<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-1*
AMENDMENT NO. 2
Tender Offer Statement Pursuant to Section 14(d)(1) of the
Securities Exchange Act of 1934
UNIFORCE SERVICES, INC.
(Name of Subject Company [Issuer])
COMFORCE CORPORATION
(Bidder)
Common Stock, $0.01 par value
(Title of class of securities)
904724101
(CUSIP number of class of securities)
Christopher P. Franco
Chief Executive Officer
COMFORCE Corporation
2001 Marcus Avenue
Lake Success, New York 11092
Telephone: (516) 328-7300
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of bidder)
with a copy to:
David G. Edwards, Esq.
Doepken Keevican & Weiss, Professional Corporation
58th Floor, USX Tower
600 Grant Street
Pittsburgh, PA 15219
Telephone: (412) 355-2743
Calculation of Filing Fee
Transaction Valuation(1) Amount of filing fee(2)
$98,256,245 $19,651.25
___________
(1) For purposes of calculating the filing fee only. This calculation assumes
the purchase of 3,038,543 shares of Common Stock, $.01 par value, of Uniforce
Services, Inc. for $28 per share in cash and 0.5217 shares of Common Stock,
par value $0.01 per share, of COMFORCE Corporation ("COMFORCE Common Stock")
at the average per share price of $8.3125 representing the average of the
high and low prices of COMFORCE Common Stock listed on the American Stock
Exchange on October 23, 1997.
(2) The amount of the filing fee equals 1/50th of one percent of the
aggregate value of cash and securities offered by COMFORCE Corporation for
such number of shares.
* This Statement is also being filed to satisfy the reporting requirements
of Section 13(d) of the Securities Exchange Act of 1934, as amended.
[x] Check box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $19,652 Filing Party: COMFORCE Corporation
Form or Registration No.: Schedule 14D-1 Date Filed: October 27, 1997
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1) Names of Reporting Persons S.S. or I.R.S. Identification No. of above
Persons
COMFORCE Corporation 36-2262248
2) Check the Appropriate Box if a Member of a Group [ ] (a) [ ] (b)
3) SEC Use Only ______________________________________________________
4) Source of Funds
WC, BK, OO
5) [ ] Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(e) or 2(f)
6) Citizenship or Place of Organization
Delaware
7) Aggregate Amount Beneficially Owned by Each Reporting Person
None
8) [ ] Check Box if the Aggregate Amount in Row 7 Excludes Certain Shares
9) Percent of Class Represented by Amount in Row 7
-0-%
10) Type of Reporting Person
CO
[2]
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The purpose of this Amendment No. 2 to the Schedule 14D-1 of COMFORCE
corporation with respect to its offer to purchase any and all of the
outstanding shares of common stock of Uniforce Service, Inc. is being filed
merely to include exhibits omitted from the Amendment No. 1 to Schedule
14D-1 filed November 19, 1997.
[3]
<PAGE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Prospectus/Proxy Statement, dated October 27, 1997.*
[4]
<PAGE>
(a)(2) Letter of Transmittal.*
(a)(3) Notice of Guaranteed Delivery. *
(a)(4) Letter from the Information Agent to Brokers, Dealers, Commercial
Banks, Trust Companies and other Nominees.*
(a)(5) Letter to clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and other Nominees.*
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.*
(a)(7) Text of Press Release, dated October 27, 1997, issued by the Offeror.*
(a)(8) Chairmen's Letter, dated October 27, 1997.*
(a)(9) Prospectus Supplement, dated November 19, 1997.*
(a)(10) Text of Press Release, dated November 19, 1997.*
(a)(11) Copy of Current Report on Form 10-Q of Uniforce Services, Inc.*
(b)(1) Form of Purchase Agreement, dated November 19, 1997 between COMFORCE
Operating, Inc. and Natwest Capital Markets Limited regarding 12%
Senior Notes due 2007.
(b)(2) Form of Purchase Agreement, dated November 19, 1997 between COMFORCE
Corporation and NatWest Capital Markets Limited regarding 15%
Senior Secured PIK Debentures due 2009.
(b)(3) Commitment Letter, dated November 18, 1997, from Heller Financial,
Inc.*
(c)(1) Agreement and Plan of Merger, dated as of August 13, 1997, by and
between Offeror, COMFORCE Columbus, Inc., a wholly-owned subsidiary
of the Offeror and the Company.*
(c)(2) Shareholder's Agreement, dated as of August 13, 1997, by and among
COMFORCE Corporation, COMFORCE Columbus, Inc., John Fanning and
Fanning Asset Partners, L.P.*
(c)(3) Registration Rights Agreement, dated as of August 13, 1997, by and
among COMFORCE Corporation, COMFORCE Columbus, Inc., John Fanning
and Fanning Asset Partners, L.P.*
(d) Opinion of Doepken Keevican & Weiss Professional Corporation.*
(e)(1) Prospectus/Proxy Statement filed as Exhibit (a)(i) above.*
(e)(2) Prospectus Supplement filed as Exhibit (a)(9) above.
(f) Not applicable.
* Previously filed
[5]
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and
correct.
Dated: November 20, 1997
COMFORCE CORPORATION
By: /s/ Christopher P. Franco
__________________________
Christopher P. Franco
Chief Executive Officer
[6]
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
(a)(1) Prospectus/Proxy Statement, dated October 27, 1997 (included as an
exhibit to Schedule 14D-1 filed by COMFORCE Corporation on October
27, 1997 and incorporated herein by reference).
(a)(2) Letter of Transmittal (included as an exhibit to Schedule 14D-1
filed by COMFORCE Corporation on October 27, 1997 and incorporated
herein by reference).
(a)(3) Notice of Guaranteed Delivery (included as an exhibit to Schedule
14D-1 filed by COMFORCE Corporation on October 27, 1997 and
incorporated herein by reference).
(a)(4) Letter from the Information Agent to Brokers, Dealers, Commercial
Banks, Trust Companies and other Nominees (included as an exhibit
to Schedule 14D-1 filed by COMFORCE Corporation on October 27, 1997
and incorporated herein by reference).
(a)(5) Letter to clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and other Nominees (included as an exhibit to
Schedule 14D-1 filed by COMFORCE Corporation on October 27, 1997
and incorporated herein by reference).
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 (included as an exhibit to Schedule 14D-1 filed
by COMFORCE Corporation on October 27, 1997 and incorporated herein
by reference).
(a)(7) Text of Press Release, dated October 27, 1997, issued by the
Offeror (included as an exhibit to Schedule 14D-1 filed by COMFORCE
Corporation on October 27, 1997 and incorporated herein by
reference).
(a)(8) Chairmen's Letter, dated October 27, 1997 (included as an exhibit
to Schedule 14D-1 filed by COMFORCE Corporation on October 27, 1997
and incorporated herein by reference).
(a)(9) Prospectus Supplement, dated November 19, 1997 (included as an
exhibit to Amendment No. 1 to Schedule 14D-1 filed by COMFORCE
corporation on November 19, 1997 and incorporated herein by
reference).
(a)(10) Text of Press Release, dated November 19, 1997 (included as an
exhibit to Amendment No. 1 to Schedule 14D-1 filed by COMFORCE
corporation on November 19, 1997 and incorporated herein by
reference).
(a)(11) Current Report on Form 10-Q of Uniforce Services, Inc. (filed on
November 11, 1997).
(b)(1) Form of Purchase Agreement, dated November 19, 1997 between COMFORCE
Operating, Inc. and Natwest Capital Markets Limited regarding 12%
Senior Notes due 2007.
(b)(2) Form of Purchase Agreement, dated November 19, 1997, between COMFORCE
Corporation and NatWest Capital Markets Limited regarding 15%
Senior Secured PIK Debentures due 2009.
(b)(3) Commitment Letter, dated November 18, 1997 from Heller Financial,
Inc (included as an exhibit to Amendment No. 1 to Schedule 14D-1
filed by COMFORCE corporation on November 19, 1997 and incorporated
herein by reference).
(c)(1) Agreement and Plan of Merger, dated as of August 13, 1997, by and
between the Offeror, COMFORCE Columbus, Inc. and the Company
(included as an exhibit to Current Report on Form 8-K filed by
COMFORCE Corporation on August 20, 1997 and incorporated herein by
reference).
[7]
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(c)(2) Shareholder's Agreement, dated as of August 13, 1997, by and among
COMFORCE Corporation, COMFORCE Columbus, Inc., John Fanning and
Fanning Asset Partners, L.P. (included as an exhibit to Current
Report on Form 8-K filed by COMFORCE Corporation on August 20, 1997
and incorporated herein by reference).
(c)(3) Registration Rights Agreement, dated as of August 13, 1997, by and
among COMFORCE Corporation, COMFORCE Columbus, Inc., John Fanning
and Fanning Asset Partners, L.P. (included as an exhibit to
Amendment No. 2 to Registration Statement on Form S-4 filed by the
Company on October 24, 1997 and incorporated herein by reference).
(d) Opinion of Doepken Keevican & Weiss Professional Corporation
(included as an exhibit to Amendment No. 2 to Registration
Statement on Form S-4 filed by the Company on October 24, 1997 and
incorporated herein by reference).
(e)(1) Prospectus/Proxy Statement, dated October 27, 1997 (filed as
Exhibit (a)(1) above).
(e)(2) Prospectus Supplement, dated November 19, 1997 (filed as Exhibit
(a)(9) above).
[8]
<PAGE>
Exhibit 99(b)(1)
$110,000,000
COMFORCE OPERATING, INC.
12% SENIOR NOTES DUE 2007
PURCHASE AGREEMENT
November 19, 1997
<PAGE>
COMFORCE OPERATING, INC.
$110,000,000
12% Senior Notes due 2007
PURCHASE AGREEMENT
------------------
November 19, 1997
Natwest Capital Markets Limited
135 Bishopsgate
London, EC2M 3XT
England
Ladies and Gentlemen:
COMFORCE Operating , Inc., a Delaware corporation (the "Company")
hereby confirms its agreement with you (the "Initial Purchaser"), as set forth
below.
1. THE SECURITIES. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchaser
$110,000,000 aggregate principal amount of its 12% Senior Notes due 2007 (the
"Notes"). The Notes are to be issued under an indenture (the "Indenture") to be
dated as of November 26, 1997, by and among the Company and Wilmington Trust
Company, as trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchaser
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has
prepared a preliminary offering memorandum dated November 1, 1997 (the
"Preliminary Memorandum") and will prepare a final offering memorandum dated
November 19, 1997 (the "Final Memorandum"; the Preliminary Memorandum and the
Final Memorandum each herein being referred to as the "Memorandum") setting
forth or including a description of the terms of the Notes, the terms of the
offering of the Notes, a description of the Company and any material
developments relating to the Company occurring after the date of the most recent
historical financial statements included therein.
The Company and the Initial Purchaser will enter into a
Registration Rights Agreement (the "Registration Rights Agreement") prior to
or concurrently with the issuance of the Notes. Pursuant to the Registration
Rights Agreement, under the circumstances and the terms set forth therein,
the Company will agree to file with the Securities and Exchange Commission
(the "Commission"): (i) a registration statement on Form S-4 (the "Exchange
Offer Registration Statement") relating to a registered Exchange Offer (as
defined in the Registration Rights Agreement) for the Notes under the Act to
offer to the holders of the Notes the
<PAGE>
opportunity to exchange their Notes for an issue of notes substantially
identical to the Notes (except that (a) interest thereon will accrue from the
last date on which interest was paid on the Notes, or if no such interest has
been paid, from November 26, 1997, (b) such Notes will not contain
restrictions on transfer, and (c) such Notes will not contain provisions
relating to an increase in their interest rate under certain circumstances)
that would be registered under the Act (the "Exchange Notes"); or (ii)
alternatively, in the event that applicable interpretations of the Commission
do not permit the Company to effect the Exchange Offer or do not permit any
holder of the Notes to participate in the Exchange Offer, a shelf
registration statement (the "Shelf Registration Statement") to cover resales
of Notes by such holders who satisfy certain conditions relating to,
including the provision of information in connection with the Shelf
Registration Statement.
2. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to, and agrees with the Initial Purchaser that:
(a) Neither the Preliminary Memorandum as of the date thereof
nor the Final Memorandum nor any amendment or supplement thereto as of the
date thereof and at all times subsequent thereto up to the Closing Date (as
defined in Section 3 below) contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties set
forth in this Section 2(a) do not apply to statements or omissions made in
reliance upon and in conformity with information relating to the Initial
Purchaser furnished to the Company in writing by the Initial Purchaser
expressly for use in the Preliminary Memorandum, the Final Memorandum or any
amendment or supplement thereto. The Final Memorandum conforms in all
material respects to the requirements of the Act and the rules and
regulations promulgated thereunder, as if it was a prospectus filed as part
of a registration statement on Form S-3 relating to the Notes.
(b) As of the Closing Date, the Company will have the
capitalization set forth in the Final Memorandum; all of the outstanding
shares of capital stock of the Company have been, and as of the Closing Date
will be, duly authorized and validly issued, are fully paid and nonassessable
and were not issued in violation of any preemptive or similar rights; there
are no (i) options, warrants or other rights to purchase from the Company,
(ii) agreements or other obligations of the Company to issue or (iii) other
rights to convert any obligation into, or exchange any securities for, shares
of capital stock of or ownership interests in the Company outstanding. The
entities listed on Schedule 2 hereto are the only subsidiaries, direct or
indirect of the Company (collectively, the "Subsidiaries"). Except as
disclosed on Schedule 2 or as disclosed in the Final Memorandum, the Company
does not own, directly or indirectly, any capital stock or any other equity
or long-term debt securities or have any equity interest in any firm,
partnership, joint venture, limited liability company or other entity.
(c) The Company and each of the Subsidiaries has been duly
incorporated, is validly existing and is in good standing as a corporation under
the laws of its jurisdiction of incorporation, with all requisite corporate
power and authority to own its properties and conduct its business as now
conducted, and as described in the Final Memorandum; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign corporation in good
standing in
<PAGE>
all other jurisdictions where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate, have
a material adverse effect on the general affairs, management, business,
condition (financial or otherwise), prospects or results of operations of the
Company and the Subsidiaries, taken as a whole (any such event, a "Material
Adverse Effect").
(d) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Notes. The Notes have
been duly and validly authorized by the Company and, when executed by the
Company and authenticated by the Trustee in accordance with the provisions of
the Indenture and, when delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement, will have been duly executed,
issued and delivered and will constitute valid and legally binding obligations
of the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and (ii) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(e) The Company has all requisite power and authority to execute,
deliver and perform its obligations under the Exchange Notes and the Private
Exchange Notes (as defined in the Registration Rights Agreement). The Exchange
Notes and the Private Exchange Notes have been duly and validly authorized by
the Company and, when the Exchange Notes have been duly executed and delivered
by the Company and authenticated by the Trustee in accordance with the terms of
the Registration Rights Agreement and the Indenture, will constitute valid and
legally binding obligations of the Company, entitled to the benefits of the
Indenture, and are enforceable against the Company in accordance with their
terms, except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of equity
and the discretion of any court before which any proceeding therefor may be
brought.
(f) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Indenture. The
Indenture meets the requirements for qualification under the Trust Indenture Act
of 1939, as amended (the "TIA"). The Indenture has been duly and validly
authorized by the Company and, when executed and delivered by the Company
(assuming the due authorization, execution and delivery of the Indenture by the
Trustee), will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization
or other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(g) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the Company, will
constitute a valid and legally binding agreement of the Company
<PAGE>
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(h) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly authorized and has been duly executed and delivered by the Company
and (assuming the due authorization, execution and delivery of this Agreement by
the Initial Purchaser) constitutes a valid legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
that the enforcement hereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating the
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(i) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the performance of
this Agreement, the Registration Rights Agreement and the Indenture by the
Company or the consummation by the Company of the transactions contemplated
hereby and thereby that are to be completed on or before the Closing Date,
except such as have been obtained or disclosed in the Final Memorandum and such
as may be required under state securities or "Blue Sky" laws in connection with
the purchase and resale of the Notes by the Initial Purchaser. None of the
Company or the Subsidiaries is (i) in violation of its certificate of
incorporation or bylaws (or similar organizational document), (ii) in breach or
violation of any statute, judgment, decree, order, rule or regulation applicable
to any of them or any of their respective properties or assets, or (iii) in
breach of or in default under (nor has any event occurred which, with notice or
passage of time or both, would constitute a default under) or in violation of
any of the terms or provisions of any indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit, certificate,
contract or other agreement or instrument to which any of them is a party or to
which any of them or their respective properties or assets is subject
(collectively, "Contracts") except such violations, breaches or defaults that
would not, individually or in the aggregate, have a Material Adverse Effect.
