 462(b) Registration Statement. Each prospectus
included in the registration statement, or amendments thereof or supplements
thereto, before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Securities Act Regulations is hereinafter called
the "Preliminary Prospectus." The term "Prospectus" means the final prospectus,
as first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Securities Act Regulations, and any amendments thereof or
supplements thereto and any revised prospectus that shall be provided to the
Underwriters by the Company for use in connection with the offering of the
Shares which differs from the Prospectus on file at the Commission at the time
the Registration Statement became or becomes effective (whether or not such
revised prospectus is required to be filed by the Company pursuant to Rule
424(b)). The term "Prospectus" shall refer to such revised prospectus from and
after the time it was provided to the Underwriters for such use. The Commission
has not issued any order preventing or suspending the use of any Preliminary
Prospectus.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE:
(a) INITIAL SHARES. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter agrees, severally and not jointly, to purchase from the Company at
the purchase price per share of $______, the number of Initial Shares set forth
in Schedule I opposite such Underwriter's name, plus any additional number of
Initial Shares which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 8 hereof, subject in each case, to such adjustments
among the Underwriters as Friedman, Billings, Ramsey & Co., Inc. in its sole
discretion shall make to eliminate any sales or purchases of fractional shares.
The Underwriters may from time to time increase or decrease the public offering
price after the public offering to such extent as the Underwriters may
determine.
2
<PAGE>
(b) OPTION SHARES. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase from the Company up to an aggregate of 315,000 Option Shares at the
purchase price per share set forth in paragraph (a) above plus any additional
number of Option Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 8 hereof. The option hereby granted will
expire 30 days after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial Shares upon
notice by Friedman, Billings, Ramsey & Co., Inc. to the Company setting forth
the number of Option Shares as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Shares. Any such time and date of delivery (a "Date of Delivery") shall
be determined by Friedman, Billings, Ramsey & Co., Inc., but shall not be later
than five full business days (or earlier, without the consent of the Company,
than three full business days) after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Shares, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Shares then being purchased which the number of
Initial Shares set forth in Schedule I opposite the name of such Underwriter
bears to the total number of Initial Shares, subject in each case to such
adjustments as Friedman, Billings, Ramsey & Co., Inc. in its sole discretion
shall make to eliminate any sales or purchases of fractional shares. The
Underwriters may from time to time increase or decrease the public offering
price of the Option Shares after the public offering to such extent as the
Underwriters may determine.
2. PAYMENT AND DELIVERY:
(a) INITIAL SHARES. Payment of the purchase price for the Initial
Shares shall be made to the Company by wire transfer of immediately available
funds or certified or official bank check payable in federal (same-day) funds
(at the option of the Company) at the offices of Jenkens & Gilchrist, a
Professional Corporation located at 1919 Pennsylvania Avenue, N.W., Suite 600,
Washington, D.C. 20006 (unless another place shall be agreed upon by Friedman,
Billings, Ramsey & Co., Inc. and the Company) against delivery of the
certificates for the Initial Shares to the Representatives for the respective
accounts of the Underwriters. Such payment and delivery shall be made at 9:30
a.m., New York City time, on the third (fourth, if pricing occurs after 4:30
p.m., New York City time) business day after the date hereof (unless another
time, not later than ten business days after such date, shall be agreed to by
Friedman, Billings, Ramsey & Co., Inc. and the Company). The time at which such
payment and delivery are actually made is hereinafter sometimes called the
"Closing Time." Certificates for the Initial Shares shall be delivered to the
Representatives in definitive form registered in such names and in such
denominations as the Representatives shall specify by notice to the Company on
or prior to 9:30 a.m., New York City time, on the second business day preceding
the Closing Time. For the purpose of expediting the checking of the
certificates for the Initial Shares by the Representatives, the Company agrees
to make such certificates available to the Representatives for such purpose at
least one full business day preceding the Closing Time.
(b) OPTION SHARES. In addition, payment of the purchase price for
the Option Shares shall be made to the Company by wire transfer of immediately
available funds or certified or
3
<PAGE>
official bank check payable in federal (same-day) funds (at the option of the
Company) at the offices of Jenkens & Gilchrist, a Professional Corporation
located at 1919 Pennsylvania Avenue, N.W., Suite 600, Washington, D.C. 20006
(unless another place shall be agreed upon by Friedman, Billings, Ramsey & Co.,
Inc. and the Company), against delivery of the certificates for the Option
Shares to the Representatives for the respective accounts of the Underwriters.
Such payment and delivery shall be made at 9:30 a.m., New York City time, on
each Date of Delivery. Certificates for the Option Shares shall be delivered to
the Representatives in definitive form registered in such names and in such
denominations as the Representatives shall specify by notice to the Company on
or prior to 9:30 a.m., New York City time, on the second business day preceding
the Closing Time. For the purpose of expediting the checking of the
certificates for the Option Shares by the Representatives, the Company agrees to
make such certificates available to the Representatives for such purpose at
least one full business day preceding the relevant Date of Delivery.
Friedman, Billings, Ramsey & Co., Inc. has advised the Company that each
Underwriter has authorized the Representatives to accept delivery of the Shares
and to make payment and receipt therefor.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY: The Company represents
and warrants to the Underwriters that:
(a) the Company has an authorized capitalization as set forth in the
Prospectus under the caption "Capitalization" at the dates indicated; the
outstanding shares of capital stock of the Company and its direct and indirect
subsidiaries (the "Subsidiaries") have been duly and validly authorized and
issued and are fully paid and non-assessable, and all of the outstanding shares
of capital stock of the Subsidiaries are directly or indirectly owned of record
and beneficially by the Company; except as disclosed in the Prospectus, there
are no outstanding (i) securities or obligations of the Company or any of its
Subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such Subsidiary, (ii) warrants, rights or options to subscribe
for or purchase from the Company or any such Subsidiary any such capital stock
or any such convertible or exchangeable securities or obligations, or (iii)
except for shares issuable to the former owners of TBS Printware Corporation,
Data Associates, Inc., Computer Showcase, Inc. and Electronic Image Systems,
Inc. pursuant to the respective Agreements and Plans of Reorganization,
obligations of the Company or any such Subsidiary to issue any shares of capital
stock, any such convertible or exchangeable securities or obligation, or any
such warrants, rights or options;
(b) the Company and the Company's Subsidiaries (all of which are
named in an exhibit to the Registration Statement) each has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its respective jurisdiction of incorporation with full corporate power
and authority to own its respective properties and to conduct its respective
business as described in the Registration Statement and Prospectus and, in the
case of the Company, to execute and deliver this Agreement, the other agreements
described in the Prospectus, and the material contracts of the Company, and to
consummate the transactions described herein and therein;
(c) the Company and all of its Subsidiaries are duly qualified or
licensed by each jurisdiction in which they conduct their respective businesses
and in which the failure, individually or in the aggregate, to be so qualified
or licensed could have a material adverse effect on the assets,
4
<PAGE>
operations, business or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole; except as disclosed in the Registration
Statement, no Subsidiary is prohibited or restricted, directly or indirectly,
from paying dividends to the Company, or from making any other distribution with
respect to such Subsidiary's capital stock or from paying the Company or any
other Subsidiary, any loans or advances to such Subsidiary from the Company or
such other Subsidiary, or from transferring any such Subsidiary's property or
assets to the Company or to any other Subsidiary; except for the right to
participate in Expod and other than as disclosed in the Prospectus, the Company
does not own, directly or indirectly, any capital stock or other equity
securities of any other corporation or any ownership interest in any
partnership, joint venture or other association;
(d) the Company and its Subsidiaries are in compliance in all
material respects with all applicable laws, rules, regulations, orders, decrees
and judgments, including those relating to transactions with affiliates;
(e) neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor, to the Company's knowledge, has any event occurred
which with notice, lapse of time, or both would constitute a breach of, or
default under), its respective articles of incorporation or charter or by-laws
or code of regulations or in the performance or observance of any obligation,
agreement, covenant or condition contained in any license, indenture, mortgage,
deed of trust, loan or credit agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
or their respective properties is bound, except for such breaches or defaults
which would not have a material adverse effect on the assets, operations,
business or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole, and the execution, delivery and performance of
this Agreement and consummation of the transactions contemplated hereby will not
conflict with, or result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would constitute
