As filed with the Securities and Exchange Commission, via EDGAR
on June 6, 1997
Registration No. 333-23753
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
PRE-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
RCM TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Nevada 7363 95-1480559
------ -------- ----------
<S> <C> <C>
(State or other jurisdiction of (Primary Standard Classification Code (I.R.S. Employer Identification No.)
incorporation or organization) Number)
2500 McClellan Avenue
Suite 350
Pennsauken, New Jersey 08109-4613
</TABLE>
---------------------------------------------------------------
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive
office and principal place of business)
Mr. Leon Kopyt
2500 McClellan Avenue
Suite 350
Pennsauken, New Jersey 08109-4613
(609) 486-1777
---------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with a copy to:
<TABLE>
<S> <C>
Stephen M. Cohen, Esquire Mark K. Kessler, Esquire
Buchanan Ingersoll Professional Corporation Wolf, Block, Schorr and Solis-Cohen
Eleven Penn Center, 14th Floor Twelfth Floor Packard Building
1835 Market Street S.E. Corner 15th & Chestnut Streets
Philadelphia, PA 19103 Philadelphia, PA 19102
(215) 665-3873 (215) 977-2576
</TABLE>
--------------------
Approximate date of proposed sale to the public: As soon as practicable
following effectiveness of this Registration Statement.
--------------------
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box: [ ]
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement in the same offering: [ ] ____________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering: [ ] ____________________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box: [ ]
------------------------------------------------
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
RCM TECHNOLOGIES, INC.
----------------------
CROSS REFERENCE SHEET
---------------------
<TABLE>
<CAPTION>
Registration Statement Item Number and Caption Location in Prospectus or Page
- ---------------------------------------------- ------------------------------
<S> <C> <C>
1. Forepart of the Registration Statement and Outside Front Cover Forepart of the Registration Statement; Outside
Page of Prospectus................................................ Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of Prospectus.......... Inside Front and Outside Back Cover Pages of
Prospectus
3. Summary Information, Risk Factors and Ratio of Earnings to Fixed Prospectus Summary; Risk Factors; Summary
Charges........................................................... Financial Information
4. Use of Proceeds.................................................. Prospectus Summary; Use of Proceeds
5. Determination of Offering Price.................................. Cover Page of Prospectus; Underwriting
6. Dilution......................................................... Not Applicable
7. Selling Security Holders......................................... Principal and Selling Stockholders
8. Plan of Distribution............................................. Cover Page of Prospectus; Underwriting; Risk
Factors
9. Description of Securities to be Registered....................... Outside Front Cover Page of Prospectus;
Prospectus Summary; Description of Securities;
Underwriting
10. Interest of Named Experts and Counsel............................ Legal Matters; Experts
11. Description of Business.......................................... Business
12. Description of Property.......................................... Business
13. Legal Proceedings................................................ Business
14. Certain Market Information....................................... Price Range of Common Stock and Dividend
Policy; Description of Securities
15. Financial Statements............................................. Financial Statements
16. Selected Financial Data.......................................... Selected Financial Data
17. Supplementary Financial Data..................................... Not Applicable
18. Management's Discussion and Analysis of Financial Condition and Management's Discussion and Analysis of
Results of Operations............................................. Financial Condition and Results of Operations
19. Disagreements with Accountants................................... Not Applicable
20. Directors and Executive Officers................................. Management
21. Executive Compensation........................................... Management
22. Security Ownership of Certain Beneficial Owners and Management... Principal and Selling Stockholders
23. Certain Relationships and Related Transactions................... Certain Relationships and Related Transactions
24. Statement as to Indemnification.................................. Part II; Item 14 - Indemnification of Directors
and Officers
</TABLE>
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
Financial Statement Schedules
Page
Reference
---------
I. Condensed Financial Information of the Company..................... F-26
II. Valuation and Qualifying Accounts and Reserves..................... F-29
Exhibits
(1) Form of Underwriting Agreement. Previously filed.
(3)(a) Articles of Incorporation, as amended, incorporated by reference
to Exhibit 3(a) of the Registrant's Form 10-K dated October 31,
1994, filed with the Commission on January 4, 1995 (Commission
File No. 1-10245).
(3)(b) Bylaws, as amended on February 22, 1996; incorporated by
reference to Exhibit 3 of the Quarterly Report on Form 10-Q
dated January 31, 1996.