(j) The execution, delivery and performance by the Company of
this Agreement, the Indenture, and the Registration Rights Agreement and the
consummation by the Company of the transactions contemplated hereby and thereby,
and the fulfillment of the terms hereof and thereof, and the retention by
COMFORCE Corporation of NatWest Capital Markets Limited ("NatWest") pursuant to
those certain letter agreements (including the engagement and indemnity letter
agreements) dated as of ________, 1997 (collectively, the "NatWest Engagement
Letter") and NatWest's acting as contemplated hereby and thereby, will not
conflict with or constitute or result in a breach of or a default under (or an
event which with notice or passage of time or both would constitute a default
under) or violation of any of (i) the terms or provisions of any Contract except
such conflicts, breaches, defaults or violations, that would not, individually
or in the aggregate, have a Material Adverse Effect (ii) the certificate of
incorporation or by-laws (or similar organizational document) of the Company or
any of the Subsidiaries, or (iii) any statute, judgment, decree, order, rule or
regulation applicable to the
<PAGE>
Company or any of the Subsidiaries or any of their respective properties or
assets except such conflicts, breaches, defaults or violations that would
not, individually or in the aggregate, have a Material Adverse Effect.
(k) The audited consolidated financial statements of the Company
and the Subsidiaries and of Uniforce Services, Inc. and its subsidiaries
included in the Preliminary Memorandum and the Final Memorandum present fairly
in all material respects the financial position, results of operations and cash
flows of such entities at the dates and for the periods to which they relate and
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis, except as otherwise stated therein. The summary
and selected financial and statistical data in the Preliminary Memorandum and
the Final Memorandum present fairly in all material respects the information
shown therein and have been prepared and compiled on a basis consistent with the
audited financial statements included therein, except as otherwise stated
therein. Each of Coopers & Lybrand LLP and KPMG Peat Marwick LLP is an
independent public accounting firm within the meaning of the Act and the rules
and regulations promulgated thereunder.
(l) Except as noted in the Memorandum, the pro forma financial
information included in the Preliminary Memorandum and the Final Memorandum (i)
comply as to form in all material respects with the applicable requirements of
Regulation S-X promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (ii) have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, and (iii) have been properly computed on the bases described
therein; the assumptions used in the preparation of the pro forma financial data
and other pro forma financial information included in the Preliminary Memorandum
and the Final Memorandum are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(m) There is not pending or, to the knowledge of the Company and
the Subsidiaries, threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any of the Subsidiaries is a party, or to
which the property or assets of the Company or any of the Subsidiaries are
subject, before or brought by any court, arbitrator or governmental agency or
body which, if determined adversely to the Company or any of the Subsidiaries
would, individually or in the aggregate, have a Material Adverse Effect or which
seeks to restrain, enjoin, prevent the consummation of or otherwise challenge
the issuance or sale of the Notes to be sold hereunder or the consummation of
the other transactions described in the Preliminary Memorandum and the Final
Memorandum.
(n) Each of the Company and the Subsidiaries owns or possesses
adequate licenses or other rights to use all material patents, trademarks,
service marks, trade names, copyrights and know-how necessary to conduct the
businesses now or proposed to be operated by it as described in the Preliminary
Memorandum and the Final Memorandum, and none of the Company or the Subsidiaries
has received any notice of infringement of or conflict with (or knows of any
such infringement of or conflict with) asserted rights of others with respect to
any patents, trademarks, service marks, trade names, copyrights or know-how
which, if such
<PAGE>
assertion of infringement or conflict were sustained, would, individually or
in the aggregate, have a Material Adverse Effect.
(o) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, presently required or
necessary to own or lease, as the case may be, and to operate its respective
properties and to carry on its respective businesses as now or proposed to be
conducted as set forth in the Preliminary Memorandum and the Final Memorandum
(collectively, the "Permits"), except where the failure to obtain such Permits
would not, individually or in the aggregate, have a Material Adverse Effect;
each of the Company and the Subsidiaries has fulfilled and performed all of its
obligations with respect to such Permits and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the holder of any
such Permit except where such revocation, termination or impairment would not,
individually or in the aggregate, have a Material Adverse Effect; and none of
the Company or the Subsidiaries has received any notice of any proceeding
relating to revocation or modification of any such Permit, except as described
in the Final Memorandum and except where such revocation or modification would
not, individually or in the aggregate, have a Material Adverse Effect.
(p) Since the date of the most recent financial statements
appearing in the Final Memorandum, except as described in the Final Memorandum,
(i) none of the Company or the Subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into or agreed to enter into any
transactions or Contracts (written or oral) not in the ordinary course of
business which liabilities, obligations, transactions or Contracts could,
individually or in the aggregate, be material to the general affairs,
management, business, condition (financial or otherwise), prospects or results
of operations of the Company and the Subsidiaries, taken as a whole (a "Material
Change"), (ii) none of the Company or the Subsidiaries has purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock and (iii) other than as described
in the Final Memorandum, there shall not have been any change in the capital
stock or long-term indebtedness of the Company or the Subsidiaries which could,
individually or in the aggregate, constitute a Material Change.
(q) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and the Subsidiaries, either individually or taken as a whole, from that
set forth in the Final Memorandum (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(r) Each of the Company and the Subsidiaries has filed all
necessary federal, state, local and foreign income and franchise tax returns,
and has paid all taxes shown as due thereon; and, other than tax deficiencies
which the Company or any Subsidiary is contesting in good faith, and for which
the Company or such Subsidiary has provided adequate reserves, there is no tax
deficiency that has been asserted against the Company or any of the
Subsidiaries.
<PAGE>
(s) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which are reliable and accurate.
(t) None of the Company, the Subsidiaries or any agent acting on
their behalf has taken or will take any action that might cause this Agreement
or the sale of the Notes to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or as the
same may hereafter be in effect, on the Closing Date.
(u) Each of the Company and the Subsidiaries has good and
marketable title to all real property and good title to all personal property
described in the Preliminary Memorandum and the Final Memorandum as being owned
by it and good and marketable title to any leasehold estate in the real and
personal property described in the Preliminary Memorandum and the Final
Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Preliminary Memorandum
and the Final Memorandum or to the extent the failure to have such title or the
existence of such liens, charges, encumbrances or restrictions would not,
individually or in the aggregate, have a Material Adverse Effect. All Contracts
to which the Company or any of the Subsidiaries is a party or by which any of
them is bound are valid and enforceable against the Company or such Subsidiary,
and are valid and enforceable against the other party or parties thereto and are
in full force and effect with only such exceptions as would not, individually or
in the aggregate, have a Material Adverse Effect.
(v) There are no legal or governmental proceedings involving or
affecting the Company or any Subsidiary or any of their respective properties or
assets which would be required to be described in a prospectus pursuant to the
Act that are not described in the Preliminary Memorandum and the Final
Memorandum, nor are there any material contracts or other documents which would
be required to be described in a prospectus pursuant to the Act that are not
described in the Preliminary Memorandum and the Final Memorandum.
(w) Except as would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect (A) each of the Company
and the Subsidiaries is in compliance with and not subject to liability under
applicable Environmental Laws (as defined below), (B) each of the Company and
the Subsidiaries has made all filings and provided all notices required under
any applicable Environmental Law, and has and is in compliance with all
Permits required under any applicable Environmental Laws and each of them is
in full force and effect, (C) there is no civil, criminal or administrative
action, suit, demand, claim, hearing, notice of violation, investigation,
proceeding, notice or demand letter or request for information pending or, to
the knowledge of the Company or any of the Subsidiaries, threatened against
the Company or any of the Subsidiaries under any Environmental Law, (D) no
lien, charge, encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property owned,
operated, leased or controlled by the Company or any of the Subsidiaries, (E)
none of the Company or the Subsidiaries has received notice that it has been
identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA") or any comparable state law, (F) no property or facility of the
Company or any of the Subsidiaries is (i) listed or proposed for listing on
the National Priorities List under CERCLA or is (ii) listed in the
Comprehensive Environmental
<PAGE>
Response, Compensation, Liability Information System List promulgated
pursuant to CERCLA, or on any comparable list maintained by any state or
local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable foreign and federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, law relating to (i) emissions, discharges,
releases or threatened releases of hazardous materials, into the environment
(including, without limitation, ambient air, surface water, ground water,
land surface or subsurface strata), (ii) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of hazardous materials, and (iii) underground and above ground
storage tanks, and related piping, and emissions, discharges, releases or
threatened releases therefrom.
(x) There is no strike, labor dispute, slowdown or work
stoppage with the employees of the Company or any of the Subsidiaries which
is pending or, to the knowledge of the Company or any of the Subsidiaries,
threatened.
(y) Each of the Company and the Subsidiaries carries insurance
in such amounts and covering such risks as is adequate for the conduct of its
business and the value of its properties. Neither the Company nor any of its
Subsidiaries has received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or necessary to
be made in order to continue such insurance.
(z) None of the Company or the Subsidiaries has any material
liability for any prohibited transaction (within the meaning of Section 4975(c)
of the Code or Part 4 of Title I of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")) (or an accumulated funding deficiency within the
meaning of Section 412 of the Code or Section 302 of ERISA) or any complete or
partial withdrawal liability (within the meaning of Section 4201 of ERISA) with
respect to any pension, profit sharing or other plan which is subject to ERISA,
to which the Company or any of the Subsidiaries makes or ever has made a
contribution and in which any employee of the Company or of any Subsidiary is or
has ever been a participant. With respect to such plans, the Company and each
Subsidiary is in compliance in all material respects with all applicable
provisions of ERISA.
(aa) Each of the Company and the Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(bb) None of the Company or the Subsidiaries will be an
"investment company" or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
<PAGE>
(cc) The Notes, the Exchange Notes, the Indenture and the
Registration Rights Agreement will conform in all material respects to the
descriptions thereof in the Final Memorandum.
(dd) No holder of securities of the Company will be entitled
to have such securities registered under the registration statements required
to be filed by the Company pursuant to the Registration Rights Agreement
other than as expressly permitted thereby.
(ee) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable
value of the assets of each of the Company and the Subsidiaries (each on a
consolidated basis) will exceed the sum of its stated liabilities and
identified contingent liabilities; none of the Company or the Subsidiaries
(each on a consolidated basis) is, nor will any of the Company or the
Subsidiaries (each on a consolidated basis) be, after giving effect to the
execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, (a) left with unreasonably small
capital with which to carry on its business as it is currently or proposed to
be conducted, (b) unable to pay its debts (contingent or otherwise) as they
mature or otherwise become due or (c) otherwise insolvent.
(ff) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the
Act) has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any "security"
(as defined in the Act) which is or could be integrated with the sale of the
Notes in a manner that would require the registration under the Act of the
Notes or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a public
offering within the meaning of Section 4(2) of the Act. The Company has not
distributed and will not distribute any offering material in connection with
the offering of the Notes other than the Final Memorandum and any Preliminary
Memorandum. No securities of the same class as the Notes have been issued and
sold by the Company within the six-month period immediately prior to the date
hereof.
(gg) Assuming the accuracy of the representations and
warranties of the Initial Purchaser in Section 8 hereof, it is not necessary
in connection with the offer, sale and delivery of the Notes to the Initial
Purchaser in the manner contemplated by this Agreement to register any of the
Notes under the Act or to qualify the Indenture under the TIA.
(hh) No securities of the Company or any Subsidiary are of the
same class (within the meaning of Rule 144A as promulgated under the Act
("Rule 144A")) as the Notes and listed on a national securities exchange
registered under Section 6 of the Exchange Act, or quoted in a U.S. automated
inter-dealer quotation system.
(ii) None of the Company or the Subsidiaries has taken, nor
will any of them take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Notes.
<PAGE>
(jj) None of the Company or the Subsidiaries, or any person
acting on any of their behalf (other than the Initial Purchaser) has engaged
in any directed selling efforts (as that term is defined in Regulation S
under the Act ("Regulation S")) with respect to the Notes; the Company and
its respective Affiliates and any person acting on any of their behalf (other
than the Initial Purchaser or any Affiliate of the Initial Purchaser) have
complied with the offering restrictions requirement of Regulation S.
(kk) Each of the Preliminary Memorandum and the Final
Memorandum, as of its respective date, contains all of the information that,
if requested by a prospective purchaser of the Notes, would be required to be
provided to such prospective purchaser to Rule 144A(d)(4) under the Act.
(ll) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(mm) Neither the Company nor any of its Subsidiaries nor, to
the Company's knowledge, 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 of
funds to, or received or retained any funds from, 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, (iii) violated or is in violation of the Foreign
Corrupt Practices Act of 1977, (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment or (v) 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.
(nn) Except as disclosed in any Memorandum, 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.
(oo) Neither the Company nor any affiliate of the Company does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Florida Statutes Section 517.075.
(pp) None of the Company or the Subsidiaries has engaged or
retained any person, other than NatWest as the Initial Purchaser, to act as a
financial advisor, underwriter or placement agent in connection with the
issuance of the Notes and, except for the fees and expenses payable to
Unterberg, Towbin, L.P. as the Company's financial advisor in connection with
the Uniforce Acquisition and fees and expenses payable in connection with the
issuance of the Notes as described in the Final Memorandum, no person has the
right to receive a material amount of financial advisory, underwriting,
placement, finder's or similar fees in connection with, or as a result of,
the issuance of the Notes and the purchase of the Notes by the Initial
Purchaser or the consummation of the other transactions contemplated hereby.
<PAGE>
(qq) Each of COMFORCE Corporation and COMFORCE Columbus, Inc.
has all requisite corporate power and authority to execute, deliver and
perform its obligations under that certain Agreement and Plan of Merger dated
as of August 13, 1997, by and among COMFORCE Corporation, COMFORCE Columbus,
Inc. and Uniforce Services, Inc. (the "Merger Agreement"). The Merger
Agreement has been duly and validly authorized, executed and delivered by
COMFORCE Corporation and COMFORCE Columbus, Inc. and constitutes a valid and
legally binding agreement of COMFORCE Corporation and COMFORCE Columbus, Inc.
enforceable against COMFORCE Corporation and COMFORCE Columbus, Inc. in
accordance with its terms, except that the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) to
general principles of equity and the discretion of any court before which any
proceeding therefor may be brought.
(rr) On the Closing Date, the Company shall have consummated
its offer to purchase the Common Stock, par value $0.50 per share of Uniforce
Services, Inc. (the "Offer") pursuant to its tender offer statement on
Schedule 14D-1 as filed with the Commission on October 27, 1997 and such
offer, and the consummation thereof shall have complied in all material
respects with all applicable laws, including, without limitation, the
Exchange Act and the rules and regulations promulgated thereunder.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered to the Initial Purchaser or to counsel for the
Initial Purchaser shall be deemed a joint and several representation and
warranty by the Company and each of the Subsidiaries to the Initial Purchaser
as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF THE NOTES. On the basis of
the representations, warranties, agreements and covenants herein contained
and subject to the terms and conditions herein set forth, the Company agrees
to issue and sell to the Initial Purchaser, and the Initial Purchaser agrees
to purchase from the Company the principal amount of Notes set forth opposite
its name on SCHEDULE 1 hereto at 97.0000% of their principal amount. One or
more certificates in definitive form for the Notes that the Initial Purchaser
has agreed to purchase hereunder, and in such denomination or denominations
and registered in such name or names as the Initial Purchaser requests upon
notice to the Company at least 36 hours prior to the Closing Date, shall be
delivered by or on behalf of the Company to the Initial Purchaser, against
payment by or on behalf of the Initial Purchaser of the purchase price
therefor by wire transfer to such account or accounts as the Company shall
specify prior to the Closing Date, or by such means as the parties hereto
shall agree prior to the Closing Date. Such delivery of and payment for the
Notes shall be made at the offices of White & Case, 1155 Avenue of the
Americas, New York, New York at 10:00 A.M., New York time, on November 26,
1997, or at such other place, time or date as the Initial Purchaser, on the
one hand, and the Company, on the other hand, may agree upon, such time and
date of delivery against payment being herein referred to as the "Closing
Date." The Company will make such certificate or certificates for the Notes
available for inspection and packaging by the Initial Purchaser at such place
as designated by the Initial Purchaser at least 24 hours prior to the Closing
Date.
<PAGE>
4. OFFERING BY THE INITIAL PURCHASER. The Initial Purchaser
proposes to make an offering of the Notes at the price and upon the terms set
forth in the Final Memorandum, as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchaser is advisable.
5. COVENANTS OF THE COMPANY AND THE SUBSIDIARIES. The
Company covenants and agrees with the Initial Purchaser that:
(a) The Company will not amend or supplement the Final
Memorandum or any amendment or supplement thereto unless the Initial
Purchaser shall previously have been advised and furnished a copy of such
amendment or supplement for a reasonable period of time prior to the proposed
amendment or supplement and as to which the Initial Purchaser shall have
consented. The Company will promptly, upon the reasonable request of the
Initial Purchaser or counsel for the Initial Purchaser, make any amendments
or supplements to the Preliminary Memorandum or the Final Memorandum that may
be necessary or advisable in connection with the resale of the Notes by the
Initial Purchaser.
(b) The Company will cooperate with the Initial Purchaser in
arranging for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of which jurisdictions as the Initial Purchaser
may designate and will continue such qualifications in effect for as long as
may be necessary to complete the resale of the Notes; PROVIDED, HOWEVER, that
in connection therewith, none of the Company or any Subsidiary shall be
required to qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction or subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchaser of the Notes or the Private Exchange
Notes, any event occurs or information becomes known as a result of which the
Final Memorandum as then amended or supplemented would, in the judgment of
the Company or in the reasonable opinion of your counsel include any untrue
statement of a material fact, or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is necessary at
any time to amend or supplement the Final Memorandum to comply with
applicable law, the Company will promptly notify the Initial Purchaser
thereof and will prepare, at the expense of the Company, an amendment or
supplement to the Final Memorandum that corrects such statement or omission
or effects such compliance.