a breach of, or default under), (i) any provision of the articles of
incorporation or charter or by-laws or code of regulations of the Company or any
of its Subsidiaries, or (ii) any provision of any license, indenture, mortgage,
deed of trust, loan or credit agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
or their respective properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries, except in the case of this
clause (ii) for such breaches or defaults which would not have a material
adverse effect on the assets, operations, business or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole; or result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or its Subsidiaries;
(f) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity, and except to
the extent that the indemnification and contribution provisions of Section 9
hereof may be limited by federal or state securities laws and public policy
considerations in respect thereof;
(g) no approval, authorization, consent or order of or filing with
any federal, state or local governmental or regulatory commission, board, body,
authority or agency is required in
5
<PAGE>
connection with the execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated hereby or the sale and delivery of
the Shares by the Company as contemplated hereby other than (A) such as have
been obtained, or will have been obtained at the Closing Time or the relevant
Date of Delivery, as the case may be, under the Securities Act, (B) such
approvals as have been obtained in connection with the approval of the quotation
of the Shares on the Nasdaq National Market, and (C) based upon the "blue sky"
survey prepared by counsel to the Underwriters, any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters;
(h) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state or local law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons, required in order to conduct their respective businesses as described
in the Prospectus, except to the extent that any failure to have any such
licenses, authorizations, consents or approvals, to make any such filings or to
obtain any such authorizations, consents or approvals would not, individually or
in the aggregate, have a material adverse effect on the assets, operations,
business or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole; neither the Company nor any of its Subsidiaries
is in violation of, in default under, or has received any written notice
regarding a possible violation, default or revocation of any such license,
authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or
any of its Subsidiaries the effect of which is material and adverse to the
assets, operations, business or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole; and no such license,
authorization, consent or approval contains a materially burdensome restriction
that is not adequately disclosed in the Registration Statement and the
Prospectus;
(i) each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and, to the
Company's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been issued
under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are threatened by
the Commission, and any request on the part of the Commission for additional
information has been complied with;
(j) the Preliminary Prospectus and the Registration Statement comply
and the Prospectus and any further amendments or supplements thereto will, when
they have become effective or are filed with the Commission, as the case may be,
comply in all material respects with the requirements of the Securities Act and
the Securities Act Regulations; the Registration Statement did not, and any
amendment thereto will not, in each case as of the applicable effective date,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
the Preliminary Prospectus does not, and the Prospectus or any amendment or
supplement thereto will not, as of the applicable filing date and at the Closing
Time and on each Date of Delivery (if any), contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that the Company
makes no warranty or representation with respect to any statement contained in
the Registration
6
<PAGE>
Statement or the Prospectus in reliance upon and in conformity with the
information concerning the Underwriters and furnished in writing by or on behalf
of the Underwriters through the Representatives to the Company expressly for use
in the Registration Statement or the Prospectus (that information being limited
to that described in the last sentence of the first paragraph of Section 9(b)
hereof);
(k) the text of the Preliminary Prospectus was and the text of the
Prospectus delivered to the Underwriters for use in connection with this
offering will be substantially identical to the versions of the Preliminary
Prospectus and Prospectus created to be transmitted to the Commission for filing
via the Electronic Data Gathering Analysis and Retrieval System ("EDGAR"),
except to the extent permitted by Regulation ST;
(l) all legal or governmental proceedings, contracts or documents of
a character required by the Securities Act or the Securities Act Regulations to
be filed as exhibits to the Registration Statement or to be summarized or
described in the Prospectus have been so filed, summarized or described as
required;
(m) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the Company's knowledge, threatened against the
Company or any of its Subsidiaries or any of their respective officers and
directors or to which the properties, assets or rights of any such entity are
subject, at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority, arbitral panel or
agency which could result in a judgment, decree, award or order having a
material adverse effect on the assets, operations, business or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole;
(n) the financial statements, including the notes thereto, included
in the Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its Subsidiaries as of the dates indicated
and the consolidated results of operations and changes in financial position and
cash flows of the Company and its Subsidiaries for the periods specified; such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except as indicated in the notes thereto); the amounts in the Prospectus under
the captions "Prospectus Summary -- Summary Consolidated Financial Data" and
"Selected Consolidated Financial Data" fairly present the information shown
therein and have been compiled on a basis consistent with the financial
statements included in the Registration Statement and the Prospectus; the
unaudited pro forma financial information (including the related notes) included
in the Prospectus or any Preliminary Prospectus complies as to form in all
material respects to the applicable accounting requirements of the Securities
Act and the Securities Act Regulations, and management of the Company believes
that the assumptions underlying the pro forma adjustments are reasonable; such
pro forma adjustments have been properly applied to the historical amounts in
the compilation of the information and such information fairly presents with
respect to the Company and the Subsidiaries, the financial position, results of
operations and other information purported to be shown therein at the respective
dates and for the respective periods specified;
(o) Price Waterhouse LLP whose reports on the consolidated financial
statements of the Company and its Subsidiaries are filed with the Commission as
part of the Registration
7
<PAGE>
Statement and Prospectus, are and were during the periods covered by their
reports, independent accountants as required by the Securities Act and the
Securities Act Regulations;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the Closing
Time or Closing Times (if any), and except as may be otherwise stated in the
Registration Statement or Prospectus, there has not been (A) any material
adverse change in the assets, liabilities, capital, operations, business or
condition (financial or otherwise), of the Company and its Subsidiaries taken as
a whole, whether or not arising in the ordinary course of business, (B) any
transaction, which is material to the Company and its Subsidiaries taken as a
whole entered into by the Company or any of its Subsidiaries, (C) any
obligation, contingent or otherwise, directly or indirectly incurred by the
Company or any of its Subsidiaries, which is material to the Company and its
Subsidiaries taken as a whole or (D) any dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock;
(q) the Company is not, and upon the sale of the Shares as herein
contemplated will not be, an investment company required to register under the
Investment Company Act;
(r) the Shares, when issued in accordance with the terms and
conditions of this Agreement, will conform in all material respects to the
description thereof contained in the Registration Statement and the Prospectus;
(s) there are no persons other than the persons set forth on
Schedule II hereto with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act;
(t) the Shares have been duly authorized and, when the Shares have
been issued and duly delivered against payment therefor as contemplated by this
Agreement, the Shares will be validly issued, fully paid and nonassessable, free
and clear of any pledge, lien, encumbrance, security interest, or other claim
relating to the Company, and the issuance and sale of the Shares by the Company
is not subject to preemptive or other similar rights arising by operation of
law, under the articles of incorporation or code of regulations of the Company,
under any agreement to which the Company or any of its Subsidiaries is a party
or otherwise;
(u) the Company has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares (PROVIDED, HOWEVER, that the Company may
purchase shares under the 1998 Employee Payroll Deduction Stock Purchase Plan
and the 401(k) Plan and the Company may, under certain circumstances, be
obligated to repurchase the shares of Common Stock issued to the former
owners of Britco, Inc.);
(v) neither the Company nor any of its affiliates (i) is required to
register as a "broker" or "dealer" in accordance with the provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the rules
and regulations thereunder, or (ii) directly, or indirectly through one or more
intermediaries, controls or has any other association with (within the meaning
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of Section 2710 of the Conduct Rules of the National Association of Securities
Dealers, Inc. (the "NASD")) any member firm of the NASD;
(w) except with respect to the qualification of the Shares under
applicable "blue sky" laws, the Company has not relied upon the Underwriters or
legal counsel for the Underwriters for any legal, tax or accounting advice in
connection with the offering and sale of the Shares.