(4)(a) Warrant Agreement dated September 1, 1989, with respect to
Class C Warrants between the Registrant and American Stock
Transfer and Trust Company; incorporated by reference to Exhibit
4 (b) of the Registrant's Form S-1 Registration Statement dated
July 25, 1989, as amended August 16, 1989 and May 14, 1990
(Commission File No. 33-30109).
(4)(b) Rights Agreement dated as of March 14, 1996, between RCM
Technologies, Inc. and American Stock Transfer & Trust Company,
as Rights Agent; incorporated by reference to Exhibit 4 of the
Registrant's Current Report on Form 8-K dated March 19, 1996.
(5)(a) Opinion of Buchanan Ingersoll Professional Corporation.
Filed herewith.
(5)(b) Opinion of Schreck Morris. Filed herewith.
(10)(a) Amended and Restated Loan and Security Agreement dated August
30, 1995 as amended on December 19, 1996 between, the
Registrant, Intertec Design, Inc., Cataract, Inc., The
Consortium and The Consortium of Maryland, Inc. and Mellon Bank,
N.A.; incorporated by reference to Exhibit (10)(a) of the Annual
Report on Form 10-K dated October 31, 1996 ("1996 10-K").
(10)(b) RCM Technologies, Inc. 1986 Incentive Stock Option Plan;
incorporated by reference to Exhibit 10(d) of the Registrant's
Annual Report on Form 10-K dated October 31, 1986, filed
with the Commission on February 13, 1987 (Commission
File No. 1-10245).
II-4
<PAGE>
(10)(c) RCM Technologies, Inc. 1992 Incentive Stock Option Plan;
incorporated by reference to Exhibit A of the Registrant's Proxy
Statement dated April 23, 1992, filed with the Commission on
March 9, 1992 (Commission File No. 1-10245).
(10)(d) RCM Technologies, Inc. 1994 Non-employee Director Stock Option
Plan; incorporated by reference to Exhibit A of the Registrant's
Proxy Statement dated May 19, 1994, filed with the Commission on
June 22, 1994 (Commission File No. 33-80590).
(10)(e) RCM Technologies, Inc. 1996 Executive Stock Option Plan dated
August 15, 1996; incorporated by reference to Exhibit (10)(l) of
the 1996 10-K.
(10)(f) Stock Option Agreement dated November 30, 1996 between the
Registrant and Leon Kopyt; incorporated by reference to Exhibit
(10)(m) of the 1996 10-K.
(10)(g) Second Amended and restated Termination Benefits Agreement
dated March 18, 1997 between the Registrant and Leon Kopyt.
Previously filed.
(10)(h) Amended and restated Employment Agreement dated November 30,
1996 between the Registrant, Intertec Design, Inc. and Leon
Kopyt; incorporated by reference to Exhibit (10)(g) of the 1996
10-K.
(10)(i) Merger Agreement among RCM Technologies, Inc., CI Acquisition
Corp. and Cataract, Inc. dated July 31, 1995; incorporated by
reference to Exhibit (c)(1) of the Registrant's Current Report
on Form 8-K dated August 30, 1995 ("Cataract 8-K").
(10)(j) Registration Rights Agreement dated August 30, 1995;
incorporated by reference to Exhibit (c)(2) of the Cataract 8-K.
(10)(k) Voting Trust Agreement dated August 30, 1995; incorporated by
reference to Exhibit (c)(3) of the Cataract 8-K.
(10)(l) Stock Pledge Agreement dated August 30, 1995; incorporated by
reference to Exhibit (c)(5) of the Cataract 8-K.
(10)(m) Stock Purchase Agreement among RCM Technologies, Inc., The
Consortium and The Shareholders of The Consortium dated as of
March 1, 1996; incorporated by reference to Exhibit (c)(1) of
the Registrant's Current Report on Form 8-K dated March 19, 1996
("Consortium 8-K").
(10)(n) Registration Rights Agreement dated March 11, 1996; incorporated
by reference to Exhibit (c)(2) of the Consortium 8-K.
(10)(o) Escrow Agreement dated March 11, 1996; incorporated by reference
to Exhibit (c)(3) of the Consortium 8-K.
II-5
<PAGE>
(10)(p) Standstill and Shareholders Agreement dated March 11, 1996;
incorporated by reference to Exhibit (c)(5) of the Consortium
8-K.