(d) The Company will, without charge, provide to the Initial
Purchaser and to counsel for the Initial Purchaser as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or
supplement thereto as the Initial Purchaser may reasonably request.
(e) The Company will apply the net proceeds from the sale of
the Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) From the Closing Date until the date that no Notes are
outstanding under the Indenture, the Company will furnish to the Initial
Purchaser copies of all reports and other
<PAGE>
communications (financial or otherwise) furnished by the Company to the
Trustee, or the holders of the Notes and, as soon as available, copies of any
reports or financial statements furnished to or filed by the Company with the
Commission or any national securities exchange on which any class of
securities of the Company may be listed.
(g) Prior to the Closing Date, the Company and the
Subsidiaries will furnish to the Initial Purchaser, as soon as they have been
prepared, a copy of any unaudited interim financial statements of the Company
and the Subsidiaries for any period subsequent to the period covered by the
most recent financial statements appearing in the Final Memorandum.
(h) None of the Company, the Subsidiaries or any of their
Affiliates will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Act) which could be
integrated with the sale of the Notes in a manner which would require the
registration under the Act of the Notes.
(i) None of the Company or the Subsidiaries will engage in any
form of "general solicitation" or "general advertising" (as those terms are
used in Regulation D under the Act) in connection with the offering of the
Notes or in any manner involving a public offering of the Notes within the
meaning of Section 4(2) of the Act.
(j) None of the Company, the Subsidiaries or their Affiliates
nor any person acting on its or their behalf will engage, in any directed
selling efforts (as that term is defined in Regulation S) with respect to the
Notes, and will comply, and will have its Affiliates and each person acting
on its or their behalf comply, with the offering restrictions requirements of
Regulation S.
(k) For so long as any of the Notes remain outstanding, the
Company and the Subsidiaries will make available, upon request, to any seller
of such Notes the information specified in Rule 144A(d)(4) under the Act,
unless the Company and the Subsidiaries are then subject to Section 13 or
15(d) of the Exchange Act.
(l) For a period of 180 days from the date of the Final
Memorandum, the Company and the Subsidiaries will not offer for sale, sell,
contract to sell or otherwise dispose of, directly or indirectly, or file a
registration statement for, or announce any offer, sale, contract for sale of
or other disposition of any debt securities issued or guaranteed by the
Company or any of its subsidiaries (other than the Notes or the Exchange
Notes or the Private Exchange Notes) without the prior written consent of the
Initial Purchaser;
(m) During the period from the Closing Date until two years
after the Closing Date, without the prior written consent of the Initial
Purchaser, the Company and the Subsidiaries will not, and will not permit any
of their affiliates (as defined in Rule 144 under the Securities Act) to,
resell any of the Notes that have been reacquired by them, except for Notes
purchased by the Company or any of its affiliates and resold in a transaction
registered under the Securities Act;
(n) In connection with the offering of the Notes, until the
Initial Purchaser shall have notified the Company of the completion of the
resale of the Notes, the Company and the
<PAGE>
Subsidiaries will not, and will cause their affiliated purchasers (as defined
under the Exchange Act) not to, either alone or with one or more other
persons, bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Notes, or attempt to
induce any person to purchase any Notes; and not to, and to cause its
affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of
the Notes;
(o) The Company and the Subsidiaries will not take any action
prior to the execution and delivery of the Indenture which, if taken after
such execution and delivery, would have violated any of the covenants
contained in the Indenture;
(p) The Company and the Subsidiaries will not take any action
prior to Closing Date which would require the Final Memorandum to be amended
or supplemented pursuant to Section 5(c);
(q) Prior to the Closing Date, the Company and the
Subsidiaries will not issue any press release or other communication directly
or indirectly or hold any press conference with respect to the Company, its
condition, financial or otherwise, or earnings, business affairs or business
prospects (except for routine oral marketing communications in the ordinary
course of business and consistent with the past practices of the Company and
of which the Initial Purchaser is notified), without the prior written
consent of the Initial Purchaser, unless in the judgment of the Company and
its counsel, after notification to the Initial Purchasers, such press release
or communication is required by law; and
(r) The Company will use its best efforts to (i) permit the
Notes to be designated PORTAL securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the Private Offerings,
Resales and Trading through Automated Linkages market (the "Portal Market")
and (ii) permit the Notes to be eligible for clearance and settlement through
the Depository Trust Company.
6. EXPENSES. The Company agrees to pay all costs and expenses
incident to the performance of their obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 11 hereof, including all costs
and expenses incident to (i) the printing, word processing or other
production of documents with respect to the transactions contemplated hereby,
including any costs of printing the Preliminary Memorandum and the Final
Memorandum and any amendment or supplement thereto, and any "Blue Sky"
memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchaser of copies of the foregoing documents, (iii) the fees and
disbursements of counsel, accountants and any other experts or advisors
retained by the Company, (iv) preparation (including printing), issuance and
delivery to the Initial Purchaser of the Notes, (v) the qualification of the
Notes under state securities and "Blue Sky" laws, including filing fees and
fees and disbursements of counsel for the Initial Purchaser relating thereto,
(vi) the Company's expenses in connection with any meetings with prospective
investors in the Notes, (vii) fees and expenses of the Trustee including fees
and expenses of counsel, (viii) all expenses and listing fees incurred in
connection with the application for quotation of the Notes on the PORTAL
Market, (ix) any fees charged by investment rating agencies for the rating of
the
<PAGE>
Notes. If the sale of the Notes provided for herein is not consummated
because any condition to the obligations of the Initial Purchaser set forth
in Section 7 hereof is not satisfied, because this Agreement is terminated or
because of any failure, refusal or inability on the part of the Company to
perform all obligations and satisfy all conditions on their part to be
performed or satisfied hereunder (other than solely by reason of a default by
the Initial Purchaser of their obligations hereunder after all conditions
hereunder have been satisfied in accordance herewith), the Company agrees to
promptly reimburse the Initial Purchaser upon demand for all out-of-pocket
expenses (including all fees, disbursements and charges of White & Case,
counsel for the Initial Purchaser) that shall have been incurred by the
Initial Purchaser in connection with the proposed purchase and sale of the
Notes.
7. CONDITIONS OF THE INITIAL PURCHASER'S OBLIGATIONS. The
obligation of the Initial Purchaser to purchase and pay for the Notes shall,
in its sole discretion, be subject to the satisfaction or waiver of the
following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have
received the opinion, dated as of the Closing Date and addressed to the
Initial Purchaser, of Doepken, Keevican & Weiss, counsel for the Company in
form and substance satisfactory to counsel for the Initial Purchaser,
substantially to the effect that:
(i) Each of the Company and the material Subsidiaries is duly
incorporated, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation and has all requisite corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Final Memorandum. Each of the Company and
the material Subsidiaries is duly qualified as a foreign corporation and is
in good standing in the jurisdictions set forth below such Subsidiaries' name
on Schedule A attached to such opinion.
(ii) The Company has the authorized and issued capital stock
set forth in the Final Memorandum. To the knowledge of Doepken Keevican &
Weiss, the Subsidiaries constitute all the subsidiaries of the Company and
the Company will own the percentage of the issued and outstanding stock (or
other equity securities of each of the Subsidiaries set forth on Schedule 2
hereto). All of the outstanding shares of capital stock of the Company and
the Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and were not issued in violation of any preemptive or
similar rights; all of the outstanding shares of capital stock of the
Subsidiaries are owned, directly or indirectly, by the Company, free and
clear of all security interests perfected, or otherwise, and free and clear
of all other liens, encumbrances, equities and claims or restrictions on
transferability or voting in each case other than a pledge of the shares of
such Subsidiary pursuant to the provisions of the New Credit Facility.
(iii) Except as set forth in the Final Memorandum, (A) to the
knowledge of such counsel no options, warrants or other rights to purchase
from the Company or any Subsidiary shares of capital stock or ownership
interests in the Company or any Subsidiary are outstanding, (B) no agreements
or other obligations of the Company or any Subsidiary to issue, or other
rights to cause the Company or any Subsidiary to convert, any obligation
into, or exchange any securities for, shares of capital stock or ownership
interests in the Company or any Subsidiary are outstanding and (C) no holder
of securities of the Company or any Subsidiary is
<PAGE>
entitled to have such securities registered under a registration statement
filed by the Company and the Subsidiaries pursuant to the Registration Rights
Agreement.
(iv) The Company has all requisite corporate power and
authority to execute, deliver and perform its respective obligations under
this Agreement, the Indenture, the Notes, the Exchange Notes and the Private
Exchange Notes; the Indenture is in sufficient form for qualification under
the TIA; the Indenture has been duly and validly authorized by the Company
and, when duly executed and delivered by the Company (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(v) The Global Note (as such term is defined in the Indenture)
is, and each other Note, when issued, will be, in the form contemplated by
the Indenture. The Global Note and each other Note has been duly and validly
authorized by the Company and when duly executed and delivered by the Company
and, in the case of the Global Note, when paid for by the Initial Purchaser
in accordance with the terms of this Agreement (assuming the due
authorization, execution and delivery of the Indenture by the Trustee and due
authentication and delivery of the Notes by the Trustee in accordance with
the Indenture), will constitute the valid and legally binding obligations of
the Company, entitled to the benefits of the Indenture, and enforceable
against the Company in accordance with their terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(vi) The Exchange Notes and the Private Exchange Notes have
been duly and validly authorized by the Company, and when the Exchange Notes
and the Private Exchange Notes have been duly executed and delivered by the
Company in accordance with the terms of the Registration Rights Agreement and
the Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee and due authentication and delivery of the Exchange
Notes and the Private Exchange Notes by the Trustee in accordance with the
Indenture), will constitute the valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture, and enforceable against
the Company in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought.
(vii) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Registration Rights Agreement; the Registration Rights Agreement has been
duly and validly authorized by the Company and, when duly executed and
delivered by the Company (assuming due authorization, execution and delivery
thereof by the Initial Purchaser), will constitute the valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that the
<PAGE>
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
No holder of securities of the Company nor COMFORCE Corporation, nor any of
the Subsidiaries will be entitled to have such securities registered under
the registration statement required to be filed pursuant to the Registration
Rights Agreement.
(viii) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby; this
Agreement and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and
delivery of this Agreement by the Initial Purchaser) constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that the enforcement thereof may be subject
to (i) bankruptcy insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be bought.
(ix) The Indenture, the Notes (when issued, authorized and
delivered), the Exchange Notes (when issued, authorized and delivered) and
the Registration Rights Agreement conform in all material respects to the
descriptions thereof contained in the Final Memorandum and the Statements in
the Final Memorandum under "Description of Notes" and "Notes Exchange Offer
and Registration Rights" insofar as they describe the provisions of the
documents and instruments therein described, constitute fair summaries
thereof in all material respects.
(x) No legal or governmental proceedings are pending or, to
the knowledge of such counsel, threatened to which any of the Company is a
party or to which the property or assets of the Company is subject before or
brought by any court, arbitrator or governmental agency or body which, if
determined adversely to the Company, would result, individually or in the
aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance or sale of
the Notes to be sold hereunder or the consummation of the other transactions
described in the Final Memorandum.
(xi) None of the Company or any material Subsidiary is (i) in
violation of its certificate of incorporation or bylaws (or similar
organizational document) or (ii) to the knowledge of such counsel, in breach
or violation of any judgment, decree or order of any court, arbitrator or
governmental body, agency or authority applicable to any of them or any of
their respective properties or assets.
(xii) The execution and delivery of this Agreement, the
Indenture, the Registration Rights Agreement and the consummation of the
transactions contemplated hereby and thereby (including, without limitation,
the issuance and sale of the Notes to the Initial Purchaser) will not
conflict with or constitute or result in a breach or a default under (or an
event which with notice or passage of time or both would constitute a default
under) or violation of any of (i) the terms or provisions of any Contract
known to such counsel, (ii) the certificate of
<PAGE>
incorporation or bylaws (or similar organizational document) of the Company
or any material Subsidiary, or (iii) (assuming compliance with all applicable
state securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 8 hereof)
any statute, judgment, decree, order, rule or regulation which, in such
counsel's experience, is normally applicable both to general business
corporations which are not engaged in regulated business activities and to
transactions of the type contemplated by the Final Memorandum.
(xiii) No consent, approval, authorization or order of any
governmental authority is required for the issuance and sale by the Company
of the Notes to the Initial Purchaser or the other transactions contemplated
hereby, except such as are disclosed in the Final Memorandum or as may be
required under Blue Sky laws, as to which such counsel need express no
opinion, and those which have previously been obtained.
(xiv) There are no legal or governmental proceedings involving
or affecting the Company or the Subsidiaries or any of their respective
properties or assets which would be required to be described in a prospectus
pursuant to the Act that are not described in the Final Memorandum nor are
there any material contracts or other documents which would be required to be
described in a prospectus pursuant to the Act that are not described in the
Final Memorandum.
(xv) The Company and each of the Subsidiaries possesses all
Permits presently required or necessary to own or lease, as the case may be,
and to operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as described in the Preliminary
Memorandum and the Final Memorandum, except where the failure to obtain such
Permits would not, individually or in the aggregate, have a Material Adverse
Effect; each of the Company and the Subsidiaries to the knowledge of Doepken,
Keevican & Weiss has fulfilled and performed all of its obligations with
respect to such Permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder of any
such Permit except where such revocation, termination or impairment would
not, individually or in the aggregate, have a Material Adverse Effect; and to
the knowledge of Doepken, Keevican & Weiss, none of the Company or the
Subsidiaries has received any notice of any proceeding relating to revocation
or modification of any such Permit, except as described in the Final
Memorandum and except where such revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect.
(xvi) Based on lien searches performed with respect to the
Company and the Subsidiaries, the real and personal property of the Company
described in the Preliminary Memorandum and the Final Memorandum is free and
clear of all liens, charges, encumbrances or restrictions, except as
described in the Preliminary Memorandum and the Final Memorandum or to the
extent that the failure to have such title or the existence of such liens,
charges, encumbrances or restrictions would not, individually or in the
aggregate, have a Material Adverse Effect.
<PAGE>
(xvii) None of the Company or the Subsidiaries is, or
immediately after the sale of the Notes to be sold hereunder and the
application of the proceeds from such sale (as described in the Final
Memorandum under the caption "Use of Proceeds") will be, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(xviii)The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(xix) No registration under the Act of the Notes is required
in connection with the sale of the Notes to the Initial Purchaser as
contemplated by this Agreement and the Final Memorandum or in connection with
the initial resale of the Notes by the Initial Purchaser in accordance with
Section 8 of this Agreement, and prior to the commencement of the Exchange
Offer or the effectiveness of the Shelf Registration Statement (as defined in
the Registration Rights Agreement), the Indenture is not required to be
qualified under the TIA, in each case assuming (i) that the purchasers who
buy such Notes in the initial resale thereof are qualified institutional
buyers as defined in Rule 144A promulgated under the Act ("QIBs") or
accredited investors as defined in Rule 501(a) (1), (2), (3) or (7)
promulgated under the Act ("Accredited Investors"), (ii) the accuracy of the
Initial Purchaser's representations in Section 8 hereof and those of the
Company contained in this Agreement regarding the absence of a general
solicitation in connection with the sale of such Notes to the Initial
Purchaser and the initial resale thereof and (iii) the due performance by the
Initial Purchaser of the agreements set forth in Section 8 hereof.
(xx) Neither the consummation of the transactions contemplated
by this Agreement nor the sale, issuance, execution or delivery of the Notes
will violate Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System.
(xxi) COMFORCE Corporation and COMFORCE Columbus, Inc. (the
"Merger Parties") have all requisite corporate power and authority to
execute, deliver and perform its obligations under the Merger Agreement. The
Merger Agreement has been duly and validly authorized, executed and delivered
by the Merger Parties and will constitute a valid and legally binding
agreement of the Merger Parties enforceable against the Merger Parties in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (regardless of whether
the issue of enforceability is considered in a proceeding in equity or at
law).
At the time the foregoing opinion is delivered, Doepken,
Keevican & Weiss shall additionally state that it has participated in
conferences with officers and other representatives of the Company and the
Subsidiaries, representatives of the independent public accountants for the
Company, representatives of the Initial Purchaser and counsel for the Initial
Purchaser, at which conferences the contents of the Final Memorandum and
related matters were discussed, and, although it has not independently
verified and is not passing upon and assumes no responsibility for the
accuracy, completeness or fairness of the statements contained in the Final
Memorandum, no facts have come to its attention which lead it to believe that
the Final Memorandum, on the date thereof or at the Closing Date, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements contained
<PAGE>
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such firm need express no opinion with
respect to the financial statements and related notes thereto and the other
financial, statistical and accounting data included in the Final Memorandum).