(x) any certificate which, at the request of the Underwriters, is
signed by any officer of the Company or any Subsidiary and delivered to the
Underwriters or to counsel for the Underwriters pursuant to or in connection
with the Closing of this Agreement shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby;
(y) the form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the articles of incorporation and code of
regulations of the Company and the requirements of the Nasdaq National Market;
(z) the Company and the Subsidiaries have good and marketable title
in fee simple to all real property, if any, and good title to all personal
property owned by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, except such as
are disclosed in the Prospectus or such as do not materially and adversely
interfere with the use made or proposed to be made of such property by the
Company and the Subsidiaries; and, to the Company's knowledge, any real property
and buildings held under lease by the Company or any Subsidiary are held under
valid, existing and enforceable leases, with such exceptions as are disclosed in
the Prospectus or are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or such
Subsidiary;
(aa) the descriptions in the Registration Statement and the Prospectus
of the contracts, leases and other legal documents therein described present
fairly the information required by the Securities Act and the Securities Act
Regulations to be shown, and there are no contracts, leases, or other documents
of a character required by the Securities Act and the Securities Act Regulations
to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which are not described or filed as so
required;
(bb) the Company and each Subsidiary (other than MCSC Cougar
Acquisition Corporation) owns or possesses adequate license or other rights to
use all patents, trademarks, service marks, trade names, copyrights, software
and design licenses, trade secrets, manufacturing processes, other intangible
property rights and know-how (collectively "Intangibles") necessary to entitle
the Company and each Subsidiary (other than MCSC Cougar Acquisition Corporation)
to conduct its business as described in the Prospectus, and neither the Company,
nor any Subsidiary (other than MCSC Cougar Acquisition Corporation), has
received notice of infringement of or conflict with (and knows of no such
infringement of or conflict with) asserted rights of others with respect to any
Intangibles which could materially and adversely affect the business,
properties, assets, results of operations or condition (financial or otherwise)
of the Company or any Subsidiary;
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(cc) the Company and each of its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
sales or other transactions related to the business of the Company are executed
in accordance with management's general or specific authorizations; (ii) sales
or other transactions related to the business of the Company are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences;
(dd) each of the Company and the Subsidiaries has filed on a timely
basis all necessary federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof and have paid all taxes
shown as due thereon; and no tax deficiency has been asserted in writing against
any such entity, nor does any such entity know of any tax deficiency which is
likely to be asserted against any such entity which if determined adversely to
any such entity, could materially adversely affect the business, properties,
assets, results of operations or condition (financial or otherwise) of any such
entity, respectively; all tax liabilities are adequately provided for on the
respective books of such entities;
(ee) each of the Company and its Subsidiaries maintain insurance
(issued by insurers of recognized financial responsibility) of the types and in
the amounts deemed adequate by management for their respective businesses,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company and its Subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against
by the Company, all of which insurance is in full force and effect;
(ff) neither the Company nor any of its Subsidiaries has violated, or
received written notice of any violation with respect to, any applicable
environmental, safety or similar law applicable to the business of the Company
or any of its Subsidiaries, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees, nor any applicable
federal or state wages and hours law, nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations promulgated
thereunder, the violation of any of which could have a material adverse effect
on the business, operations, earnings, properties or condition (financial or
otherwise), of the Company and its Subsidiaries, taken as a whole;
(gg) neither the Company nor any of its Subsidiaries nor any officer
or director purporting to act on behalf of the Company or any of its
Subsidiaries has at any time; (i) made any contributions to any candidate for
political office, or failed to disclose fully any such contributions, in
violation of law, (ii) made any payment to any state, federal or foreign
governmental officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or allowed by applicable law,
or (iii) engaged in any transactions, maintained any bank account or used any
corporate funds except for transactions, bank accounts and funds which have been
and are reflected in the normally maintained books and records of the Company
and its Subsidiaries;
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(hh) except as otherwise disclosed in the Prospectus, there are no
material outstanding loans or advances or material guarantees of indebtedness by
the Company or any of its Subsidiaries to or for the benefit of any of the
officers or directors of the Company or any of its Subsidiaries or any of the
members of the families of any of them;
(ii) neither the Company nor any of its Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any of its
Subsidiaries, has made any payment of funds of the Company or of any Subsidiary
or received or retained any funds in violation of any law, rule or regulation or
of a character required by the Securities Act or Securities Act Regulations or
the Securities Exchange Act of 1934, as amended, or the regulations promulgated
thereunder to be disclosed in the Prospectus;
(jj) all securities issued by the Company, any of its Subsidiaries or
any trusts established by the Company or any Subsidiary, have been issued and
sold in compliance with all applicable federal and state securities laws;
(kk) in connection with this offering, the Company has not offered and
will not offer its Common Stock or any other securities convertible into or
exchangeable or exercisable for Common Stock in a manner in violation of the
Securities Act. The Company has not distributed and will not distribute any
Prospectus or other offering material in connection with the offer and sale of
the Shares;
(ll) the Company has complied and will comply with all the provisions
of Florida Statutes, Section 517.075 (Chapter 92-198, Laws of Florida). Neither
the Company nor any of its Subsidiaries or affiliates does business with the
government of Cuba or, to the Company's knowledge, with any person located in
Cuba; and
(mm) except for compensation to the Underwriters hereunder, the
Company has not incurred any liability for any finder's fees or similar payments
in connection with the transactions herein contemplated.