(10)(q) Blaire Employment Agreement dated March 11, 1996; incorporated
by reference to Exhibit (c)(6) of the Consortium 8-K.
(10)(r) Meyers Employment Agreement dated March 11, 1996; incorporated
by reference to Exhibit (c)(7) of the Consortium 8-K.
(10)(s) Subscription Agreement dated January 12, 1996; incorporated by
reference to Exhibit (a)(10) of the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended January 31,
1996 ("January 10-Q").
(10)(t) Registration Rights Agreement dated February 5, 1996;
incorporated by reference to Exhibit (a)(10.1) of the January
10-Q.
(10)(u) Merger Agreement among RCM Technologies, Inc., Sort Acquisition
Corp., the Consortium of Maryland, Inc. and Peter Kaminsky dated
April 23, 1996; incorporated by reference to Exhibit (2) of the
Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended April 30, 1996 ("April 10-Q").
(10)(v) Registration Rights Agreement dated May 2, 1996; incorporated
by reference to Exhibit (10.1) of the April 10-Q.
(10)(w) Escrow Agreement dated May 2, 1996; incorporated by reference
to Exhibit (10.2) of the April 10-Q.
(10)(x) Standstill and Shareholders Agreement dated May 2, 1996;
incorporated by reference to Exhibit (10.3) of the April 10-Q.
(10)(y) Kaminsky Employment Agreement dated May 2, 1996; incorporated
by reference to Exhibit (10.4) of the April 10-Q.
(10)(z) Form of Custody Agreement and Power of Attorney. Filed herewith.
(11) Computation of Earnings Per Share. Included within the Financial
Statements.
(21) Subsidiaries of the Registrant; incorporated by reference to
Exhibit 11 of the 1996 10-K.
(23)(a) Consent of Independent Certified Public Accountants. Filed
herewith.
(23)(b) Consent of Buchanan Ingersoll Professional Corporation. Included
within Exhibit 5(a) hereto.
(23)(c) Consent of Schreck Morris. Included within Exhibit 5(b) hereto.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused Amendment No. 3 to this Registration Statement to be
signed on its behalf by the undersigned, hereunto duly authorized in the City of
Pennsauken, New Jersey on June 4, 1997.
RCM TECHNOLOGIES, INC.
By: /s/ Leon Kopyt
-----------------------------------
Leon Kopyt
President and Chief Executive
Officer
By: /s/ Stanton Remer
-----------------------------------
Stanton Remer
Treasurer, Secretary and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Leon Kopyt Chairman, Chief Executive June 4, 1997
- ------------------------------------- Officer, President and
Leon Kopyt Director (principal executive
officer)
* Chief Operating Officer, June 4, 1997
- ------------------------------------- Executive Vice President and
Barry S. Meyers Director
* Executive Vice President and June 4, 1997
- ------------------------------------- Director
Martin Blaire
* Chief Financial Officer, June 4, 1997
- ------------------------------------- Treasurer, Secretary and
Stanton Remer Director (principal financial
and accounting officer)
* Director June 4, 1997
- -------------------------------------
Norman S. Berson
* Director June 4, 1997
- -------------------------------------
Robert B. Kerr
* Director June 4, 1997
- -------------------------------------
Woodrow B. Moats, Jr.
</TABLE>
* Power of Attorney previously filed under the Registration Statement on Form
S-1 filed March 21, 1997.
/s/ Leon Kopyt
- -------------------------
Leon Kopyt
Attorney-in-fact
June 5, 1997
RCM Technologies, Inc.
2500 McClellan Avenue
Suite 350
Pennsauken, New Jersey 08109
Gentlemen:
In connection with the Registration Statement on Form S-1, as amended
(Registration No. 333-23753) (the "Registration Statement"), filed by RCM
Technologies, Inc. (the "Company") under the Securities Act of 1933, as amended,
relating to the public offering of an aggregate of up to 2,875,000 shares of the
Company's Common Stock, par value $.05 per share, of which (a) 2,323,187 shares
will be purchased by the underwriters from the Company; (b) 176,813 shares will
be purchased by the underwriters from the existing securityholders of the
Company (the "Selling Stockholders"); and (c) up to 375,000 shares may be
purchased by the underwriters from the Company if the underwriters exercise the
option granted to them by the Company to cover over-allotments (collectively,
the "Shares"), we, as counsel for the Company, have examined such corporate
records, other documents, and questions of law as we have considered necessary
or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that in our opinion:
(i) the Shares to be issued and sold by the Company have been duly and
validly authorized and, when sold in the manner contemplated by the underwriting
agreement (the "Underwriting Agreement") filed as an exhibit to the Registration
Statement and upon receipt by the Company of payment therefor as provided in the
Underwriting Agreement, will be legally issued, fully paid and non-assessable;
and
(ii) the Shares to be sold by the Selling Stockholders were, when
issued, duly and validly authorized, legally issued, fully paid and
non-assessable.