In rendering such opinion, Doepken, Keevican & Weiss shall have received and
may rely upon such certificates and other documents and information as it may
reasonably request to pass on such matters. The opinion of Doepken, Keevican
& Weiss described in this Section shall be rendered to the Initial Purchaser
at the request of the Company and shall so state therein. If requested by the
Trustee, Doepken, Keevican & Weiss shall allow the Trustee to rely on its
opinion and shall expressly so state.
References to the Final Memorandum in this subsection (a)
shall include any amendment or supplement thereto prepared in accordance with
the provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchaser shall have
received the opinion, in form and substance satisfactory to the Initial
Purchaser, dated as of the Closing Date and addressed to the Initial
Purchaser, of White & Case, counsel for the Initial Purchaser, with respect
to certain legal matters relating to this Agreement and such other related
matters as the Initial Purchaser may reasonably require. In rendering such
opinion, White & Case shall have received and may rely upon such certificates
and other documents and information as it may reasonably request to pass upon
such matters.
(c) On the Closing Date, the Initial Purchaser shall have
received the opinion, dated as of the Closing Date and addressed to the
Initial Purchaser, of Richards, Layton & Finger, counsel to the Trustee, in
form and substance satisfactory for counsel to the Initial Purchasers, dated
the Closing Date, substantially to the effect that:
(i) Wilmington Trust Company is a trust company validly
existing and in good standing under the laws of the State of Delaware.
(ii) Wilmington Trust Company has all requisite corporate
power and authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly and validly authorized by Wilmington
Trust Company and will constitute a valid and legally binding agreement of
Wilmington Trust Company, enforceable against it in accordance with its
terms, except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws applicable to trust
companies established in the State of Delaware now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(iii) The Notes delivered to the Initial Purchasers on the
Closing Date have been duly authenticated by the Trustee in accordance with
the terms of the Indenture.
(iv) The execution, delivery and performance by the Trustee of
the Indenture does not and will not require the authorization, consent or
approval of, the giving of notice to, the
<PAGE>
filing or registration with, or the taking of any other action in respect of,
any governmental authority or agency regulating the banking and trust
activities of the Trustee.
(d) The Initial Purchaser shall have received from each of
Coopers & Lybrand LLP and KPMG Peat Marwick LLP and Arthur Andersen LLP
comfort letters dated the date hereof and the Closing Date, in form and
substance satisfactory to counsel for the Initial Purchaser.
(e) On the Closing Date, the Initial Purchaser shall have
received the Indenture and the Registration Rights Agreement, duly
authorized, executed and delivered by each of the parties thereto, in form
and substance satisfactory to counsel for the Initial Purchaser, and
containing such terms and conditions that are usual and customary in
transactions similar to those contemplated hereby and thereby, dated the
Closing Date and each such agreement shall be in full force and effect
according to its terms.
(f) The Initial Purchaser shall have received good standing
certificates for the Company and each of the Subsidiaries from their
respective states of incorporation and from each of the respective
jurisdictions where each of them is qualified to do business as a foreign
corporation, in each case in form and substance satisfactory to counsel for
the Initial Purchaser.
(g) The representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date; the statements of the Company's officers made pursuant to any
certificate delivered in accordance with the provisions hereof shall be true
and correct on and as of the date made and on and as of the Closing Date; the
Company shall have performed all covenants and agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior
to the Closing Date; and, except as described in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date hereof),
subsequent to the date of the most recent financial statements in such Final
Memorandum, there shall have been no event or development that, individually
or in the aggregate, has or would be reasonably likely to have a Material
Adverse Effect.
(h) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(i) The Notes shall have been approved by the NASD for trading
in the PORTAL Market.
(j) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the Exchange
Act by the Commission or any amendment or proposed amendment thereof by the
Commission which in the judgment of the Initial Purchaser would materially
impair the ability of the Initial Purchaser to purchase, hold or effect
resales of the Securities as contemplated hereby.
(k) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or
<PAGE>
operations, of the Company and the Subsidiaries, taken as a whole, from that
set forth in the Final Memorandum that constitutes a Material Adverse Effect
and that makes it, in the Initial Purchaser's judgment, impracticable to
market the Notes on the terms and in the manner contemplated in the Final
Memorandum.
(l) Subsequent to the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), the conduct of the business and operations of
the Company shall not have been interfered with by strike, fire, flood,
hurricane, accident or other calamity (whether or not insured) or by any
court or governmental action, order or decree, and, except as otherwise
stated therein, the properties of the Company shall not have sustained any
loss or damage (whether or not insured) as a result of any such occurrence,
except any such interference, loss or damage which would not, individually or
in the aggregate, have a Material Adverse Effect.
(m) No securities of the Company shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(n) The Initial Purchaser shall have received certificates of
the Company, dated the Closing Date, signed by their respective Chairman of
the Board, President or any Senior Vice President and the Chief Financial
Officer, to the effect that:
(i) The representations and warranties of the Company
contained in this Agreement are true and correct as of the date hereof and as
of the Closing Date, and the Company has performed all covenants and
agreements and satisfied all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the
date of the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date hereof), no
event or events have occurred, no information has become known nor does any
condition exist that, individually or in the aggregate, would have a Material
Adverse Effect;
(iii) The sale of the Notes hereunder has not been enjoined
(temporarily or permanently); and
(iv) such other information as the Initial Purchaser may
reasonably request.
(o) COMFORCE Columbus Inc.'s tender offer for any and all
outstanding shares of Uniforce Services, Inc. the "Uniforce Tender Offer")
shall have expired, without the waiver of any material condition to the
consummation thereof set forth in COMFORCE Columbus Inc.'s Offer to Purchase,
as amended through the date hereof, and COMFORCE Columbus, Inc. shall have
accepted for payment an amount of shares of the common stock of Uniforce
Services, Inc. equal to no less than two thirds of all such shares issued and
outstanding.
(p) The Initial Purchaser shall have received a certificate
from the corporate secretary of the Company, dated the Closing Date,
attaching certified copies of (i) all resolutions
<PAGE>
of the Board of Directors of the Company or COMFORCE Corporation, as the case
may be, authorizing the transactions contemplated by this Agreement and (b)
the Merger Agreement, including, without limitation, approving the offering
of the Securities, the entering into this Agreement, the Indenture and the
Registration Rights Agreement, (ii) the certificate of incorporation and
by-laws of the Company, (iii) the Merger Agreement, and (iv) certifying the
names and true signatures of those officers of the Company executing any
documents contemplated by this Agreement.
(q) On or prior to the Closing Date, the Company shall have
entered into a Credit Agreement, to be dated as of November __, 1997, among
the Company, Heller Financial, Inc., and any other financial institutions
from time to time party thereto, (the "Heller Facility") which in the sole
judgment of the Initial Purchaser, shall have been entered into on
substantially the terms described in the Final Memorandum.
(r) The Offering of 20,000 Units (the "Units") representing
$20,000,000 aggregate principal amount of the 15% Senior Secured PIK
Debentures due 2009 of COMFORCE Corporation and 8.45 Warrants to purchase one
share of Common Stock of COMFORCE Corporation, in the sole judgment of the
Initial Purchaser, shall have been consummated as described in the Final
Memorandum.
On or before the Closing Date, the Initial Purchaser and
counsel for the Initial Purchaser shall have received such further documents,
opinions, certificates, letters and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have heretofore reasonably requested from the
Company and the Subsidiaries.
All such documents, opinions, certificates, letters, schedules
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchaser and counsel for the Initial Purchaser. The
Company and the Subsidiaries shall furnish to the Initial Purchaser such
conformed copies of such documents, opinions, certificates, letters,
schedules and instruments in such quantities as the Initial Purchaser shall
reasonably request.
8. OFFERING OF NOTES; RESTRICTIONS ON TRANSFER. The Initial
Purchaser agrees with the Company that (i) it has not and will not solicit
offers for, or offer or sell, the Notes by any form of general solicitation
or general advertising (as those terms are used in Regulation D under the
Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Act; and (ii) it has and will solicit offers for the
Notes only from, and will offer the Notes only to (A) in the case of offers
inside the United States, (x) persons whom the Initial Purchaser reasonably
believes to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to the Initial Purchaser that each such
account is a QIB, to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, and, in each case, in transactions under
Rule 144A or (y) a limited number of other institutional investors reasonably
believed by the Initial Purchaser to be Accredited Investors that, prior to
their purchase of the Notes, deliver to the Initial Purchaser a letter
containing the representations and agreements set
<PAGE>
forth in Appendix A to the Final Memorandum and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers," which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for foreign
beneficial owners (other than an estate or trust)); PROVIDED, HOWEVER, that,
in the case of this clause (B), in purchasing such Notes such persons are
deemed to have represented and agreed as provided under the caption "Transfer
Restrictions" contained in the Final Memorandum.
The Initial Purchaser represents and warrants that it is a
QIB, with such knowledge and experience in financial and business matters as
are necessary in order to evaluate the merits and risks of an investment in
the Notes. The Initial Purchaser agrees to comply with the applicable
provisions of Rule 144A and Regulation S under the Act. The Initial Purchaser
hereby acknowledges that the Company and, for purposes of the opinions to be
delivered to the Initial Purchaser pursuant to Section 7(a) hereof, counsel
to the Company will rely upon the accuracy and truth of the representations
contained in this Section 8 and the Initial Purchaser hereby consents to such
reliance.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Subsidiaries jointly and severally agree to indemnify and hold harmless the
Initial Purchaser and its respective affiliates, directors, officers, agents,
representatives general partners and employees of such Initial Purchaser or
its affiliates, and each other person, if any, who controls the Initial
Purchaser or its affiliates within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the full extent lawful against any losses,
claims, damages, expenses or liabilities (or action in respect thereof,
including, without, limitation, shareholder derivative actions and
arbitration proceedings) to which the Initial Purchaser or such other person
may become subject under the Act, the Exchange Act or otherwise, insofar as
any such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or supplement
thereto or any application or other document, or any amendment or supplement
thereto, executed by the Company or the Subsidiaries or based upon written
information furnished by or on behalf of the Company or the Subsidiaries
filed in any jurisdiction in order to qualify the Notes under the securities
or "Blue Sky" laws thereof or filed with any securities association or
securities exchange (each an "Application");
(ii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto or any Application, a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or
(iii) any breach of any of the representations and
warranties of the Company and the Subsidiaries set forth in this Agreement or
the Registration Rights Agreement,
and will reimburse, as incurred, the Initial Purchaser and each such other
person for any legal or other expenses incurred by the Initial Purchaser or
such other person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, the Company and the
Subsidiaries will not be liable in any such case to the extent that any such
loss, claim, damage, or liability
<PAGE>
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Memorandum or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information concerning the Initial Purchaser
furnished to the Company by the Initial Purchaser specifically for use
therein. This indemnity agreement will be in addition to any liabilities or
obligations that the Company and the Subsidiaries may otherwise have to the
indemnified parties, including without limitation the indemnification
obligations of the Company pursuant to the NatWest Engagement. The Company
and the Subsidiaries shall not be liable under this Section 9 for any
settlement of any claim or action effected without its prior consent, which
shall not be unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold
harmless the Company, their directors, their officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any Memorandum or any
amendment or supplement thereto or any Application, or (ii) the omission or
the alleged omission to state therein a material fact required to be stated
in any Memorandum or any amendment or supplement thereto or any Application,
or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information concerning the Initial Purchaser,
furnished to the Company or the Subsidiaries by the Initial Purchaser
specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses incurred by the Company, or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will
be in addition to any liability that the Initial Purchaser may otherwise have
to the indemnified parties. The Initial Purchaser shall not be liable under
this Section 9 for any settlement of any claim or action effected without
their written consent, which shall not be unreasonably withheld. The Company
and the Subsidiaries shall not, without the prior written consent of the
Initial Purchaser, effect any settlement or compromise of any pending or
threatened proceeding in respect of which the Initial Purchaser is or could
have been a party, or indemnity could have been sought hereunder by any
Initial Purchaser, unless such settlement (A) includes an unconditional
written release of the Initial Purchaser, in form and substance reasonably
satisfactory to the Initial Purchaser, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement
as to an admission of fault, culpability or failure to act by or on behalf of
the Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such
indemnified party is entitled to indemnification under this Section 9, such
indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 9, notify the indemnifying party of
the commencement thereof in writing; but the omission to so notify the
indemnifying party (i) will not relieve it from any liability under paragraph
(a) or (b) above unless and to the extent
<PAGE>
such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraphs (a) and (b) above. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have been advised by counsel that there may be one or
more legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, or
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after receipt by the indemnifying party of notice of
the institution of such action, then, in each such case, the indemnifying
party shall not have the right to direct the defense of such action on behalf
of such indemnified party or parties and such indemnified party or parties
shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed
to defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to
local counsel) in any one action or separate but substantially similar
actions in the same jurisdiction arising out of the same general allegations
or circumstances, designated by the Initial Purchaser in the case of
paragraph (a) of this Section 9 or either the Company or any of the
Subsidiaries in the case of paragraph (b) of this Section 9, representing the
indemnified parties under such paragraph (a) or paragraph (b), as the case
may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not
be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 9, in
which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to an
indemnified party in respect of any losses, claims, damages or liabilities
(or actions in respect thereof), each indemnifying party, in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits
<PAGE>
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault
of the indemnifying party or parties on the one hand and the indemnified
party on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received
by the Company on the one hand and the Initial Purchaser on the other shall
be deemed to be in the same proportion as the total proceeds from the
offering (net of commissions and before deducting expenses) received by the
Company and the Subsidiaries bear to the total discounts and commissions
received by the Initial Purchaser. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on the
one hand, or the Initial Purchaser on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or alleged statement or omission, and any
other equitable considerations appropriate in the circumstances. The Company
and the Initial Purchaser agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation or
by any other method of allocation that does not take into account the
equitable considerations referred to in the first sentence of this paragraph
(d). Notwithstanding any other provision of this paragraph (d), the Initial
Purchaser shall not be obligated to make contributions hereunder that in the
aggregate exceed the total discounts, commissions and other compensation
received by the Initial Purchaser under this Agreement, less the aggregate
amount of any damages that the Initial Purchaser has otherwise been required
to pay by reason of the untrue or alleged untrue statements or the omissions
or alleged omissions to state a material fact, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each
person, if any, who controls the Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchaser, and each director of the
Company, each officer of the Company and each person, if any, who controls
the Company or the Subsidiaries within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, shall have the same rights to contribution
as the Company.
10. SURVIVAL CLAUSE. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, their respective officers and the Initial Purchaser set forth in
this Agreement or made by or on behalf of them pursuant to this Agreement
shall remain in full force and effect, regardless of (i) any investigation
made by or on behalf of the Company, any of their respective officers or
directors, the Initial Purchaser or any other person referred to in Section 9
hereof and (ii) delivery of and payment for the Notes. The respective
agreements, covenants, indemnities and other statements set forth in Sections
6, 9 and 15 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. TERMINATION. (a) This Agreement may be terminated in the
sole discretion of the Initial Purchaser by notice to the Company given prior
to the Closing Date in the event that the Company shall have failed, refused
or been unable to perform all obligations and satisfy all
<PAGE>
conditions on their respective part to be performed or satisfied hereunder at
or prior thereto or, if at or prior to the Closing any of the following shall
have occurred:
(i) any of the Company or the Subsidiaries shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any strike, labor dispute, slow down or
work stoppage or any legal or governmental proceeding, which loss or
interference has had, has or could be reasonably likely to have a Material
Adverse Effect, or there shall have been, in the sole judgment of the Initial
Purchaser, any event or development that, individually or in the aggregate,
has or could be reasonably likely to have a Material Adverse Effect
(including without limitation a change in control of the Company or the
Subsidiaries), except in each case as described in the Final Memorandum
(exclusive of any amendment or supplement thereto);
(ii) there shall have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or
in the earnings, business or operations, of the Company and the Subsidiaries,
taken as a whole, from that set forth in the Final Memorandum that is
material and adverse and that makes it, in the Initial Purchaser's judgment,
impracticable to market the Notes on the terms and in the manner contemplated
in the Final Memorandum.
(iii) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of
Securities Dealers, Inc. or the setting of minimum prices for trading on such
exchange or market shall have occurred or trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market;
(iv) a banking moratorium shall have been declared by
New York or United States authorities;
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an outbreak
or escalation of any other insurrection or armed conflict involving the
United States, (C) any material change in the financial markets of the United
States or (D) any other national or international calamity or emergency
which, in the case of (A), (B), (C) or (D) above and in the sole judgment of
the Initial Purchaser, makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Notes as contemplated by the Final
Memorandum;
(vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs that has a
material adverse effect on the financial markets in the United States, and
would, in the sole judgment of the Initial Purchaser, make it impracticable
or inadvisable to market the Notes;
(vii) the proposal, enactment, publication, decree, or other
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which, in the sole judgment of the
Initial Purchaser, would have a Material Adverse Effect;
<PAGE>
(viii) any securities of the Company shall have been
downgraded or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization;
(ix) the Uniforce Tender Offer shall not have been
consummated within ten days of the date hereof;
(x) it shall have become impracticable, in the sole judgment
of the Initial Purchaser, for the Company to enter into the Heller Facility
on the terms described in the Final Memorandum; or
(xi) it shall have become impractical, in the sole judgment of
the Initial Purchaser, for the Company to consummate the offering of the
Units, on the terms described in the Final Memorandum.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided
in Sections 6 and 10 hereof.