4. CERTAIN COVENANTS OF THE COMPANY: The Company hereby agrees with each
Underwriter:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as the Representatives may designate and to
maintain such qualifications in effect as long as required for the distribution
of the Shares, provided that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the laws of
any such state (except service of process with respect to the offering and sale
of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters
and file such Prospectus with the Commission pursuant to Rule 424(b) on the day
following the execution and delivery of this Agreement and to furnish promptly
on the day following the execution and delivery of this Agreement to the
Underwriters as many copies of the Prospectus (or of the Prospectus as amended
or supplemented if the Company shall have made any amendments or supplements
thereto
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<PAGE>
after the effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Securities Act
Regulations, which Prospectus and any amendments or supplements thereto
furnished to the Underwriters, the text of which will be substantially identical
to the version created to be transmitted to the Commission for filing via EDGAR,
except to the extent permitted by Regulation ST;
(c) to advise the Representatives promptly and (if requested by any
of the Representatives) to confirm such advice in writing, when the Registration
Statement has become effective and when any post-effective amendment thereto
becomes effective under the Securities Act Regulations;
(d) to advise the Representatives promptly, confirming such advice in
writing, of (i) the receipt of any comments from, or any request by, the
Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or (ii) the
receipt of notice of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, or of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes and, if the Commission or any other government agency or authority
should issue any such order, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; to advise the
Representatives promptly of any proposal to amend or supplement the Registration
Statement or Prospectus and to file no such amendment or supplement to which the
Representatives shall reasonably object in writing;
(e) to furnish to the Representatives for a period of five years from
the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders of
shares of Common Stock, (ii) as soon as practicable after the filing thereof,
copies of all reports filed by the Company with the Commission, the NASD or any
securities exchange and (iii) such other publicly available information as the
Underwriters may reasonably request regarding the Company and its Subsidiaries;
(f) to advise the Representatives promptly of the happening of any
event known to the Company within the time during which a Prospectus relating to
the Shares is required to be delivered under the Securities Act Regulations
which, in the judgment of the Company, would require the making of any change in
the Prospectus then being used so that the Prospectus would not include 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, in the light of
the circumstances under which they were made, not misleading, and, during such
time, to prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be necessary
to reflect any such change and to furnish to the Underwriters a copy of such
proposed amendment or supplement before filing any such amendment or supplement
with the Commission;
(g) to furnish promptly to the Representatives a signed copy (i.e.,
the EDGAR version with facsimile signatures) of the Registration Statement, as
initially filed with the Commission, and of all amendments or supplements
thereto (including all exhibits filed therewith or incorporated
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<PAGE>
by reference therein) and such number of conformed copies of the foregoing as
the Underwriters may reasonably request;
(h) to furnish to the Underwriters, not less than one business day
before filing with the Commission subsequent to the effective date of the
Prospectus and during the period referred to in paragraph (f) above, a copy of
any document proposed to be filed with the Commission pursuant to Section 13,
14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Shares in accordance
with the statements under the caption "Use of Proceeds" in the Prospectus;
(j) to make generally available to its security holders as soon as
practicable, but in any event not later than the end of the fiscal quarter first
occurring after the first anniversary of the effective date of the Registration
Statement an earnings statement complying with the provisions of Section 11(a)
of the Securities Act (in form, at the option of the Company, complying with the
provisions of Rule 158 of the Securities Act Regulations) covering a period of
12 months beginning after the effective date of the Registration Statement;
(k) to use its best efforts to maintain the quotation of the Shares
on the Nasdaq National Market and to file with the Nasdaq National Market all
documents and notices required by the Nasdaq National Market of companies that
have securities that are traded on the Nasdaq National Market;
(l) except with respect to acquisitions of other computer supply and
office automation and projection representation product companies, the 1996
Stock Option Plan, the 1998 Stock Option Plan, the Non-Employee Director Stock
Option Plan, the 1998 Employee Payroll Deduction Stock Purchase Plan, the 401(k)
Plan and the filing on Form S-3 to register shares of Common Stock held by the
former owners of the Company's Subsidiaries and the FBR Fund (as defined in the
Prospectus), to refrain during a period of 180 days from the date of the
Prospectus, without the prior written consent of Friedman, Billings, Ramsey &
Co., Inc., from (i) offering, pledging, selling, contracting to sell, selling
any option or contract to purchase, purchasing any option or contract to sell,
granting any option for the sale of, or otherwise disposing of or transferring,
directly or indirectly, any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, or filing any registration
statement under the Securities Act with respect to any of the foregoing or (ii)
entering into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant outstanding on the date
hereof and referred to in the Prospectus;
(m) except for the 1998 Employee Payroll Deduction Stock Purchase
Plan, the 401(k) Plan, the Company's obligation to repurchase shares of
Common Stock from the former owners of Britco, Inc. and for the purchase by
directors, officers and affiliates of the Company in the offering
contemplated hereby, to not itself and to use its best efforts to cause its
officers, directors and
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affiliates not to, (i) take, directly or indirectly prior to termination of the
30 day period after the Registration Statement becomes effective, any action
designed to stabilize or manipulate the price of any security of the Company, or
which may cause or result in, or which might in the future reasonably be
expected to cause or result in, the stabilization or manipulation of the price
of any security of the Company, to facilitate the sale or resale of any of the
Shares, (ii) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of the Shares or (iii) pay or agree to pay to any person
any compensation for soliciting any order to purchase any other securities of
the Company;
(n) to comply with all of the provisions of any undertakings in the
Registration Statement; and
(o) if at any time during the 30-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in the Representatives'
reasonable opinion the market price of the Common Stock has been or is likely to
be materially affected (regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus) and after written
notice from any of the Representatives advising the Company to the effect set
forth above, to forthwith consult with the Representatives concerning the
substance of, and, if deemed necessary or advisable by the Company, in its
reasonable discretion, to prepare and disseminate a press release or other
public statement, reasonably satisfactory to the Representatives, responding to
or commenting on such rumor, publication or event.
5. PAYMENT OF EXPENSES:
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder or thereunder are consummated or this
Agreement is terminated, including expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the preparation,
issuance and delivery of the certificates for the Shares to the Underwriters,
including any stock or other transfer taxes or duties payable upon the sale of
the Shares to the Underwriters, (iii) the printing of this Agreement and any
dealer agreements and furnishing of copies of each to the Underwriters and to
dealers (including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws that the Company and the
Representatives have mutually agreed are appropriate and the determination of
their eligibility for investment under state law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters which shall not exceed $5,000) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) filing for review of the public offering of the Shares by
the NASD, (vi) the fees and expenses of any transfer agent or registrar for the
Shares and miscellaneous expenses referred to in the Registration Statement,
(vii) the fees and expenses incurred in connection with the inclusion of the
Shares in the Nasdaq National Market, (viii) making road show presentations with
respect to the offering of the Shares, (ix) preparing and distributing bound
volumes of transaction documents for the Representatives and their legal counsel
and (x) the performance of the Company's other
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<PAGE>
obligations hereunder. Upon the timely request of any Representative, the
Company will provide funds in advance for filing fees.