<PAGE>
As to all matters governed by Nevada law, we have relied exclusively
upon the opinion of Schreck, Morris, Las Vegas, Nevada, the form of which is
also filed as an exhibit to the Registration Statement. We consent to the filing
of this opinion as an exhibit to the Registration Statement and the reference to
this firm under the caption "Legal Matters" in the Prospectus contained therein.
Very truly yours,
BUCHANAN INGERSOLL PROFESSIONAL
CORPORATION
By: /s/ Stephen M. Cohen
--------------------------
Stephen M. Cohen
SMC:ps
June 5, 1997
RCM Technologies, Inc.
2500 McClellan Avenue
Suite 350
Pennsauken, NJ 08109
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-1, as amended
(Registration No. 333-23753)(the "Registration Statement"), filed by RCM
Technologies, Inc., a Nevada corporation (the "Company") under the Securities
Act of 1933, as amended (the "Act"), relating to the public offering of an
aggregate of up to 2,875,000 shares of the Company's Common Stock, par value
$.05 per share, of which (a) 2,323,187 shares will be purchased by the
underwriters from the Company, (b) 176,813 shares will be purchased by the
underwriters from the existing securityholders of the Company (the "Selling
Stockholders"); and (c) up to 375,000 shares may be purchased by the
underwriters from the Company if the underwriters exercise the option granted to
them by the Company to cover over-allotments (collectively, the "Shares"), we,
as special Nevada counsel for Company, have examined such corporate records,
other documents and questions of law, and have obtained and relied upon such
certificates, representations and assurances from the Company and public
officials, as we have considered necessary or appropriate for the purposes of
this opinion.
Without limiting the generality of the foregoing, in our examination,
we have assumed without independent verification, that (i) each natural person
executing a document we examined is legally competent to do so, (ii) all
documents submitted to us as originals are authentic, the signatures on all
documents that we examined are genuine, and all documents submitted to us as
certified, conformed, photostatic or facsimile copies conform to the original
document, and (iii) all corporate records made available to us by the Company
and all public records reviewed are accurate and complete.
Based upon the foregoing, and having regard to legal considerations and
other information that we deem relevant, we are of the opinion that:
(i) the Shares to be issued and sold by the Company have been duly
authorized and, when issued and sold in the manner contemplated by the
underwriting agreement by and among the Company and the underwriters named
therein filed as an exhibit to the Registration Statement (the "Underwriting
Agreement"), and upon receipt by the Company of payment therefor as provided in
the Underwriting Agreement, will be validly issued, fully paid and
non-assessable; and
(ii) the Shares to be sold by the Selling Stockholders were, when
issued, duly authorized, validly issued, fully paid and non-assessable.
We are qualified to practice law in the State of Nevada. The opinions
set forth herein are expressly limited to the laws of the State of Nevada and we
do not purport to be experts on, or to express any opinion herein concerning, or
to assume any responsibility as to the applicability to or the effect on any of
the matters covered herein of, the laws of any other jurisdiction. We express no
opinion concerning, and we assume no responsibility as to laws or judicial
decisions related to, any federal law, including any federal securities law, or
any state securities or Blue Sky laws.
We hereby consent to this filing of this opinion as an exhibit to the
Registration Statement and the reference to this firm under the caption "Legal
Matters" in the Prospectus contained therein. In giving this consent, we do not
admit that we are in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations promulgated thereunder.
Yours very truly,
/s/ SCHRECK MORRIS
------------------------
SCHRECK MORRIS
---------------------------------------
(Name of Selling Stockholder)
CUSTODY AGREEMENT AND POWER OF ATTORNEY
for Sale of Common Stock of
RCM TECHNOLOGIES, INC.