12. INFORMATION SUPPLIED BY THE INITIAL PURCHASER. The
statements set forth in the last paragraph on the cover page of the Final
Memorandum, the sixth through ninth paragraphs under the heading "Note Plan
of Distribution" and the fifth through eighth paragraphs under the heading
"Units Plan of Distribution," in the Final Memorandum (to the extent any such
statements relate to the Initial Purchaser) constitute the only information
furnished by the Initial Purchaser to the Company for the purposes of
Sections 2(a) and 9 hereof.
13. NOTICES. All communications hereunder shall be in writing
and, if sent to the Initial Purchaser, shall be mailed or delivered to (i)
NatWest Capital Markets Limited, 135 Bishopgate, London, England, Attention:
Roger Hoit; with a copy to White & Case, 1155 Avenue of the Americas, New
York, NY 10036, Attention: Timothy B. Goodell, Esq.; if sent to the Company,
shall be mailed or delivered to the Company at 2001 Marcus Avenue, Lake
Success, New York 11042, Attention: Paul Grillo with a copy to Doepken,
Keevican & Weiss, 58th Floor, USX Tower, Pittsburgh, Pennsylvania 15219
Attention: David G. Edwards, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
and one business day after being timely delivered to a next-day air courier.
14. SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchaser, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such persons and for the benefit of no other person
except that (i) the indemnities of the Company and the Subsidiaries contained
in Section 9 of this Agreement shall also be for the benefit of any person or
persons who control the Initial Purchaser within the meaning of Section 15 of
the Act or Section 20 of
<PAGE>
the Exchange Act and (ii) the indemnities of the Initial Purchaser contained
in Section 9 of this Agreement shall also be for the benefit of the directors
of the Company and officers and any person or persons who control the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act. No purchaser of Notes from the Initial Purchaser will be deemed a
successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT
GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
<PAGE>
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between
the Company and the Initial Purchaser.
Very truly yours,
COMFORCE OPERATING, INC.
By
------------------------------
Name:
Title
<PAGE>
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
NATWEST CAPITAL MARKETS LIMITED
By:
------------------------------
Name:
Title:
<PAGE>
Schedule 1
Principal
Amount of
Initial Purchaser Notes
- ----------------- -----
NatWest Capital Markets Limited...................... $110,000,000
<PAGE>
Exhibit 99(b)(2)
$20,000,000
COMFORCE Corporation
20,000 Units Representing
$20,000,000 Principal Amount of 15%
Senior Secured PIK Debentures due 2009
with 8.45 Warrants, each to Purchase 1 Share of Common Stock
PURCHASE AGREEMENT
November 19, 1997
<PAGE>
COMFORCE CORPORATION
20,000 Units Representing
$20,000,000 Principal Amount of 15%
Senior Secured PIK Debentures due 2009
with 8.45 Warrants, each to Purchase 1 Share of Common Stock
PURCHASE AGREEMENT
November 19, 1997
Natwest Capital Markets Limited
135 Bishopsgate
London, EC2M 3XT
England
Ladies and Gentlemen:
COMFORCE Corporation, a Delaware corporation (the "Company"),
hereby confirms its agreement with you (the "Initial Purchaser"), as set forth
below.
1. The Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the Initial Purchaser 20,000 Units
(the "Units") representing $20,000,000 principal amount of 15% Senior Secured
PIK Debentures due 2009 (the "Debentures") with 8.45 Warrants (the "Warrants"),
each to purchase 1 share of common stock of the Company, par value $0.01 per
share (the "Common Stock"), to be issued upon exercise of the Warrants (the
"Warrant Shares") representing one percent of the outstanding Common Stock on a
fully diluted basis. The Units, the Debentures and the Warrants are referred to
herein collectively as the "Securities". The Units are to be issued under a Unit
Agreement (as defined below), the Debentures are to be issued under an indenture
(the "Indenture") to be dated as of November 26, 1997 by and among the Company
and Bank of New York, as trustee (the "Trustee"), and the Warrants are to be
issued under a Warrant Agreement (as defined below).
The Units will be offered and sold to the Initial Purchaser without being
registered under the Securities Act of 1933, as amended (the "Act"), in reliance
on exemptions therefrom.
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum dated November 1, 1997 (the "Preliminary
Memorandum") and will prepare a final offering memorandum dated November 19,
1997 (the "Final Memorandum"; the Preliminary Memorandum and the Final
Memorandum each herein being referred to as the "Memorandum") setting forth or
including a description of the terms of the Units, the Debentures, the Warrants
and the Warrant Shares, the terms of the offering of the
<PAGE>
Units, a description of the Company and any material developments relating to
the Company occurring after the date of the most recent historical financial
statements included therein.
The Company and the Initial Purchaser will enter into a Registration Rights
Agreement (the "Registration Rights Agreement") prior to or concurrently with
the issuance of the Debentures. Pursuant to the Registration Rights Agreement,
under the circumstances and the terms set forth therein, the Company will agree
to file with the Securities and Exchange Commission (the "Commission"): (i) a
registration statement on Form S-4 (the "Exchange Offer Registration Statement")
relating to a registered Exchange Offer (as defined in the Registration Rights
Agreement) for the Debentures under the Act to offer to the holders of the
Debentures the opportunity to exchange their Debentures for an issue of
debentures substantially identical to the Debentures (except that (a) interest
thereon will accrue from the last date on which interest was paid on the
Debentures, or if no such interest has been paid, from November 26, 1997, (b)
such Debentures will not contain restrictions on transfer, and (c) such
Debentures will not contain provisions relating to an increase in their interest
rate under certain circumstances) that would be registered under the Act (the
"Exchange Notes"); or (ii) alternatively, in the event that applicable
interpretations of the Commission do not permit the Company to effect the
Exchange Offer or do not permit any holder of the Debentures to participate in
the Exchange Offer, a shelf registration statement (the "Shelf Registration
Statement") to cover resales of Debentures by such holders who satisfy certain
conditions relating to, including the provision of information in connection
with the Shelf Registration Statement.
The Company also will enter into (i) a registration rights agreement with
respect to the Warrant Shares, whereby the Company will agree to file a shelf
registration statement covering resales of the Warrant Shares (the "Warrant
Registration Rights Agreement"), (ii) a Unit Agreement (the "Unit Agreement")
and (iii) a Warrant Agreement (the "Warrant Agreement"), in each case with The
Bank of New York, as Unit Agent (the "Unit Agent") and The Bank of New York, as
Warrant Agent (the "Warrant Agent"), as the case may be, prior to, or
concurrently with, the issuance of the Units.
2. Representations and Warranties. Each of the Company and the Subsidiaries
(as defined) represents and warrants to, and agrees with the Initial Purchaser
that:
(a) Neither the Preliminary Memorandum as of the date thereof nor the Final
Memorandum nor any amendment or supplement thereto as of the date thereof and at
all times subsequent thereto up to the Closing Date (as defined in Section 3
below) contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 2(a) do
not apply to statements or omissions made in reliance upon and in conformity
with information relating to the Initial Purchaser furnished to the Company in
writing by the Initial Purchaser expressly for use in the Preliminary
Memorandum, the Final Memorandum or any amendment or supplement thereto. The
Final Memorandum conforms in all material respects to the requirements of the
Act and the rules and regulations promulgated thereunder, as if it was a
prospectus filed as part of a registration statement on Form S-3 relating to the
Securities.
-2-
<PAGE>
(b) As of the Closing Date, the Company will have the capitalization set
forth in the Final Memorandum; all of the outstanding shares of capital stock of
the Company have been, and as of the Closing Date will be, duly authorized and
validly issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights; except as disclosed in the Final
Memorandum, there are no (i) options, warrants or other rights to purchase from
the Company, (ii) agreements or other obligations of the Company to issue or
(iii) other rights to convert any obligation into, or exchange any securities
for, shares of capital stock of or ownership interests in the Company
outstanding. The entities listed on Schedule 2 hereto are the only subsidiaries,
direct or indirect of the Company (collectively, the "Subsidiaries"). Except as
disclosed on Schedule 2 or as disclosed in the Final Memorandum, the Company
does not own, directly or indirectly, any capital stock or any other equity or
long-term debt securities or have any equity interest in any firm, partnership,
joint venture, limited liability company or other entity.
(c) The Company and each of the Subsidiaries has been duly incorporated, is
validly existing and is in good standing as a corporation under the laws of its
jurisdiction of incorporation, with all requisite corporate power and authority
to own its properties and conduct its business as now conducted, and as
described in the Final Memorandum; each of the Company and the Subsidiaries is
duly qualified to do business as a foreign corporation in good standing in all
other jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to
be so qualified would not, individually or in the aggregate, have a material
adverse effect on the general affairs, management, business, condition
(financial or otherwise), prospects or results of operations of the Company and
the Subsidiaries, taken as a whole (any such event, a "Material Adverse
Effect").
(d) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Debentures. The Debentures have
been duly and validly authorized by the Company and, when executed by the
Company and authenticated by the Trustee in accordance with the provisions of
the Indenture and, when delivered to the Initial Purchaser in accordance with
the terms of this Agreement, will have been duly executed, issued and delivered
and will constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(e) The Company has all requisite power and authority to execute, deliver
and perform its obligations under the Exchange Debentures and the Private
Exchange Debentures (as defined in the Registration Rights Agreement). The
Exchange Debentures and the Private Exchange Debentures have been duly and
validly authorized by the Company and, when the Exchange Debentures or the
Private Exchange Debentures have been duly executed and delivered by the Company
and authenticated by the Trustee in accordance with the terms of the
Registration Rights Agreement and the Indenture, will constitute valid and
legally binding
-3-
<PAGE>
obligations of the Company, entitled to the benefits of the Indenture, and will
be enforceable against the Company in accordance with their terms, except that
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of equity and the
discretion of any court before which any proceeding therefor may be brought.
(f) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Indenture. The Indenture meets the
requirements for qualification under the Trust Indenture Act of 1939, as amended
(the "TIA"). The Indenture has been duly and validly authorized by the Company
and, when executed and delivered by the Company (assuming the due authorization,
execution and delivery of the Indenture by the Trustee), will constitute a valid
and legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(g) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Registration Rights Agreement,
Warrant Registration Rights Agreement, the Unit Agreement and the Warrant
Agreement. Each of such agreements has been duly and validly authorized by the
Company and, when executed and delivered by the Company, will constitute a valid
and legally binding agreement of the Company enforceable against the Company in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(h) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Pledge Agreement, to be dated the
Closing Date, whereby the Company will pledge all of its Pledged Stock (as
defined in such agreement) to The Bank of New York, in its capacity as
collateral agent (the "Collateral Agent") for the benefit of the holders of the
Debentures (the "Pledge Agreement"). The Pledge Agreement has been duly and
validly authorized by the Company and, when the Pledge Agreement has been duly
executed and delivered by the Company will constitute a valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (ii) general principles of
equity and the discretion of any court before which any proceeding therefor may
be brought.
(i) The Units have been duly authorized by the Company and, when issued and
delivered by the Company against payment therefor by the Initial Purchaser in
accordance with the terms of this Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization or other similar
-4-
<PAGE>
laws now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(j) The Warrants have been duly authorized by the Company and, when issued
and delivered by the Company in accordance with the terms of this Agreement and
the Warrant Agreement, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization
or other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(k) The Warrant Shares have been duly and validly authorized and validly
reserved for issuance and when issued and paid for upon exercise of the Warrants
in accordance with the terms thereof, will be validly issued, fully paid,
nonassessable and free of preemptive rights.
(l) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
authorized and has been duly executed and delivered by the Company and (assuming
the due authorization, execution and delivery of this Agreement by the Initial
Purchaser) constitutes a valid legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement hereof may be subject to (i) bankruptcy, insolvency, reorganization
or other similar laws now or hereafter in effect relating the creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(m) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the performance of
this Agreement, the Registration Rights Agreement, the Warrant Registration
Rights Agreement, the Unit Agreement, the Warrant Agreement, the Pledge
Agreement and the Indenture by the Company or the consummation by the Company of
the transactions contemplated hereby and thereby that are to be completed on or
before the Closing Date, except such as have been obtained or disclosed in the
Final Memorandum and such as may be required under state securities or "Blue
Sky" laws in connection with the purchase and resale of the Units by the Initial
Purchaser. None of the Company or the Subsidiaries is (i) in violation of its
certificate of incorporation or bylaws (or similar organizational document),
(ii) in breach or violation of any statute, judgment, decree, order, rule or
regulation applicable to any of them or any of their respective properties or
assets, or (iii) in breach of or in default under (nor has any event occurred
which, with notice or passage of time or both, would constitute a default under)
or in violation of any of the terms or provisions of any indenture, mortgage,
deed of trust, loan agreement, note, lease, license, franchise agreement,
permit, certificate, contract or other agreement or instrument to which any of
them is a party or to which any of them or their respective properties or assets
is subject (collectively, "Contracts") except such violations, breaches or
defaults that would not, individually or in the aggregate, have a Material
Adverse Effect.
-5-
<PAGE>
(n) The execution, delivery and performance by the Company of this
Agreement, the Indenture, the Warrant Registration Rights Agreement, the Unit
Agreement, the Warrant Agreement, the Pledge Agreement and the Registration
Rights Agreement and the consummation by the Company of the transactions
contemplated hereby and thereby, and the fulfillment of the terms hereof and
thereof, and the retention by the Company of NatWest Capital Markets Limited
("NatWest") pursuant to those certain letter agreements (including the
engagement and indemnity letter agreements) dated as of ________, 1997
(collectively, the "NatWest Engagement Letter") and NatWest's acting as
contemplated hereby and thereby, will not conflict with or constitute or result
in a breach of or a default under (or an event which with notice or passage of
time or both would constitute a default under) or violation of any of (i) the
terms or provisions of any Contract except such conflicts, breaches, defaults or
violations, that would not, individually or in the aggregate, have a Material
Adverse Effect (ii) the certificate of incorporation or by-laws (or similar
organizational document) of the Company or any of the Subsidiaries, or (iii) any
statute, judgment, decree, order, rule or regulation applicable to the Company
or any of the Subsidiaries or any of their respective properties or assets
except such conflicts, breaches, defaults or violations that would not,
individually or in the aggregate, have a Material Adverse Effect.
(o) The audited consolidated financial statements of the Company, the
Subsidiaries and Uniforce Services, Inc. and its subsidiaries included in the
Preliminary Memorandum and the Final Memorandum present fairly in all material
respects the financial position, results of operations and cash flows of such
entities at the dates and for the periods to which they relate and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. The summary and selected
financial and statistical data in the Preliminary Memorandum and the Final
Memorandum present fairly in all material respects the information shown therein
and have been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated therein. Each
of Coopers & Lybrand LLP and KPMG Peat Marwick LLP is an independent public
accounting firm within the meaning of the Act and the rules and regulations
promulgated thereunder.
(p) Except as noted in the Memorandum, the pro forma financial information
included in the Preliminary Memorandum and the Final Memorandum (i) comply as to
form in all material respects with the applicable requirements of Regulation S-X
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (ii) have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, and (iii) have been
properly computed on the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma financial
information included in the Preliminary Memorandum and the Final Memorandum are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(q) There is not pending or, to the knowledge of the Company and the
Subsidiaries, threatened any action, suit, proceeding, inquiry or investigation
to which the Company or any of the Subsidiaries is a party, or to which the
property or assets of the Company
-6-
<PAGE>
or any of the Subsidiaries are subject, before or brought by any court,
arbitrator or governmental agency or body which, if determined adversely to the
Company or any of the Subsidiaries would, individually or in the aggregate, have
a Material Adverse Effect or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Units to be
sold hereunder or the consummation of the other transactions described in the
Preliminary Memorandum and the Final Memorandum.
(r) Each of the Company and the Subsidiaries owns or possesses adequate
licenses or other rights to use all material patents, trademarks, service marks,
trade names, copyrights and know-how necessary to conduct the businesses now or
proposed to be operated by it as described in the Preliminary Memorandum and the
Final Memorandum, and none of the Company or the Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such infringement of
or conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights or know-how which, if such
assertion of infringement or conflict were sustained, would, individually or in
the aggregate, have a Material Adverse Effect.
(s) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, presently required or necessary to own or lease, as
the case may be, and to operate its respective properties and to carry on its
respective businesses as now or proposed to be conducted as set forth in the
Preliminary Memorandum and the Final Memorandum (collectively, the "Permits"),
except where the failure to obtain such Permits would not, individually or in
the aggregate, have a Material Adverse Effect; each of the Company and the
Subsidiaries has fulfilled and performed all of its obligations with respect to
such Permits and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit except where
such revocation, termination or impairment would not, individually or in the
aggregate, have a Material Adverse Effect; and none of the Company or the
Subsidiaries has received any notice of any proceeding relating to revocation or
modification of any such Permit, except as described in the Final Memorandum and
except where such revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect.