(b) The Company agrees to reimburse the Representatives upon demand
for their reasonable and documented out-of-pocket expenses in connection with
the performance of its activities under this Agreement, including, but not
limited to, costs such as printing, facsimile, courier service, direct computer
expenses, accommodations, travel and the fees and expenses of the Underwriters'
outside legal counsel and any other advisors, accountants, appraisers, etc.;
PROVIDED, HOWEVER, that the aggregate amount of out-of-pocket expenses of the
Representatives that the Company shall be obligated to reimburse pursuant to
this clause (b) shall be equal to the sum of (i) 100% of the out-of-pocket
expenses in excess of $75,000 up to a maximum of $75,000, (ii) 100% of the
out-of-pocket expenses in excess of $187,500 up to a maximum of $37,500 and
(iii) 50% of the out-of-pocket expenses in excess of $225,000; PROVIDED,
HOWEVER, that the Representatives shall not expend more than $225,000 without
the prior written consent of the Company.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS: The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties on the part of the Company in all material respects on the date
hereof and at the Closing Time and on each Date of Delivery, the performance by
the Company of its obligations hereunder in all material respects and to the
following further conditions:
(a) The Company shall furnish to the Underwriters at the Closing Time
and on each Date of Delivery an opinion of Elias, Matz, Tiernan & Herrick
L.L.P., counsel for the Company, addressed to the Underwriters and dated the
Closing Time and each Date of Delivery and in form satisfactory to Jenkens &
Gilchrist, a Professional Corporation, counsel for the Underwriters, stating
that:
(i) the Company has authorized shares of capital stock as set
forth in the Prospectus under the caption "Capitalization" as of the dates
indicated; the outstanding shares of capital stock of the Company and its
Subsidiaries have been duly and validly authorized and issued and are fully
paid and non-assessable, and all of the outstanding shares of capital stock
of the Subsidiaries are directly or indirectly owned of record and
beneficially by the Company; except as disclosed in the Prospectus, there
are no outstanding (i) securities or obligations of the Company or any of
its Subsidiaries convertible into or exchangeable for any capital stock of
the Company or any such Subsidiary, (ii) warrants, rights or options to
subscribe for or purchase from the Company or any such Subsidiary any such
capital stock or any such convertible or exchangeable securities or
obligations, or (iii) except for shares issuable to the former owners of
TBS Printware Corporation, Data Associates, Inc., Computer Showcase, Inc.
and Electronic Image Systems, Inc. pursuant to the respective Agreements
and Plans of Reorganization, obligations of the Company or any such
Subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligation, or any such warrants, rights or
options;
(ii) the Company and the Company's Subsidiaries (all of which
are named in an exhibit to the Registration Statement) each has been duly
incorporated (except as to Diversified Data Products (U.K.) Limited and to
Compass Export Marketing (Overseas),
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Limited, as to which no opinion shall be expressed) and is validly existing
as a corporation under the laws of its respective jurisdiction of
incorporation with the corporate power and authority to own its respective
properties and to conduct its respective business as described in the
Registration Statement and Prospectus and, in the case of the Company, to
execute and deliver this Agreement and to consummate the transactions
described in this Agreement;
(iii) except as disclosed in the Prospectus, no Subsidiary is
prohibited or restricted, directly or indirectly, from paying dividends to
the Company, or from making any other distribution with respect to such
Subsidiary's capital stock or from paying the Company or any other
Subsidiary, any loans or advances to such Subsidiary from the Company or
such other Subsidiary, or from transferring any such Subsidiary's property
or assets to the Company or to any other Subsidiary. Other than as
disclosed in the Prospectus, and except for the right to participate in
Expod, the Company does not own, directly or indirectly, any capital stock
or other equity securities of any other corporation or any ownership
interest in any partnership, joint venture or other association;
(iv) to such counsel's knowledge, neither the Company nor any
of its Subsidiaries is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would constitute a
breach of, or default under), any license, indenture, mortgage, deed of
trust, loan or credit agreement or any other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of
them or their respective properties may be bound or affected as set forth
in Exhibits 10.1 through 10.28 of the Registration Statement or under any
law, regulation or rule or any decree, judgment or order applicable to the
Company or any of its Subsidiaries, except such breaches or defaults which
would not have a material adverse effect on the assets, operations,
business or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole;
(v) the execution, delivery and performance of this Agreement
and the consummation by the Company of the transactions contemplated under
this Agreement do not and will not conflict with, or result in any breach
of, or constitute a default under (nor constitute any event which with
notice, lapse of time, or both would constitute a breach of or default
under), (i) any provisions of the articles of incorporation, charter or
by-laws or code of regulations of the Company or any Subsidiary, (ii) any
provision of any license, indenture, mortgage, deed of trust, loan or
credit agreement or other agreement or instrument to which the Company or
any Subsidiary is a party or by which any of them or their respective
properties may be bound or affected as set forth in Exhibits 10.1 through
10.28 of the Registration Statement, or (iii) any law or regulation or any
decree, judgment or order applicable to the Company or any Subsidiary,
except in the case of clause (ii) for such conflicts, breaches or defaults
which individually or in the aggregate would not have a material adverse
effect on the assets, operations, business or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general principles of
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equity, and except that enforceability of the indemnification and
contribution provisions set forth in Section 9 of this Agreement may be
limited by the federal or state securities laws of the United States or
public policy underlying such laws;
(vii) no approval, authorization, consent or order of or filing
with any federal or state governmental or regulatory commission, board,
body, authority or agency is required in connection with the execution,
delivery and performance of this Agreement, the consummation of the
transactions contemplated hereby or the sale and delivery of the Shares by
the Company as contemplated hereby other than such as have been obtained or
made under the Securities Act and except that such counsel need express no
opinion as to any necessary qualification under the state securities or
blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters or any approval of the underwriting terms and
arrangements by the National Association of Securities Dealers, Inc.;
(viii) to such counsel's knowledge neither the Company nor any
Subsidiary is in violation of, in default under, or has received any
written notice regarding a possible violation, default or revocation of any
such license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or decree, order or judgment applicable to
the Company or any of its Subsidiaries, the effect of which is material and
adverse to the assets, operations, business or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole and no such
license, authorization, consent or approval contains a materially
burdensome restriction that is not adequately disclosed in the Registration
Statement and the Prospectus;
(ix) the Company is not an investment company required to be
registered under the Investment Company Act;
(x) the Shares have been duly authorized and, when the Shares
have been issued and duly delivered against payment therefor as
contemplated by this Agreement, the Shares will be validly issued, fully
paid and nonassessable, free and clear of any pledge, lien, encumbrance,
security interest, or other claim related to the Company;
(xi) the issuance and sale of the Shares by the Company is not
subject to preemptive or other similar rights arising by operation of law,
under the articles of incorporation or code of regulations of the Company,
under any agreement known to such counsel to which the Company or any of
its Subsidiaries is a party or, to such counsel's knowledge, otherwise;
(xii) to counsel's knowledge, there are no persons other than
the persons set forth on Schedule II hereto with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act;
(xiii) the legal attributes of the Shares, when issued in
accordance with the terms and conditions of this Agreement, will conform in
all material respects to the descriptions thereof contained in the
Registration Statement and Prospectus;
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(xiv) the form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the articles of
incorporation and code of regulations of the Company and the requirements
of the Nasdaq National Market;
(xv) the Registration Statement has become effective under the
Securities Act and, to counsel's knowledge, no stop order from the
Commission suspending the effectiveness of the Registration Statement has
been issued and, to such counsel's knowledge, no proceedings with respect
thereto have been commenced or threatened;
(xvi) as of the effective date of the Registration Statement,
the Registration Statement and the Prospectus (except as to the financial
statements and other financial and statistical data and schedules contained
therein and the information from the Underwriters in the Prospectus and
Preliminary Prospectus referred to in Section 9 hereof, as to which such
counsel need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the Securities Act
Regulations;
(xvii) the statements under the captions "Risk Factors,"
"Capitalization," "Management's Discussion and Analysis and Results of
Operations -- Credit Facility," "Business -- Acquisitions," "Management,"
"Certain Transactions," "Description of Capital Stock," "Restrictions on
Acquisition of the Company," and "Shares Eligible for Future Sale," in the
Prospectus, and Item 14 of Part II of the Registration Statement, insofar
as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, constitute accurate summaries thereof in
all material respects;
(xviii) to such counsel's knowledge, there are no actions,
suits or proceedings, inquiries, or investigations pending or, threatened
against the Company or any of its Subsidiaries or any of their respective
officers and directors or to which the properties, assets or rights of any
such entity are subject, at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body,
authority, arbitral panel or agency which are required by the Securities
Act or the Securities Act Regulations to be described in the Prospectus but
are not so described; and
(xix) to such counsel's knowledge, there are no contracts or
documents of a character which are required by the Securities Act or the
Securities Act Regulations to be filed as exhibits to the Registration
Statement or to be described or summarized in the Prospectus which have not
been so filed, summarized or described.