Attorney-in-Fact:
Mr. Leon Kopyt
c/o RCM Technologies, Inc.
2500 McClellan Avenue, Suite 350
Pennsauken, NJ 08109-4613
Custodian:
Ms. Susan Silber
Assistant Secretary
American Stock Transfer & Trust Company
40 Wall Street
New York, NY 10005
Dear Mr. Kopyt and Ms. Silber:
RCM Technologies, Inc., a Nevada corporation (the "Company") and the
undersigned (the "Selling Stockholder") propose to sell certain shares of Common
Stock, $.05 par value per share, of the Company (the "Common Stock") to
underwriters (the "Underwriters") for whom Janney Montgomery Scott Inc. and
Legg Mason Wood Walker Incorporated will act as representatives (the
"Representatives") for distribution under a Registration Statement on Form S-1
(the "Registration Statement") to the public at a price and on terms to be
hereafter determined. It is understood that at this time there is no commitment
on the part of the Underwriters to purchase any shares of Common Stock and no
assurance that an offering of Common Stock will take place. The shares of Common
Stock that the undersigned proposes to sell to the Underwriters pursuant to the
underwriting agreement hereinafter mentioned are referred to herein as the
"Shares."
<PAGE>
1. Appointment and Powers of Attorney-in-Fact.
A. The undersigned hereby irrevocably constitutes and appoints Leon
Kopyt (the "Attorney-in-Fact"), as his agent and attorney-in-fact, with full
power of substitution, with respect to all matters arising in connection with
the public offering and sale of the Shares, including, but not limited to, the
power and authority on behalf of the undersigned to do or cause to be done any
of the following things:
(i) prepare, execute and deliver an Underwriting Agreement
(the "Underwriting Agreement"), substantially in the form of the draft dated
June 3, 1997, delivered to the undersigned herewith, receipt of which is
acknowledged, but with such insertions, changes, additions or deletions
(including, but not limited to, the determination of the offering price of the
Shares) as the Attorney-in-Fact shall approve in his sole discretion, such
approval to be conclusively evidenced by the execution and delivery of the
Underwriting Agreement by the Attorney-in-Fact on behalf of the undersigned;
(ii) sell, assign, transfer and deliver the Shares to the
Underwriters pursuant to the Underwriting Agreement and deliver to the
Underwriters certificates for the Shares so sold (the price for such shares to
be the same as that paid by the Underwriters to the Company);
(iii) take any and all steps deemed necessary or desirable by
the Attorney-in-Fact in connection with the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act" ), the Securities
Exchange Act of 1934, as amended, and under the securities or "blue sky" laws of
various states and jurisdictions, including, without limitation, the giving or
making of such undertakings, representations and agreements and the taking of
such other steps as the Attorney-in-Fact may deem necessary or advisable;
(iv) instruct the Company and the Custodian, as hereinafter
defined, on all matters pertaining to the sale of the Shares and delivery of
certificates therefor;
(v) provide, in accordance with the Underwriting Agreement,
for the payment of expenses of the offering and sale of the Common Stock covered
by the Registration Statement; and
(vi) otherwise take all actions and do all things necessary or
proper, required, contemplated or deemed advisable or desirable by the
Attorney-in-Fact in his discretion, including the execution and delivery of any
documents, and generally act for and in the name of the undersigned with respect
to the sale of the Shares to the Underwriters and the reoffering of the Shares
by the Underwriters as fully as could the undersigned if then personally present
and acting.
B. The Attorney-in-Fact may act alone in exercising the rights and
powers conferred on the Attorney-in-Fact by this Custody Agreement and Power of
Attorney ("this Agreement"). The Attorney-in-Fact is hereby empowered to
determine, in his sole and absolute discretion, the time or times when, the
purposes for which, and the manner in which, any power herein conferred upon the
Attorney-in-Fact shall be exercised.
2
<PAGE>
C. The Custodian (as defined below), the Representatives, the Company
and all other persons dealing with the Attorney-in-Fact as such may rely and act
upon any writing believed in good faith to be signed by the Attorney-in-Fact.
D. The Attorney-in-Fact shall not receive any compensation for his
services rendered hereunder, except that he shall be entitled to cause the
Custodian to pay, from the proceeds payable to the undersigned, the
undersigned's proportionate share of any out-of-pocket expenses incurred under
this Agreement.