(t) Since the date of the most recent financial statements appearing in the
Final Memorandum, except as described in the Final Memorandum, (i) none of the
Company or the Subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into or agreed to enter into any transactions or
Contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or Contracts could, individually or in
the aggregate, be material to the general affairs, management, business,
condition (financial or otherwise), prospects or results of operations of the
Company and the Subsidiaries, taken as a whole (a "Material Change"), (ii) none
of the Company or the Subsidiaries has purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock and (iii) other than as described in the Final
Memorandum, there
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shall not have been any change in the capital stock or long-term indebtedness of
the Company or the Subsidiaries which could, individually or in the aggregate,
constitute a Material Change.
(u) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and the
Subsidiaries, either individually or taken as a whole, from that set forth in
the Final Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(v) Each of the Company and the Subsidiaries has filed all necessary
federal, state, local and foreign income and franchise tax returns, and has paid
all taxes shown as due thereon; and, other than tax deficiencies which the
Company or any Subsidiary is contesting in good faith, and for which the Company
or such Subsidiary has provided adequate reserves, there is no tax deficiency
that has been asserted against the Company or any of the Subsidiaries.
(w) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which are reliable and accurate.
(x) None of the Company, the Subsidiaries or any agent acting on their
behalf has taken or will take any action that might cause this Agreement or the
sale of the Securities to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or as the
same may hereafter be in effect, on the Closing Date.
(y) Each of the Company and the Subsidiaries has good and marketable title
to all real property and good title to all personal property described in the
Preliminary Memorandum and the Final Memorandum as being owned by it and good
and marketable title to any leasehold estate in the real and personal property
described in the Preliminary Memorandum and the Final Memorandum as being leased
by it free and clear of all liens, charges, encumbrances or restrictions, except
as described in the Preliminary Memorandum and the Final Memorandum or to the
extent the failure to have such title or the existence of such liens, charges,
encumbrances or restrictions would not, individually or in the aggregate, have a
Material Adverse Effect. All Contracts to which the Company or any of the
Subsidiaries is a party or by which any of them is bound are valid and
enforceable against the Company or such Subsidiary, and are valid and
enforceable against the other party or parties thereto and are in full force and
effect with only such exceptions as would not, individually or in the aggregate,
have a Material Adverse Effect.
(z) There are no legal or governmental proceedings involving or affecting
the Company or any Subsidiary or any of their respective properties or assets
which would be required to be described in a prospectus pursuant to the Act that
are not described in the Preliminary Memorandum and the Final Memorandum, nor
are there any material contracts or other documents which would be required to
be described in a prospectus pursuant to the Act that are not described in the
Preliminary Memorandum and the Final Memorandum.
(aa) Except as would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect (A) each of the Company and the
Subsidiaries is in
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compliance with and not subject to liability under applicable Environmental Laws
(as defined below), (B) each of the Company and the Subsidiaries has made all
filings and provided all notices required under any applicable Environmental
Law, and has and is in compliance with all Permits required under any applicable
Environmental Laws and each of them is in full force and effect, (C) there is no
civil, criminal or administrative action, suit, demand, claim, hearing, notice
of violation, investigation, proceeding, notice or demand letter or request for
information pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened against the Company or any of the Subsidiaries under
any Environmental Law, (D) no lien, charge, encumbrance or restriction has been
recorded under any Environmental Law with respect to any assets, facility or
property owned, operated, leased or controlled by the Company or any of the
Subsidiaries, (E) none of the Company or the Subsidiaries has received notice
that it has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or any comparable state law, (F) no property or facility of
the Company or any of the Subsidiaries is (i) listed or proposed for listing on
the National Priorities List under CERCLA or is (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or on any comparable list maintained by any
state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the common law
and all applicable foreign and federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, law
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials, into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata),
(ii) the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials, and (iii)
underground and above ground storage tanks, and related piping, and emissions,
discharges, releases or threatened releases therefrom.
(bb) There is no strike, labor dispute, slowdown or work stoppage with the
employees of the Company or any of the Subsidiaries which is pending or, to the
knowledge of the Company or any of the Subsidiaries, threatened.
(cc) Each of the Company and the Subsidiaries carries insurance in such
amounts and covering such risks as is adequate for the conduct of its business
and the value of its properties. Neither the Company nor any of its Subsidiaries
has received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order
to continue such insurance.
(dd) None of the Company or the Subsidiaries has any material liability for
any prohibited transaction (within the meaning of Section 4975(c) of the Code or
Part 4 of Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) (or an accumulated funding deficiency within the meaning of
Section 412 of the Code or Section 302 of ERISA) or any complete or partial
withdrawal liability (within the meaning of Section 4201 of
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ERISA) with respect to any pension, profit sharing or other plan which is
subject to ERISA, to which the Company or any of the Subsidiaries makes or ever
has made a contribution and in which any employee of the Company or of any
Subsidiary is or has ever been a participant. With respect to such plans, the
Company and each Subsidiary is in compliance in all material respects with all
applicable provisions of ERISA.
(ee) Each of the Company and the Subsidiaries (i) makes and keeps accurate
books and records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(ff) None of the Company or the Subsidiaries will be an "investment
company" or "promoter" or "principal underwriter" for an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
(gg) The Debentures, the Exchange Debentures, the Indenture, the Warrant
Registration Rights Agreement, the Units, the Unit Agreement, the Warrant
Agreement, the Warrants, the Warrant Shares and the Registration Rights
Agreement will conform in all material respects to the descriptions thereof in
the Final Memorandum.
(hh) No holder of securities of the Company will be entitled to have such
securities registered under the registration statements required to be filed by
the Company pursuant to the Registration Rights Agreement or the Warrant
Registration Rights Agreement other than as expressly permitted thereby.
(ii) Immediately after the consummation of the transactions contemplated by
this Agreement, the fair value and present fair saleable value of the assets of
each of the Company and the Subsidiaries (each on a consolidated basis) will
exceed the sum of its stated liabilities and identified contingent liabilities;
none of the Company or the Subsidiaries (each on a consolidated basis) is, nor
will any of the Company or the Subsidiaries (each on a consolidated basis) be,
after giving effect to the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby, (a)
left with unreasonably small capital with which to carry on its business as it
is currently or proposed to be conducted, (b) unable to pay its debts
(contingent or otherwise) as they mature or otherwise become due or (c)
otherwise insolvent.
(jj) None of the Company, the Subsidiaries or any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any "security" (as defined in the
Act) which is or could be integrated with the sale of the Securities in a manner
that would require the registration under the Act of the Securities or (ii)
engaged in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the
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<PAGE>
Act) in connection with the offering of the Securities or in any manner
involving a public offering within the meaning of Section 4(2) of the Act. The
Company has not distributed and will not distribute any offering material in
connection with the offering of the Securities other than the Final Memorandum
and any Preliminary Memorandum. No securities of the same class as the
Securities have been issued and sold by the Company within the six-month period
immediately prior to the date hereof.
(kk) Assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 8 hereof, it is not necessary in connection with
the offer, sale and delivery of the Securities to the Initial Purchaser in the
manner contemplated by this Agreement to register any of the Securities under
the Act or to qualify the Indenture under the TIA.
(ll) No securities of the Company or any Subsidiary are of the same class
(within the meaning of Rule 144A as promulgated under the Act ("Rule 144A")) as
any of the Securities and listed on a national securities exchange registered
under Section 6 of the Exchange Act, or quoted in a U.S. automated inter-dealer
quotation system.
(mm) None of the Company or the Subsidiaries has taken, nor will any of
them take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the any of the Securities.
(nn) None of the Company or the Subsidiaries, or any person acting on any
of their behalf (other than the Initial Purchaser) has engaged in any directed
selling efforts (as that term is defined in Regulation S under the Act
("Regulation S")) with respect to the Securities; the Company and its respective
Affiliates and any person acting on any of their behalf (other than the Initial
Purchaser or any Affiliate of the Initial Purchaser) have complied with the
offering restrictions requirement of Regulation S.
(oo) Each of the Preliminary Memorandum and the Final Memorandum, as of its
respective date, contains all of the information that, if requested by a
prospective purchaser of the Notes, would be required to be provided to such
prospective purchaser to Rule 144A(d)(4) under the Act.
(pp) The Units, the Debentures and the Warrants satisfy the eligibility
requirements of Rule 144A(d)(3) under the Act.
(qq) Neither the Company nor any of its Subsidiaries nor, to the Company's
knowledge, 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 of funds to, or
received or retained any funds from, 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, (iii)
violated or is in violation of the Foreign Corrupt Practices Act of 1977, (iv)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment or (v) engaged in any transactions, maintained any bank account or
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<PAGE>
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.
(rr) Except as disclosed in any Memorandum, 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.
(ss) Neither the Company nor any affiliate of the Company does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Florida Statutes Section 517.075.
(tt) None of the Company or the Subsidiaries has engaged or retained any
person, other than NatWest as the Initial Purchaser, to act as a financial
advisor, underwriter or placement agent in connection with the issuance of the
Units and, except for the fees and expenses payable to Unterburg, Towbin, L.P.,
as the Company's financial advisor in connection with the Uniforce Acquisition
and fees and expenses payable in connection with the issuance of the Units as
described in the Final Memorandum, no person has the right to receive a material
amount of financial advisory, underwriting, placement, finder's or similar fees
in connection with, or as a result of, the issuance of the Units and the
purchase of the Units by the Initial Purchaser or the consummation of the other
transactions contemplated hereby.
(uu) Each of the Company and COMFORCE Columbus, Inc. has all requisite
corporate power and authority to execute, deliver and perform its obligations
under that certain Agreement and Plan of Merger dated as of August 13, 1997, by
and among COMFORCE Corporation, COMFORCE Columbus, Inc. and Uniforce Services,
Inc. (the "Merger Agreement"). The Merger Agreement has been duly and validly
authorized, executed and delivered by the Company and COMFORCE Columbus, Inc.
and constitutes a valid and legally binding agreement of each of the Company and
COMFORCE Columbus, Inc., enforceable against each of them in accordance with its
terms, except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) to general principles of equity
and the discretion of any court before which any proceeding therefor may be
brought.
(vv) On the Closing Date, the Company and COMFORCE Columbus, Inc. shall
have consummated its offer to purchase the Common Stock, par value $0.50 per
share of Uniforce Services, Inc. (the "Offer") pursuant to its tender offer
statement on Schedule 14D-1 as filed with the Commission on October 27, 1997 and
such offer, and the consummation thereof shall have complied in all material
respects with all applicable laws, including, without limitation, the Exchange
Act and the rules and regulations promulgated thereunder.
Any certificate signed by any officer of the Company or any Subsidiary and
delivered to the Initial Purchaser or to counsel for the Initial Purchaser shall
be deemed a joint and several representation and warranty by the Company and
each of the Subsidiaries to the Initial Purchaser as to the matters covered
thereby.
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<PAGE>
3. Purchase, Sale and Delivery of the Securities. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company the number of Units set forth opposite its name on
Schedule 1 hereto at a price of $960 per Unit. One or more certificates in
definitive form for the Units that the Initial Purchaser has agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchaser requests upon notice to the Company at least
36 hours prior to the Closing Date, shall be delivered by or on behalf of the
Company to the Initial Purchaser, against payment by or on behalf of the Initial
Purchaser of the purchase price therefor by wire transfer to such account or
accounts as the Company shall specify prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. Such delivery
of and payment for the Units shall be made at the offices of White & Case, 1155
Avenue of the Americas, New York, New York at 10:00 A.M., New York time, on
November 26, 1997, or at such other place, time or date as the Initial
Purchaser, on the one hand, and the Company, on the other hand, may agree upon,
such time and date of delivery against payment being herein referred to as the
"Closing Date." The Company will make such certificate or certificates for the
Units available for inspection and packaging by the Initial Purchaser at such
place as designated by the Initial Purchaser at least 24 hours prior to the
Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser proposes to
make an offering of the Units at the price and upon the terms set forth in the
Final Memorandum, as soon as practicable after this Agreement is entered into
and as in the judgment of the Initial Purchaser is advisable.
5. Covenants of the Company and the Subsidiaries. The Company covenants and
agrees with the Initial Purchaser that:
(a) The Company will not amend or supplement the Final Memorandum or any
amendment or supplement thereto unless the Initial Purchaser shall previously
have been advised and furnished a copy of such amendment or supplement for a
reasonable period of time prior to the proposed amendment or supplement and as
to which the Initial Purchaser shall have consented. The Company will promptly,
upon the reasonable request of the Initial Purchaser or counsel for the Initial
Purchaser, make any amendments or supplements to the Preliminary Memorandum or
the Final Memorandum that may be necessary or advisable in connection with the
resale of the Securities by the Initial Purchaser.
(b) The Company will cooperate with the Initial Purchaser in arranging for
the qualification of the Securities for offering and sale under the securities
or "Blue Sky" laws of which jurisdictions as the Initial Purchaser may designate
and will continue such qualifications in effect for as long as may be necessary
to complete the resale of the Securities; provided, however, that in connection
therewith, none of the Company or any Subsidiary shall be required to qualify as
a foreign corporation or to execute a general consent to service of process in
any jurisdiction or subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
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<PAGE>
(c) If, at any time prior to the completion of the distribution by the
Initial Purchaser of the Securities, any event occurs or information becomes
known as a result of which the Final Memorandum as then amended or supplemented
would, in the judgment of the Company or in the reasonable opinion of your
counsel include any untrue statement of a material fact, or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if for any other
reason it is necessary at any time to amend or supplement the Final Memorandum
to comply with applicable law, the Company will promptly notify the Initial
Purchaser thereof and will prepare, at the expense of the Company, an amendment
or supplement to the Final Memorandum that corrects such statement or omission
or effects such compliance.
(d) The Company will, without charge, provide to the Initial Purchaser and
to counsel for the Initial Purchaser as many copies of the Preliminary
Memorandum and the Final Memorandum or any amendment or supplement thereto as
the Initial Purchaser may reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities
as set forth under "Use of Proceeds" in the Final Memorandum.
(f) The Company will furnish to the Initial Purchaser copies of all reports
and other communications (financial or otherwise) furnished by the Company to
the Trustee, the holders of the Debentures, the Unit Agent, the Warrant Agent,
the holders of the Warrants or the holders of Warrant Shares and, as soon as
available, copies of any reports or financial statements furnished to or filed
by the Company with the Commission or any national securities exchange on which
any class of securities of the Company may be listed.
(g) Prior to the Closing Date, the Company and the Subsidiaries will
furnish to the Initial Purchaser, as soon as they have been prepared, a copy of
any unaudited interim financial statements of the Company and the Subsidiaries
for any period subsequent to the period covered by the most recent financial
statements appearing in the Final Memorandum.
(h) None of the Company, the Subsidiaries or any of their Affiliates will
sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any "security" (as defined in the Act) which could be integrated with the
sale of any of the Securities in a manner which would require the registration
under the Act of any of the Securities.
(i) None of the Company or the Subsidiaries will engage in any form of
"general solicitation" or "general advertising" (as those terms are used in
Regulation D under the Act) in connection with the offering of the Units or in
any manner involving a public offering of the Units within the meaning of
Section 4(2) of the Act.
(j) None of the Company, the Subsidiaries or their Affiliates nor any
person acting on its or their behalf will engage, in any directed selling
efforts (as that term is defined in Regulation S) with respect to the Units, and
will comply, and will have its Affiliates and each person acting on its or their
behalf comply, with the offering restrictions requirements of Regulation S.
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<PAGE>
(k) For so long as any of the Securities remain outstanding, the Company
and the Subsidiaries will make available, upon request, to any seller of such
Securities the information specified in Rule 144A(d)(4) under the Act, unless
the Company and the Subsidiaries are then subject to Section 13 or 15(d) of the
Exchange Act.
(l) For a period of 180 days from the date of the Final Memorandum, the
Company and the Subsidiaries will not offer for sale, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file a registration statement
for, or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than the Debentures, the Exchange Debentures or the Private
Exchange Debentures, the Notes, the Exchange Notes or the Private Exchange
Notes) without the prior written consent of the Initial Purchaser;
(m) During the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial Purchaser, the
Company and the Subsidiaries will not, and will not permit any of their
affiliates (as defined in Rule 144 under the Securities Act) to, resell any of
the Securities that have been reacquired by them, except for Securities
purchased by the Company or any of its affiliates and resold in a transaction
registered under the Securities Act;
(n) In connection with the offering of the Securities, until the Initial
Purchaser shall have notified the Company of the completion of the resale of the
Securities, the Company and the Subsidiaries will not, and will cause their
affiliated purchasers (as defined under the Exchange Act) not to, either alone
or with one or more other persons, bid for or purchase, for any account in which
it or any of its affiliated purchasers has a beneficial interest, any
Securities, or attempt to induce any person to purchase any Securities, and not
to, and to cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising the
price of the Securities;
(o) The Company and the Subsidiaries will not take any action prior to the
execution and delivery of the Indenture, the Warrant Agreement, the Pledge
Agreement or the Unit Agreement which, if taken after such execution and
delivery, would have violated any of the covenants contained in the Indenture,
the Warrant Agreement, the Pledge Agreement or the Unit Agreement;
(p) The Company and the Subsidiaries will not take any action prior to
Closing Date which would require the Final Memorandum to be amended or
supplemented pursuant to Section 5(c);
(q) Prior to the Closing Date, the Company and the Subsidiaries will not
issue any press release or other communication directly or indirectly or hold
any press conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except for
routine oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the Initial
Purchaser is notified), without the prior written consent of the Initial
Purchaser, unless in the judgment of
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the Company and its counsel, after notification to the Initial Purchasers, such
press release or communication is required by law; and
(r) The Company will use its best efforts to (i) permit the Units,
Debentures and Warrants to be designated PORTAL securities in accordance with
the rules and regulations adopted by the NASD relating to trading in the Private
Offerings, Resales and Trading through Automated Linkages market (the "Portal
Market") and (ii) permit the Units, Debentures and Warrants to be eligible for
clearance and settlement through the Depository Trust Company.