18
<PAGE>
In rendering such opinion, such counsel may rely, as to matters of fact, on
certificates of officers of the Company and of governmental officials, in which
case the opinion shall state that they are so doing and copies of such
certificates shall be attached to the opinion. Such counsel's opinion shall be
limited to matters governed by federal securities laws and by the General
Corporation Law of the State of Ohio. The opinion shall be interpreted
according to the Legal Opinion Accord of the Section of Business Law of the
American Bar Association (1991) (the "Accord"). Whenever any opinion expressed
with respect to any matter is qualified by the phrase "to such counsel's actual
knowledge," "to the knowledge of such counsel" or "known by such counsel" or any
similar phrase, such language shall be interpreted pursuant to the Accord. For
purposes of such opinions, no proceedings shall be deemed to be pending, no
order or stop order shall be deemed to be issued, and no action shall be deemed
to be instituted unless, in each case, a director or executive officer of the
Company shall have received a copy of such proceedings, order, stop order or
action. For purposes of such opinion, no proceedings shall be deemed to be
threatened unless the potential litigant or government authority has manifested
in writing to the directors or management of the Company or to counsel thereof a
present intention to initiate such litigation or proceedings. In addition, such
opinion may be limited to present statutes, regulations and judicial
interpretations and to facts as they presently exist as of the date of such
opinions; in rendering such opinions, such counsel need assume no obligation to
revise or supplement it should the present laws be changed by legislative or
regulatory action, judicial action or otherwise. Such counsel may assume that
any agreement is the valid and binding obligation of any parties to such
agreement other than the Company or its Subsidiaries.
In addition, such counsel shall confirm in a separate letter that in
connection with the preparation of the Registration Statement, they have
participated in conferences with officers, employees and other representatives
of the Company, independent accountants of the Company, the Underwriters and
counsel for the Underwriters, at which the contents of the Registration
Statement and Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
Prospectus, and has not made any independent check or verification thereof, on
the basis of the foregoing (relying as to materiality to a large extent upon the
statements of officers, employees and other representatives of the Company),
they have no reason to believe that the Registration Statement, the Preliminary
Prospectus or the Prospectus, as of their respective effective or issue dates
and as of the date of such counsel's opinion, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that, in each case, such counsel need express no view with
respect to the financial statements and other financial and statistical data and
schedules included in the Registration Statement, Preliminary Prospectus or
Prospectus or the information from the Underwriters in the Prospectus or the
Preliminary Prospectus referred to in Section 9 hereof).
19
<PAGE>
(b) The Representatives shall have received from Price Waterhouse
LLP, letters dated, respectively, as of the date of this Agreement, the Closing
Time and each Date of Delivery, as the case may be, addressed to the
Representatives as representatives of the Underwriters and in form and substance
satisfactory to the Representatives, acknowledging that said letter will comply
with generally accepted auditing standards.
(c) The Underwriters shall have received at the Closing Time and on
each Date of Delivery the favorable opinion of Jenkens & Gilchrist, a
Professional Corporation, dated the Closing Time or such Date of Delivery,
addressed to the Representatives and in form and substance satisfactory to the
Representatives.
(d) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Representatives shall have
objected in writing.
(e) Prior to the Closing Time and each Date of Delivery (i) no stop
order suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any Preliminary Prospectus or Prospectus has
been issued by the Commission, and no suspension of the qualification of the
Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes, has occurred; and (ii)
the Registration Statement and the Prospectus shall not contain an untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(f) Between the time of execution of this Agreement and the Closing
Time or the relevant Date of Delivery (i) no material and unfavorable change in
the assets, operations, business, or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole shall occur or become known
(whether or not arising in the ordinary course of business), and (ii) no
transaction which is material and unfavorable to the Company shall have been
entered into by the Company or any of its Subsidiaries.
(g) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(h) The Representatives shall have received letters from each
executive officer, director and the persons listed on Schedule III hereto (other
than persons who are exempted from this requirement at the sole discretion of
the Representatives based on the small number of shares of Common Stock that
they own or may acquire), in form and substance satisfactory to the
Representatives, confirming that for a period of 180 days after the Closing
Time, such persons will not (to the extent that they have not done so on or
prior to the Closing Time) directly or indirectly (i) offer, pledge to secure
any obligation due on or within 180 days after the Closing Time, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option for the sale of, or otherwise dispose of or
transfer (other than a disposition or transfer pursuant to which the acquiror or
transferee is subject to the restrictions on disposition and transfer set forth
in this Section 6(i) to the same extent as such stockholder delivering a letter
hereunder), directly or indirectly, any share of Common Stock (other than by
participating as selling stockholders in a registered offering of Common Stock
offered by the Company with the consent of the
20
<PAGE>
Representatives) or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or any other agreement
or any transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Common Stock, whether any such swap
or transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, without
the prior written consent of Friedman, Billings, Ramsey & Co., Inc., which
consent may be withheld at the sole discretion of Friedman, Billings, Ramsey &
Co., Inc.
(i) The Company will, at the Closing Time and on each Date of
Delivery, deliver to the Underwriters a certificate of its principal executive
officer, Michael E. Peppel, to the effect that, to such officer's knowledge, the
representations and warranties of the Company set forth in this Agreement and
the conditions set forth in paragraphs (e), (f) and (k) of this Section 6 have
been met and are true and correct as of such date.
(j) The Company shall have furnished to the Underwriters such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement and the Prospectus, the representations,
warranties and statements of the Company contained herein, and the performance
by the Company of its covenants contained herein, and the fulfillment of any
conditions contained herein, as of the Closing Time or any Date of Delivery as
the Underwriters may reasonably and timely request.
(k) The Company shall perform such of its obligations under this
Agreement as are to be performed by the terms hereof at or before the Closing
Time or the relevant Date of Delivery.
7. TERMINATION: The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of the
Representatives, at any time prior to the Closing Time or any Date of Delivery,
(i) if any of the conditions specified in Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, or (ii) if
there has been since the respective dates as of which information is given in
the Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
management, properties, assets, results of operations or condition (financial or
otherwise) of the Company, whether or not arising in the ordinary course of
business, or (iii) if there has occurred outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic,
political or other conditions the effect of which on the financial markets of
the United States is such as to make it, in the judgment of the Representatives,
impracticable to market the Shares or enforce contracts for the sale of the
Shares, or (iv) if trading in any securities of the Company has been suspended
by the Commission or by Nasdaq or if trading generally on the New York Stock
Exchange or in the Nasdaq National Market has been suspended (including
automatic halt in trading pursuant to market-decline triggers other than those
in which solely program trading is temporarily halted), or limitations on prices
for trading (other than limitations on hours or numbers of days of trading) have
been fixed, or maximum ranges for prices for securities have been required, by
such exchange or the NASD or Nasdaq or by order of the Commission or any other
governmental authority, or (v) any federal or state statute, regulation, rule or
order of any court or other governmental authority has been enacted, published,
decreed or otherwise promulgated which in the reasonable opinion of the
Representatives materially adversely affects or will materially adversely
21
<PAGE>
affect the business or operations of the Company, or (vi) any action has been
taken by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in the reasonable opinion of the
Representatives has a material adverse effect on the securities markets in the
United States.