6. Expenses. The Company agrees to pay all costs and expenses incident to
the performance of their obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
the transactions contemplated hereby, including any costs of printing the
Preliminary Memorandum and the Final Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchaser of copies of the foregoing documents, (iii)
the fees and disbursements of counsel, accountants and any other experts or
advisors retained by the Company, (iv) preparation (including printing),
issuance and delivery to the Initial Purchaser of the Units, (v) the
qualification of the Securities under state securities and "Blue Sky" laws,
including filing fees and fees and disbursements of counsel for the Initial
Purchaser relating thereto, (vi) the Company's expenses in connection with any
meetings with prospective investors in the Securities, (vii) fees and expenses
of the Trustee, the Unit Agent, the Collateral Agent and the Warrant Agent
(including fees and expenses of counsel), (viii) all expenses and listing fees
incurred in connection with the application for quotation of any of the
Securities on the PORTAL Market, (ix) any fees charged by investment rating
agencies for the rating of the Debentures, and (x) all expenses incurred in
connection with the application for quotation of the Securities for book-entry
transfer by DTC. If the sale of the Units provided for herein is not consummated
because any condition to the obligations of the Initial Purchaser set forth in
Section 7 hereof is not satisfied, because this Agreement is terminated or
because of any failure, refusal or inability on the part of the Company to
perform all obligations and satisfy all conditions on their part to be performed
or satisfied hereunder (other than solely by reason of a default by the Initial
Purchaser of their obligations hereunder after all conditions hereunder have
been satisfied in accordance herewith), the Company agrees to promptly reimburse
the Initial Purchaser upon demand for all out-of-pocket expenses (including all
fees, disbursements and charges of White & Case, counsel for the Initial
Purchaser) that shall have been incurred by the Initial Purchaser in connection
with the proposed purchase and sale of the Units.
7. Conditions of the Initial Purchaser's Obligations. The obligation of the
Initial Purchaser to purchase and pay for the Units shall, in its sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received the
opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of
Doepken, Keevican &
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Weiss, counsel for the Company in form and substance satisfactory to counsel for
the Initial Purchaser, substantially to the effect that:
(i) Each of the Company and the material Subsidiaries is duly
incorporated, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation and has all requisite corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Final Memorandum. Each of the Company and
the material Subsidiaries is duly qualified as a foreign corporation and is
in good standing in the jurisdictions set forth below such Subsidiaries'
name on Schedule A attached to such opinion.
(ii) The Company has the authorized and issued capital stock set forth
in the Final Memorandum. To the knowledge of Doepken, Keevican & Weiss, the
Subsidiaries constitute all the subsidiaries of the Company and the Company
will own the percentage of the issued and outstanding stock (or other
equity securities of each of the Subsidiaries set forth on Schedule 2
hereto). All of the outstanding shares of capital stock of the Company and
the Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and were not issued in violation of any preemptive
or similar rights; all of the outstanding shares of capital stock of the
Subsidiaries are owned, directly or indirectly, by the Company, free and
clear of all security interests perfected, or otherwise, and free and clear
of all other liens, encumbrances, equities and claims or restrictions on
transferability or voting in each case other than a pledge of each of the
shares of each of the Subsidiaries of COMFORCE Operating, Inc. pursuant to
the provisions of the New Credit Facilty.
(iii) Except as set forth in the Final Memorandum, (A) to the
knowledge of such counsel no options, warrants or other rights to purchase
from the Company or any Subsidiary shares of capital stock or ownership
interests in the Company or any Subsidiary are outstanding, (B) no
agreements or other obligations of the Company or any Subsidiary to issue,
or other rights to cause the Company or any Subsidiary to convert, any
obligation into, or exchange any securities for, shares of capital stock or
ownership interests in the Company or any Subsidiary are outstanding and
(C) no holder of securities of the Company or any Subsidiary is entitled to
have such securities registered under a registration statement filed by the
Company and the Subsidiaries pursuant to the Registration Rights Agreement.
(iv) The Company has all requisite corporate power and authority to
execute, deliver and perform its respective obligations under this
Agreement, the Indenture, the Debentures, the Exchange Debentures and the
Private Exchange Debentures; the Indenture is in sufficient form for
qualification under the TIA; the Indenture has been duly and validly
authorized by the Company and, when duly executed and delivered by the
Company (assuming the due authorization, execution and delivery thereof by
the Trustee), will constitute the valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, or other
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similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought.
(v) The Global Debenture (as such term is defined in the Indenture)
is, and each other Debenture, when issued, will be, in the form
contemplated by the Indenture. The Global Debenture and each other
Debenture has been duly and validly authorized by the Company and when duly
executed and delivered by the Company and, in the case of the Global
Debenture, when paid for by the Initial Purchaser in accordance with the
terms of this Agreement (assuming the due authorization, execution and
delivery of the Indenture by the Trustee and due authentication and
delivery of the Debentures by the Trustee in accordance with the
Indenture), will constitute the valid and legally binding obligations of
the Company, entitled to the benefits of the Indenture, and enforceable
against the Company in accordance with their terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(vi) The Exchange Debentures and the Private Exchange Debentures have
been duly and validly authorized by the Company, and when the Exchange
Debentures and the Private Exchange Debentures have been duly executed and
delivered by the Company in accordance with the terms of the Registration
Rights Agreement and the Indenture (assuming the due authorization,
execution and delivery of the Indenture by the Trustee and due
authentication and delivery of the Exchange Debentures and the Private
Exchange Debentures by the Trustee in accordance with the Indenture), will
constitute the valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture, and enforceable against the
Company in accordance with their terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought.
(vii) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement, the Warrant Registration Rights Agreement, the Unit Agreement
and the Warrant Agreement. Each of such agreements has been duly and
validly authorized by the Company and, when duly executed and delivered by
the Company (assuming due authorization, execution and delivery thereof by
the Initial Purchaser), will constitute the valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought. No holder of securities of the
Company nor COMFORCE Operating, Inc., nor any of the Subsidiaries will be
entitled to have such
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securities registered under the registration statement required to be filed
pursuant to the Registration Rights Agreement.
(viii) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Pledge Agreement,
dated the Closing Date, whereby the Company pledges all of its Pledged
Stock to the Collateral Agent for the benefit of the holders of the
Debentures. The Pledge Agreement has been duly and validly authorized,
executed and delivered by the Company and will constitute a valid and
legally binding agreement of the Company, enforceable against it in
accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization or other similar laws
now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(ix) The Units have been duly authorized by the Company and, when
issued and delivered by the Company against payment therefor by the Initial
Purchasers in accordance with the terms of this Agreement will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except that the enforcement hereof
may be subject to (i) bankruptcy, insolvency, reorganization or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought.
(x) The Warrants have been duly authorized by the Company and, when
issued and delivered by the Company in accordance with the terms of this
Agreement, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except that the
enforcement hereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(xi) The Warrant Shares have been duly and validly authorized and
validly reserved for issuance, and when issued and paid for upon exercise
of the Warrants in accordance with the terms thereof, will be validly
issued, fully paid, nonassessable and free of preemptive rights.
(xii) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; this Agreement and the
consummation by the Company of the transactions contemplated hereby have
been duly and validly authorized by the Company. This Agreement has been
duly and validly authorized, duly executed and delivered by the Company and
(assuming the due authorization, execution and delivery of this Agreement
by the Initial Purchaser) constitutes a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except that the enforcement thereof may be subject to (i) bankruptcy
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insolvency, reorganization or other similar laws now or hereafter in effect
relating to creditors rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may be bought.
(xiii) The Indenture, the Debentures (when issued, authorized and
delivered), the Exchange Debentures (when issued, authorized and
delivered), the Private Exchange Debentures (if and when issued, authorized
and delivered), the Units, the Warrants, the Warrant Shares, the Unit
Agreement, the Registration Rights Agreement and the Warrant Registration
Rights Agreement conform (or will conform) in all material respects to the
descriptions thereof contained in the Final Memorandum and the Statements
in the Final Memorandum under "Description of Debentures", and "Debentures
Exchange Offer and Registration Rights" "Description of Units",
"Description of Warrants" and "Description of Capital Stock" insofar as
they describe the provisions of the documents and instruments therein
described, constitute fair summaries thereof in all material respects.
(xiv) No legal or governmental proceedings are pending or, to the
knowledge of such counsel, threatened to which any of the Company is a
party or to which the property or assets of the Company is subject before
or brought by any court, arbitrator or governmental agency or body which,
if determined adversely to the Company, would result, individually or in
the aggregate, in a Material Adverse Effect, or which seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge the issuance or
sale of the Securities to be sold hereunder or the consummation of the
other transactions described in the Final Memorandum.
(xv) None of the Company or any material Subsidiary is (i) in
violation of its certificate of incorporation or bylaws (or similar
organizational document) or (ii) to the knowledge of such counsel, in
breach or violation of any judgment, decree or order of any court,
arbitrator or governmental body, agency or authority applicable to any of
them or any of their respective properties or assets.
(xvi) The execution and delivery of this Agreement, the Indenture, the
Registration Rights Agreement, the Warrant Registration Rights Agreement,
the Unit Agreement, the Warrant Agreement, the Pledge Agreement and the
consummation of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Units to the
Initial Purchaser) will not conflict with or constitute or result in a
breach or a default under (or an event which with notice or passage of time
or both would constitute a default under) or violation of any of (i) the
terms or provisions of any Contract known to such counsel, (ii) the
certificate of incorporation or bylaws (or similar organizational document)
of the Company or any material Subsidiary, or (iii) (assuming compliance
with all applicable state securities or "Blue Sky" laws and assuming the
accuracy of the representations and warranties of the Initial Purchaser in
Section 8 hereof) any statute, judgment, decree, order, rule or regulation
which, in such counsel's experience, is normally applicable both to general
business corporations which are not engaged in regulated business
activities and to transactions of the type contemplated by the Final
Memorandum.
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<PAGE>
(xvii) No consent, approval, authorization or order of any
governmental authority is required for the issuance and sale by the Company
or any Subsidiary of the Units to the Initial Purchaser or the other
transactions contemplated hereby, except such as are disclosed in the Final
Memorandum or as may be required under Blue Sky laws, as to which such
counsel need express no opinion, and those which have previously been
obtained.
(xviii) There are no legal or governmental proceedings involving or
affecting the Company or the Subsidiaries or any of their respective
properties or assets which would be required to be described in a
prospectus pursuant to the Act that are not described in the Final
Memorandum nor are there any material contracts or other documents which
would be required to be described in a prospectus pursuant to the Act that
are not described in the Final Memorandum.
(xix) The Company and each of the Subsidiaries possesses all Permits
presently required or necessary to own or lease, as the case may be, and to
operate its respective properties and to carry on its respective businesses
as now or proposed to be conducted as described in the Preliminary
Memorandum and the Final Memorandum, except where the failure to obtain
such Permits would not, individually or in the aggregate, have a Material
Adverse Effect; each of the Company and the Subsidiaries, to the knowledge
of Doepken, Keevican & Weiss, has fulfilled and performed all of its
obligations with respect to such Permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit except where such revocation,
termination or impairment would not, individually or in the aggregate, have
a Material Adverse Effect; and, to the knowledge of Doepken, Keevican &
Weiss, none of the Company or the Subsidiaries has received any notice of
any proceeding relating to revocation or modification of any such Permit,
except as described in the Final Memorandum and except where such
revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect.
(xx) Based on lien searches performed with respect to the Company and
the subsidiaries, the real and personal property of the Company described
in the Preliminary Memorandum and the Final Memorandum is free and clear of
all liens, charges, encumbrances or restrictions, except as described in
the Preliminary Memorandum and the Final Memorandum or to the extent that
the failure to have such title or the existence of such liens, charges,
encumbrances or restrictions would not, individually or in the aggregate,
have a Material Adverse Effect.
(xxi) None of the Company or the Subsidiaries is, or immediately after
the sale of the Units to be sold hereunder and the application of the
proceeds from such sale (as described in the Final Memorandum under the
caption "Use of Proceeds") will be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
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<PAGE>
(xxii) The Units, the Debentures and the Warrants satisfy the
eligibility requirements of Rule 144A(d)(3) under the Act.
(xxiii) No registration under the Act of the Securities is required in
connection with the sale of the Securities to the Initial Purchaser as
contemplated by this Agreement and the Final Memorandum or in connection
with the initial resale of the Securities by the Initial Purchaser in
accordance with Section 8 of this Agreement, and prior to the commencement
of the Exchange Offer or the effectiveness of the Shelf Registration
Statement (as defined in the Registration Rights Agreement), the Indenture
is not required to be qualified under the TIA, in each case assuming (i)
that the purchasers who buy such Securities in the initial resale thereof
are qualified institutional buyers as defined in Rule 144A promulgated
under the Act ("QIBs") or accredited investors as defined in Rule 501(a)
(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"),
(ii) the accuracy of the Initial Purchaser's representations in Section 8
hereof and those of the Company contained in this Agreement regarding the
absence of a general solicitation in connection with the sale of such
Securities to the Initial Purchaser and the initial resale thereof and
(iii) the due performance by the Initial Purchaser of the agreements set
forth in Section 8 hereof.
(xxiv) Neither the consummation of the transactions contemplated by
this Agreement nor the sale, issuance, execution or delivery of the
Securities will violate Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System.
(xxv) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Merger Agreement.
The Merger Agreement has been duly and validly authorized, executed and
delivered by the Company and will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance with
its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(xxvi) Assuming (i) continued possession by the Collateral Agent of
certificates representing the Pledged Stock in the State of New York, (ii)
that the Collateral Agent has taken delivery of the Pledged Stock in good
faith and (iii) that neither the Collateral Agent nor the Initial Purchaser
has notice, prior to or on the date of the delivery of the Pledged Stock,
of an adverse claim within the meaning of the Uniform Commercial Code of
the State of New York (the "NY UCC"), the Pledge Agreement creates a
perfected security interest in the Pledged Stock in favor of the Collateral
Agent which security interest has priority over all other Liens, except
that priority may be subject to claims or liens in favor of the United
States of America, any State of the United States of America or any agency,
instrumentality or political subdivision of either of the foregoing.
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<PAGE>
At the time the foregoing opinion is delivered, Doepken, Keevican & Weiss
shall additionally state that it has participated in conferences with officers
and other representatives of the Company and the Subsidiaries, representatives
of the independent public accountants for the Company, representatives of the
Initial Purchaser and counsel for the Initial Purchaser, at which conferences
the contents of the Final Memorandum and related matters were discussed, and,
although it has not independently verified and is not passing upon and assumes
no responsibility for the accuracy, completeness or fairness of the statements
contained in the Final Memorandum, no facts have come to its attention which
lead it to believe that the Final Memorandum, on the date thereof or at the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements contained therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such firm need express no
opinion with respect to the financial statements and related notes thereto and
the other financial, statistical and accounting data included in the Final
Memorandum). In rendering such opinion, Doepken, Keevican & Weiss shall have
received and may rely upon such certificates and other documents and information
as it may reasonably request to pass on such matters. The opinion of Doepken,
Keevican & Weiss described in this Section shall be rendered to the Initial
Purchaser at the request of the Company and shall so state therein. If requested
by the Trustee, the Unit Agent, the Warrant Agent or the Collateral Agent,
Doepken, Keevican & Weiss shall allow any or all of such Persons to rely on its
opinion and shall expressly so state.
References to the Final Memorandum in this subsection (a) shall include any
amendment or supplement thereto prepared in accordance with the provisions of
this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchaser shall have received the
opinion, in form and substance satisfactory to the Initial Purchaser, dated as
of the Closing Date and addressed to the Initial Purchaser, of White & Case,
counsel for the Initial Purchaser, with respect to certain legal matters
relating to this Agreement and such other related matters as the Initial
Purchaser may reasonably require. In rendering such opinion, White & Case shall
have received and may rely upon such certificates and other documents and
information as it may reasonably request to pass upon such matters.
(c) On the Closing Date, the Initial Purchaser shall have received the
opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of
counsel to the Trustee, in form and substance satisfactory for counsel to the
Initial Purchaser, dated the Closing Date, substantially to the effect that:
(i) The Bank of New York is a trust company validly existing and in
good standing under the laws of the State of New York.
(ii) The Bank of New York has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly and validly authorized by The Bank
of New York and will constitute a valid and legally binding agreement of
The Bank of New York, enforceable against it in accordance
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with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws applicable to
trust companies established in the State of New York now or hereafter in
effect relating to creditors' rights generally and (ii) general principles
of equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The Units, the Debentures and the Warrants delivered to the
Initial Purchasers on the Closing Date have been duly authenticated by the
Trustee in accordance with the terms of the Indenture.
(iv) The execution, delivery and performance by the Trustee of the
Indenture does not and will not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or
the taking of any other action in respect of, any governmental authority or
agency regulating the banking and trust activities of the Trustee.
(d) The Initial Purchaser shall have received from each of Coopers &
Lybrand LLP, KPMG Peat Marwick LLP and Arthur Andersen LLP comfort letters dated
the date hereof and the Closing Date, in form and substance satisfactory to
counsel for the Initial Purchaser.
(e) On the Closing Date, the Initial Purchaser shall have received the
Indenture, the Pledge Agreement, the Unit Agreement, the Warrant Agreement and
the Warrant Registration Rights Agreement, duly authorized, executed and
delivered by each of the parties thereto, in form and substance satisfactory to
counsel for the Initial Purchaser, and containing such terms and conditions that
are usual and customary in transactions similar to those contemplated hereby and
thereby, dated the Closing Date and each such agreement shall be in full force
and effect according to its terms.
(f) The Initial Purchaser shall have received good standing certificates
for the Company and each of the Subsidiaries from their respective states of
incorporation and from each of the respective jurisdictions where each of them
is qualified to do business as a foreign corporation, in each case in form and
substance satisfactory to counsel for the Initial Purchaser.
(g) The representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date; the statements of
the Company's officers made pursuant to any certificate delivered in accordance
with the provisions hereof shall be true and correct on and as of the date made
and on and as of the Closing Date; the Company shall have performed all
covenants and agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date; and, except as
described in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), subsequent to the date of the most recent
financial statements in such Final Memorandum, there shall have been no event or
development that, individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect.
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(h) The sale of the Units, the Debentures and the Warrants hereunder shall
not be enjoined (temporarily or permanently) on the Closing Date.
(i) The Units, the Debentures and the Warrants shall have been approved by
the NASD for trading in the PORTAL Market.
(j) There shall not have occurred any invalidation of Rule 144A under the
Securities Act by any court or any withdrawal or proposed withdrawal of any rule
or regulation under the Securities Act or the Exchange Act by the Commission or
any amendment or proposed amendment thereof by the Commission which in the
judgment of the Initial Purchaser would materially impair the ability of the
Initial Purchaser to purchase, hold or effect resales of the Securities as
contemplated hereby.
(k) There shall not have occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, of the Company and the Subsidiaries, taken as
a whole, from that set forth in the Final Memorandum that constitutes a Material
Adverse Effect and that makes it, in the Initial Purchaser's judgment,
impracticable to market Units on the terms and in the manner contemplated in the
Final Memorandum.
(l) Subsequent to the date of the most recent financial statements in the
Final Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), the conduct of the business and operations of the Company shall
not have been interfered with by strike, fire, flood, hurricane, accident or
other calamity (whether or not insured) or by any court or governmental action,
order or decree, and, except as otherwise stated therein, the properties of the
Company shall not have sustained any loss or damage (whether or not insured) as
a result of any such occurrence, except any such interference, loss or damage
which would not, individually or in the aggregate, have a Material Adverse
Effect.
(m) No securities of the Company shall have been downgraded or placed on
any "watch list" for possible downgrading by any nationally recognized
statistical rating organization.
(n) The Initial Purchaser shall have received certificates of the Company,
dated the Closing Date, signed by their respective Chairman of the Board,
President or any Senior Vice President and the Chief Financial Officer, to the
effect that:
(i) The representations and warranties of the Company contained in
this Agreement are true and correct as of the date hereof and as of the
Closing Date, and the Company has performed all covenants and agreements
and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of
the most recent financial statements in the Final Memorandum (exclusive of
any amendment or supplement thereto after the date hereof), no event or
events have occurred, no
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information has become known nor does any condition exist that,
individually or in the aggregate, would have a Material Adverse Effect;
(iii) The sale of the Units hereunder has not been enjoined
(temporarily or permanently); and
(iv) such other information as the Initial Purchaser may reasonably
request.
(n) On the Closing Date, the Initial Purchaser shall have received all of
the certificates evidencing the Pledged Stock pledged under the Pledge
Agreement, together with executed and undated stock powers.
(o) COMFORCE Columbus, Inc.'s tender offer for any and all outstanding
shares of Uniforce Services, Inc. the ("Uniforce Tender Offer") shall have
expired without the waiver of any material condition to the consummation thereof
set forth in COMFORCE Columbus Inc.'s Offer to Purchase, as amended through the
date hereof, and COMFORCE Columbus, Inc. shall have accepted for payment an
amount of shares of the common stock of Uniforce Services, Inc. equal to no less
than two thirds of all such shares issued and outstanding.
(p) The Initial Purchaser shall have received a certificate from the
corporate secretary of the Company, dated the Closing Date, attaching certified
copies of (i) all resolutions of the Board of Directors of the Company
authorizing (a) the transactions contemplated by this Agreement and (b) the
Merger Agreement, including, without limitation, approving the offering of the
Securities, the entering into this Agreement, the Indenture and the Registration
Rights Agreement, (ii) the certificate of incorporation and by-laws of the
Company, (iii) the Merger Agreement, and (iv) certifying the names and true
signatures of those officers of the Company executing any documents contemplated
by this Agreement.
(q) The offering of 12% Senior Notes due 2007 of COMFORCE Operating, Inc.,
in the sole judgment of the Initial Purchaser, shall have been consummated as
described in the Final Memorandum.
(r) On or prior to the Closing Date, COMFORCE Operating, Inc. shall have
entered into a Credit Agreement, to be dated as of November 26, 1997, among
COMFORCE Operating, Inc.,, Heller Financial, Inc., and any other financial
institutions from time to time party thereto (the "Heller Facility") which, in
the sole judgment of the Initial Purchaser, shall have been entered into on
substantially the terms described in the Offering Memorandum.
On or before the Closing Date, the Initial Purchaser and counsel for the
Initial Purchaser shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and the Subsidiaries as
they shall have heretofore reasonably requested from the Company and the
Subsidiaries.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are
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reasonably satisfactory in all material respects to the Initial Purchaser and
counsel for the Initial Purchaser. The Company and the Subsidiaries shall
furnish to the Initial Purchaser such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchaser shall reasonably request.
8. Offering of Units; Restrictions on Transfer. The Initial Purchaser
agrees with the Company that (i) it has not and will not solicit offers for, or
offer or sell, the Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Act; (ii) it has and will solicit offers for the Securities only from, and will
offer the Securities only to (A) in the case of offers inside the United States,
(x) persons whom the Initial Purchaser reasonably believes to be QIBs or, if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
the Initial Purchaser that each such account is a QIB, to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A or (y) a limited number of other
institutional investors reasonably believed by the Initial Purchaser to be
Accredited Investors that, prior to their purchase of the Securities, deliver to
the Initial Purchaser a letter containing the representations and agreements set
forth in Appendix A to the Final Memorandum and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers," which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)); provided, however, that, in the case of
this clause (B), in purchasing such Securities such persons are deemed to have
represented and agreed as provided under the caption "Transfer Restrictions"
contained in the Final Memorandum.
The Initial Purchaser represents and warrants that it is a QIB, with such
knowledge and experience in financial and business matters as are necessary in
order to evaluate the merits and risks of an investment in the Units. The
Initial Purchaser agrees to comply with the applicable provisions of Rule 144A
and Regulation S under the Act. The Initial Purchaser hereby acknowledges that
the Company and, for purposes of the opinions to be delivered to the Initial
Purchaser pursuant to Section 7(a) hereof, counsel to the Company will rely upon
the accuracy and truth of the representations contained in this Section 8 and
the Initial Purchaser hereby consents to such reliance.
9. Indemnification and Contribution. (a) The Company and the Subsidiaries
jointly and severally agree to indemnify and hold harmless the Initial Purchaser
and its respective affiliates, directors, officers, agents, representatives
general partners and employees of such Initial Purchaser or its affiliates, and
each other person, if any, who controls the Initial Purchaser or its affiliates
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the full extent lawful against any losses, claims, damages, expenses or
liabilities (or action in respect thereof, including, without, limitation,
shareholder derivative actions and arbitration proceedings) to which the Initial
Purchaser or such other person may become subject under the Act, the Exchange
Act or otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
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(i) any untrue statement or alleged untrue statement of any material
fact contained in any Memorandum or any amendment or supplement thereto or
any application or other document, or any amendment or supplement thereto,
executed by the Company or the Subsidiaries or based upon written
information furnished by or on behalf of the Company or the Subsidiaries
filed in any jurisdiction in order to qualify the Securities under the
securities or "Blue Sky" laws thereof or filed with any securities
association or securities exchange (each an "Application");
(ii) the omission or alleged omission to state, in any Memorandum or
any amendment or supplement thereto or any Application, a material fact
required to be stated therein or necessary to make the statements therein
not misleading; or
(iii) any breach of any of the representations and warranties of the
Company and the Subsidiaries set forth in this Agreement or the
Registration Rights Agreement, and will reimburse, as incurred, the Initial
Purchaser and each such other person for any legal or other expenses
incurred by the Initial Purchaser or such other person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action;
provided, however, the Company and the Subsidiaries will not be liable in
any such case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Memorandum or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information concerning the Initial Purchaser
furnished to the Company by the Initial Purchaser specifically for use
therein. This indemnity agreement will be in addition to any liabilities or
obligations that the Company and the Subsidiaries may otherwise have to the
indemnified parties, including without limitation the indemnification
obligations of the Company pursuant to the NatWest Engagement. The Company
and the Subsidiaries shall not be liable under this Section 9 for any
settlement of any claim or action effected without its prior consent, which
shall not be unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company, their directors, their officers and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any Memorandum or any amendment or supplement thereto or any
Application, or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Memorandum or any amendment or
supplement thereto or any Application, or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
concerning the Initial Purchaser, furnished to the Company or the Subsidiaries
by the Initial Purchaser specifically for use therein; and subject to
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the limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Company, or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that the Initial Purchaser may
otherwise have to the indemnified parties. The Initial Purchaser shall not be
liable under this Section 9 for any settlement of any claim or action effected
without their written consent, which shall not be unreasonably withheld. The
Company and the Subsidiaries shall not, without the prior written consent of the
Initial Purchaser, effect any settlement or compromise of any pending or
threatened proceeding in respect of which the Initial Purchaser is or could have
been a party, or indemnity could have been sought hereunder by any Initial
Purchaser, unless such settlement (A) includes an unconditional written release
of the Initial Purchaser, in form and substance reasonably satisfactory to the
Initial Purchaser, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of the Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action for which such indemnified party is
entitled to indemnification under this Section 9, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 9, notify the indemnifying party of the commencement thereof in
writing; but the omission to so notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection
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with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Initial Purchaser
in the case of paragraph (a) of this Section 9 or either the Company or any of
the Subsidiaries in the case of paragraph (b) of this Section 9, representing
the indemnified parties under such paragraph (a) or paragraph (b), as the case
may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld), unless such
indemnified party waived in writing its rights under this Section 9, in which
case the indemnified party may effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 9 is unavailable to an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof), each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Units or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one hand and the Initial Purchaser on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of commissions and
before deducting expenses) received by the Company and the Subsidiaries bear to
the total discounts and commissions received by the Initial Purchaser. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand, or the Initial Purchaser on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission or alleged statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Initial Purchaser agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this paragraph (d), the
Initial Purchaser shall not be obligated to make contributions hereunder that in
the aggregate exceed the total discounts, commissions and other compensation
received by the Initial Purchaser under this Agreement, less the aggregate
amount
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<PAGE>
of any damages that the Initial Purchaser has otherwise been required to pay by
reason of the untrue or alleged untrue statements or the omissions or alleged
omissions to state a material fact, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchaser, and each director of the Company, each officer of the Company
and each person, if any, who controls the Company or the Subsidiaries within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Company.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, their
respective officers and the Initial Purchaser set forth in this Agreement or
made by or on behalf of them pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company, any of their respective officers or directors, the Initial
Purchaser or any other person referred to in Section 9 hereof and (ii) delivery
of and payment for the Units. The respective agreements, covenants, indemnities
and other statements set forth in Sections 6, 9 and 15 hereof shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchaser by notice to the Company given prior to the
Closing Date in the event that the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on their respective
part to be performed or satisfied hereunder at or prior thereto or, if at or
prior to the Closing any of the following shall have occurred:
(i) any of the Company or the Subsidiaries shall have sustained any
loss or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, labor dispute, slow down or work stoppage
or any legal or governmental proceeding, which loss or interference has
had, has or could be reasonably likely to have a Material Adverse Effect,
or there shall have been, in the sole judgment of the Initial Purchaser,
any event or development that, individually or in the aggregate, has or
could be reasonably likely to have a Material Adverse Effect (including
without limitation a change in control of the Company or the Subsidiaries),
except in each case as described in the Final Memorandum (exclusive of any
amendment or supplement thereto);
(ii) there shall have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and the
Subsidiaries, taken as a whole, from that set forth in the Final Memorandum
that is material and adverse and that makes it, in the Initial Purchaser's
judgment, impracticable to market the Units on the terms and in the manner
contemplated in the Final Memorandum.
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<PAGE>
(iii) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange,
the American Stock Exchange or the National Association of Securities
Dealers, Inc. or the setting of minimum prices for trading on such exchange
or market shall have occurred or trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter
market;
(iv) a banking moratorium shall have been declared by New York or
United States authorities;
(v) there shall have been (A) an outbreak or escalation of hostilities
between the United States and any foreign power, or (B) an outbreak or
escalation of any other insurrection or armed conflict involving the United
States, (C) any material change in the financial markets of the United
States or (D) any other national or international calamity or emergency
which, in the case of (A), (B), (C) or (D) above and in the sole judgment
of the Initial Purchaser, makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Units as contemplated by
the Final Memorandum;
(vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs that in
has a material adverse effect on the financial markets in the United
States, and would, in the sole judgment of the Initial Purchaser, make it
impracticable or inadvisable to market the Units;
(vii) the proposal, enactment, publication, decree, or other
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which, in the sole judgment of
the Initial Purchaser, would have a Material Adverse Effect;
(viii) any securities of the Company shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(ix) the Uniforce Tender Offer shall not have been consummated within
ten days of the date hereof.
(x) it shall have become impracticable, in the sole judgment of the
Initial Purchaser, to consummate the offering of 12% Senior Notes due 2007,
as described in the Final Memorandum.
(xi) it shall have become impracticable, in the sole judgment of the
Initial Purchaser, for COMFORCE Operating, Inc. to enter into the Heller
Facility described in the Final Memorandum.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Sections
6 and 10 hereof.
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12. Information Supplied by the Initial Purchaser. The statements set forth
in the last paragraph on the cover page of the Final Memorandum, the sixth
through ninth paragraphs under the heading "Note Plan of Distribution" and the
fifth through eighth paragraphs under the heading "Units Plan of Distribution,"
in the Final Memorandum (to the extent any such statements relate to the Initial
Purchaser) constitute the only information furnished by the Initial Purchaser to
the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and, if sent
to the Initial Purchaser, shall be mailed or delivered to (i) NatWest Capital
Markets Limited, 135 Bishopgate, London, England, Attention: Roger Hoit; with a
copy to White & Case, 1155 Avenue of the Americas, New York, NY 10036,
Attention: Timothy B. Goodell, Esq.; if sent to the Company, shall be mailed or
delivered to the Company at 2001 Marcus Avenue, Lake Success, New York 11042,
Attention: Paul Grillo with a copy to Doepken, Keevican & Weiss, 58th Floor, USX
Tower, Pittsburgh, Pennsylvania 15219 Attention: David G. Edwards, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; and one business day
after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be binding
upon the Initial Purchaser, the Company and their respective successors and
legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (i) the indemnities of the
Company and the Subsidiaries contained in Section 9 of this Agreement shall also
be for the benefit of any person or persons who control the Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Initial Purchaser contained in Section 9 of this
Agreement shall also be for the benefit of the directors of the Company and
officers and any person or persons who control the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of Units,
Debentures or Warrants from the Initial Purchaser will be deemed a successor
because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS
THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and the
Initial Purchaser.
Very truly yours,
COMFORCE CORPORATION
By_________________________
Name:
Title
<PAGE>
The foregoing Agreement is
hereby confirmed and accepted
as of the date first
above written.
NATWEST CAPITAL MARKETS LIMITED
By:_________________________
Name:
Title:
<PAGE>
Schedule 1
Page 1
Initial Purchaser Number of Units
- ----------------- ---------------
NatWest Capital Markets Limited.................................. 20,000
<PAGE>
Schedule 2
Subsidiaries