If the Representatives elect to terminate this Agreement as provided in
this Section 7, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply in all material respects with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5 and 9 hereof) and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS: If any Underwriter shall
default at the Closing Time or on a Date of Delivery in its obligation to take
up and pay for the Shares to be purchased by it under this Agreement on such
date the Representatives shall have the right, within 36 hours after such
default, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Shares which such Underwriter shall have agreed but failed to take up and
pay for (the "Defaulted Shares"). Absent the completion of such arrangements
within such 36 hour period, (i) if the total number of Defaulted Shares does not
exceed 10% of the total number of Shares to be purchased on such date, each
non-defaulting Underwriter shall take up and pay for (in addition to the number
of Shares which it is otherwise obligated to purchase on such date pursuant to
this Agreement) the portion of the total number of Shares agreed to be purchased
by the defaulting Underwriter on such date in the proportion that its
underwriting obligations hereunder bears to the underwriting obligations of all
non-defaulting Underwriters; and (ii) if the total number of Defaulted Shares
exceeds 10% of such total, the Representatives may terminate this Agreement by
notice to the Company, without liability to any non-defaulting Underwriter.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Initial Shares hereunder on such date unless all of the Initial
Shares to be purchased on such date are purchased on such date by the
Underwriters (or by substituted Underwriters selected by the Representatives
with the approval of the Company or selected by the Company with the approval of
the Representatives).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the Closing Time or
the relevant Date of Delivery for a period not exceeding five business days in
order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
22
<PAGE>
The term Underwriter as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 8 with the like effect as if such
substituted Underwriter had originally been named in this Agreement.
9. INDEMNITY AND CONTRIBUTION BY THE COMPANY AND THE UNDERWRITERS:
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter and any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, expense, liability, damage or claim (including the reasonable
cost of investigation) which, jointly or severally, any such Underwriter or
controlling person may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, expense, liability, damage or claim arises out
of or is based upon (i) any breach of any representation, warranty or covenant
of the Company contained herein or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this Section
9 being deemed to include any Preliminary Prospectus, the Prospectus and the
Prospectus as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or Prospectus or necessary to
make the statements made therein, in the light of the circumstances under which
they were made, not misleading, except insofar as any such loss, expense,
liability, damage or claim arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission of a material fact
contained in and in conformity with information furnished in writing by the
Underwriters through the Representatives to the Company expressly for use in
such Registration Statement or such Prospectus, PROVIDED, HOWEVER, that the
indemnity agreement contained in this subsection (a) with respect to the
Preliminary Prospectus or the Prospectus shall not inure to the benefit of an
Underwriter (or to the benefit of any person controlling such Underwriter) with
respect to any person asserting any such loss, expense, liability, damage or
claim which is the subject thereof if the Prospectus or any supplement thereto
prepared with the consent of the Representatives and furnished to the
Underwriters prior to the Closing Time corrected any such alleged untrue
statement or omission and if such Underwriter failed to send or give a copy of
the Prospectus or supplement thereto to such person at or prior to the written
confirmation of the sale of Shares to such person.
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
preceding paragraph, such Underwriter shall promptly notify the Company in
writing of the institution of such action and the Company shall assume the
defense of such action, including the employment of counsel and payment of
expenses; PROVIDED, HOWEVER, that any failure or delay to so notify the Company
will not relieve the Company of any obligation hereunder, except to the extent
that its ability to defend is actually impaired by such failure or delay. Such
Underwriter or controlling person shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such Underwriter or such controlling person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such action or the Company shall not have
employed counsel to have charge of the defense of such action within a
reasonable time or such indemnified party or parties shall have reasonably
concluded (based on the advice of counsel) that there may be defenses available
to it or them which are different from or
23
<PAGE>
additional to those available to the Company and which counsel to the
Underwriter believes may present a conflict for counsel representing the Company
and the Underwriter (in which case the Company shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate firm of attorneys
for the Underwriters or controlling persons in any one action or series of
related actions in the same jurisdiction representing the indemnified parties
who are parties to such action). Anything in this paragraph to the contrary
notwithstanding, the Company shall not be liable for any settlement of any such
claim or action effected without the its written consent.
(b) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Company, its directors, officers and any person who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which, jointly
or severally, the Company or any such person may incur under the Securities Act,
the Exchange Act or otherwise, insofar as such loss, expense, liability, damage
or claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
furnished in writing by such Underwriter through the Representatives to the
Company expressly for use in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company) or
in a Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated either in such Registration Statement or Prospectus or necessary to
make such information, in the light of the circumstances under which made, not
misleading. The statements set forth in the last paragraph on the cover page
and under the caption "Underwriting" in the Preliminary Prospectus and the
Prospectus constitute the only information furnished by or on behalf of any
Underwriter through the Representatives to the Company for purposes of Section
3(j) and this Section 9.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify the
Representatives in writing of the institution of such action and the
Representatives, on behalf of the Underwriters, shall assume the defense of such
action, including the employment of counsel and payment of expenses, PROVIDED,
HOWEVER, that any failure or delay to so notify the Representatives will not
relieve the Underwriters of any obligations hereunder, except to the extent that
their ability to defend is actually impaired by such failure or delay. The
Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by the Representatives in connection with the defense of
such action or the Representatives shall not have employed counsel to have
charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
written opinion of counsel) that there may be defenses available to it or them
which are different from or additional to those available to the Underwriters
(in which case the Representatives shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by such Underwriter and paid
as incurred (it being understood, however, that the
24
<PAGE>
Underwriters shall not be liable for the expenses of more than one separate firm
of attorneys in any one action or series of related actions in the same
jurisdiction representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of the Representatives.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, expenses, liabilities, damages or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, expenses,
liabilities, damages or claims (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if (but
only 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 of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, expenses,
liabilities, damages or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company bear to the
underwriting discounts and commissions received by the Underwriters. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any claim or action.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in subsection (c)(i) and, if applicable
(ii), above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Shares purchased by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
10. SURVIVAL: The indemnity and contribution agreements contained in
Section 9 and the covenants, warranties and representations of the Company
contained in Sections 3, 4 and 5 of this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, or any person who controls any Underwriter within the meaning of
Section 15
25
<PAGE>
of the Securities Act or Section 20 of the Exchange Act, or by or on behalf
of the Company, its directors and officers or any person who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and shall survive any termination of this Agreement or
the sale and delivery of the Shares for three years after the Closing Time.
The Company and each Underwriter agree promptly to notify the others of the
commencement of any litigation or proceeding against it and, in the case of
the Company, against any of the Company's officers and directors, in
connection with the sale and delivery of the Shares, or in connection with
the Registration Statement or Prospectus.
11. NOTICES: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered to Friedman,
Billings, Ramsey & Co., Inc., 1001 19th Street North, Arlington, Virginia 22209,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered to the Company at the offices of the Company at 4750
Hempstead Station Drive, Dayton, Ohio 45429.
12. GOVERNING LAW; HEADINGS: THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
13. PARTIES IN INTEREST: The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company and the controlling
persons, directors and officers referred to in Sections 9 and 10 hereof, and
their respective successors, assigns, heirs, executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
14. COUNTERPARTS: This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
15. ENTIRE AGREEMENT; AMENDMENT. This Agreement (including the exhibits
and schedules hereto and documents delivered pursuant hereto) is intended by the
parties to and does constitute the entire agreement of the parties with respect
to the transactions contemplated by this Agreement. This Agreement supersedes
and terminates any and all prior understandings, written or oral, between the
parties, including the letter by and between the Company and Friedman, Billings,
Ramsey & Co., Inc., dated as of May 1, 1998, except for sections 2, 3, [5]
and 6 thereof. If there is any question of interpretation or if there are or
appear to be inconsistencies between this Agreement and any Schedule or
Exhibit hereto, the terms of this Agreement shall govern. This Agreement may
not be amended, modified, waived, discharged or terminated orally, but only
by an instrument in writing signed by an authorized executive officer of the
Company and Friedman, Billings, Ramsey & Co., Inc. No waiver of the breach
of any provision or term of this Agreement shall be deemed or construed to be
a waiver of other or subsequent breaches.
26
<PAGE>
If the foregoing correctly sets forth the understanding among the Company
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this Agreement shall constitute a binding agreement among the
Company and the Underwriters.
Very truly yours,
MIAMI COMPUTER SUPPLY CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, RAMSEY &
CO., INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WILLIAM BLAIR & COMPANY, L.L.C.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MORGAN KEEGAN & COMPANY, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
For themselves and as Representatives
of the other Underwriters named on
Schedule I hereto.
27
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Number of Initial
Underwriter Shares to be Purchased
------------ ----------------------
<S> <C>
Friedman, Billings, Ramsey & Co., Inc.
William Blair & Company, L.L.C.
Morgan Keegan & Company, Inc.
-----------------------
Total................................. 2,100,000
</TABLE>
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Number of Shares Subject
Registration Rights Holder* to Registration Rights Date
--------------------------- ------------------------- ----
<S> <C> <C>
H. Clark Gilson, as 440,851 October 12, 1998
Trustee of the Gilson Trust
Ruy J. Pereira as 440,851 October 12, 1998
Trustee of the Pereira Trust
Larry R. Goodman as 440,851 October 12, 1998
Trustee of the Goodman Trust
Charles L. and Gretchen K. 183,333 September 2, 1998
Ferguson (and "Piggyback")
Jerrold H. and Deborah Smith 120,179 "Piggyback"
</TABLE>
- --------
* Does not include shares registered under Form S-3 or shares held by the FBR
Fund.
<PAGE>
SCHEDULE III
Persons Subject to Lock-Up Letters
----------------------------------
Anthony W. Liberati
Michael E. Peppel
Robert G. Hecht
Harry F. Radcliffe
Thomas C. Winstel
Roger E. Turvy
John C. Huffman, III
Mary A. Stewart
Ira H. Stanley
FBR Private Equity Fund, L.P.
Pittsburgh Investment Group LLC
<PAGE>
EXHIBIT 5.0
<PAGE>
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
Telephone (202) 347-0300
June 29, 1998
Board of Directors
Miami Computer Supply Corporation
4750 Hempstead Station Drive
Dayton, Ohio 45420
Gentlemen:
We have acted as special counsel to Miami Computer Supply Corporation
(the "Company") in connection with the preparation and filing by the Company
with the Securities and Exchange Commission ("SEC") of a Registration
Statement on Form S-1 ("Form S-1") under the Securities Act of 1933, as
amended (the "Act"), relating to the issuance of up to an aggregate of
2,415,000 shares of common stock, no par value per share (the "Common
Stock"), of the Company, of which (a) 2,100,000 shares will be sold in a
public offering by Friedman, Billings, Ramsey & Co., Inc., Arlington,
Virginia, William Blair & Company, L.L.C., Chicago, Illinois, and Morgan
Keegan & Company, Inc., Memphis, Tennessee, the underwriters (the
"Underwriters") named in the underwriting agreement dated June 29, 1998
(the "Underwriting Agreement"), on a firm commitment basis, and (b) 315,000
shares will be purchased by the Underwriters from the Company solely to cover
over-allotments, if any. Capitalized terms defined in the Form S-1 and not
otherwise defined herein are used herein with the meanings as so defined.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Form S-1 and such corporate
records, agreements, documents and other instruments, including the
Underwriting Agreement, and such certificates or comparable documents of
public officials and of officers and representatives of the Company, and have
made such inquiries of such officers and representatives, as we have deemed
relevant or necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed without independent verification
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. As to
all questions of fact material to this opinion, we have relied upon
certificates or comparable documents of officers of the Company, and we have
also relied upon the representations and warranties of the Company contained
in the Underwriting Agreement and have relied upon the accuracy and
completeness thereof without independent verification. Certain partners of
this firm are members of an investment partnership which owns 20.4% of
Pittsburgh Investment Group LLC ("LLC").
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Miami Computer Supply Corporation
June 29, 1998
Page 2
LLC owns, as of the date of this letter 4.70% of the issued and outstanding
Common Stock of the Company. Members of this firm also individually own
approximately 240,540 shares of Common Stock of the Company and currently
intend to purchase approximately 4,500 shares of Common Stock in the Offering.
Based on the foregoing, and subject to the qualifications stated herein,
as of the date hereof, we are of the opinion that:
i. The 2,100,000 shares of Common Stock of the Company to be issued and
sold by the Company have been duly authorized and, when issued and sold as
contemplated in the Form S-1 and the Underwriting Agreement upon receipt of
the required consideration therefor, will be validly issued, fully paid and
non-assessable.
ii. The 315,000 shares of Common Stock of the Company to be sold by the
Company upon exercise of the Underwriters' over-allotment option have been
duly authorized and, when issued and sold as contemplated in the Form S-1 and
the Underwriting Agreement upon receipt of the required consideration
therefor, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Form S-1 and to the reference to our firm under the caption "Legal Matters"
in the Prospectus included therein.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Jeffrey A. Koeppel
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Jeffrey A. Koeppel, a Partner
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EXHIBIT 23.2
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-1 of our report dated February 23, 1998,
except as to Note 2 - earnings per share for which the date is April 24,
1998, relating to the consolidated financial statements of Miami Computer
Supply Corporation, which appears in such Prospectus and of our reports dated
November 14, 1997, November 4, 1997 and October 22, 1997 relating to the
financial statements of Minnesota Western/Creative Office Products, Inc., TBS
Printware Corporation and Britco, Inc., respectively, which appear in such
Prospectus. We also consent to the references to us under the heading
"Independent Accountants", "Summary Consolidated Financial Data" and
"Selected Consolidated Financial Data" in such Prospectus. However, it
should be noted that Price Waterhouse LLP has not prepared or certified such
"Summary Consolidated Financial Data" or "Selected Consolidated Financial
Data."
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Cincinnati, Ohio
June 29, 1998