2. Appointment of Custodian; Deposit of Shares.
A. In connection with and to facilitate the sale of the Shares to the
Underwriters, the undersigned hereby appoints American Stock Transfer & Trust
Company as custodian (the "Custodian") and herewith deposits with the Custodian
one or more certificates for Common Stock that represent not less than the total
number of Shares to be sold by the undersigned to the Underwriters, which number
is set forth on Schedule I hereto. Each such certificate so deposited is in
negotiable and proper deliverable form endorsed in blank with the signature of
the undersigned thereon guaranteed by a commercial bank or trust company in the
United States or by a member firm of the New York Stock Exchange, or is
accompanied by a duly executed stock power or powers in blank, bearing the
signature of the undersigned so guaranteed. The Custodian is hereby authorized
and directed, subject to the instructions of the Attorney-in-Fact, (a) to hold
in custody the certificate or certificates deposited herewith, (b) to deliver or
to authorize the Company's transfer agent to deliver the certificate or
certificates deposited hereunder (or replacement certificate(s) for the Shares)
to or at the direction of the Attorney-in-Fact in accordance with the terms of
the Underwriting Agreement and (c) to return or cause the Company's transfer
agent to return to the undersigned new certificate(s) for the shares of Common
Stock represented by any certificate deposited hereunder which are not sold
pursuant to the Underwriting Agreement. The Custodian shall be entitled to
customary compensation for the services to be rendered hereunder as set forth in
Schedule II attached hereto. Such compensation shall be paid to the Custodian by
the Company.
B. Until the Shares have been delivered to the Underwriters against
payment therefor in accordance with the Underwriting Agreement, the undersigned
shall retain all rights of ownership with respect to the Shares deposited
hereunder, including the right to vote and to receive all dividends and payment
thereon, except the right to retain custody of or dispose of such Shares, which
right is subject to this Agreement and the Underwriting Agreement.
3. Sale of Shares; Remitting Net Proceeds.
A. The Attorney-in-Fact is hereby authorized and directed to deliver or
cause the Custodian or the Company's Transfer Agent to deliver certificates for
the Shares to the Representatives, as provided in the Underwriting Agreement,
against delivery to the Attorney-in-Fact for the accounts of the undersigned of
the purchase price of the Shares, at the time and in the funds specified in the
Underwriting Agreement. The Attorney-in-Fact is authorized, on behalf of the
undersigned, to accept and acknowledge receipt of the payment of the purchase
price for the Shares and shall promptly remit to the undersigned his
proportionate share of the proceeds.
3
<PAGE>
4. Representations. Warranties and Agreements. The undersigned represents and
warrants to, and agrees with, the Company, the Attorney-in-Fact, the Custodian
and the Underwriters as follows:
A. The undersigned has full legal right, power and authority to enter
into and perform this Agreement and the Underwriting Agreement.
B. The undersigned has reviewed the representations and warranties to
be made by the undersigned as a Selling Stockholder contained in the
Underwriting Agreement, and hereby represents, warrants and covenants that each
of such representations and warranties is true and correct as of the date hereof
and, except as the undersigned shall have notified the Attorney-in-Fact pursuant
to paragraph F of the attached instructions, will be true and correct at all
times from the date hereof through and including the time of the closing of the
sale of the Shares to the Underwriters. The undersigned will promptly notify the
Attorney-in-Fact of any development that would make any such representation and
warranty untrue.
C. The undersigned is not directly or indirectly an affiliate of or
associated with any member of the National Association of Securities Dealers,
Inc.
D. Upon execution and delivery of the Underwriting Agreement by the
undersigned, the undersigned agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, each Underwriter and each person who controls the Company or any
Underwriter, and to contribute to amounts paid as a result of losses, claims,
damages, liabilities and expenses, as provided in Section 8(a) of the
Underwriting Agreement.
E. Upon execution and delivery of the Underwriting Agreement by the
undersigned, the undersigned agrees to be bound by and to perform each of the
covenants and agreements of the undersigned as a Selling Stockholder in the
Underwriting Agreement.
F. The undersigned agrees to deliver to the Attorney-in-Fact such
documentation as the Attorney-in-Fact, the Company or the Underwriters or any of
their respective counsel may reasonably request in order to effectuate any of
the provisions hereof or of the Underwriting Agreement, all of the foregoing to
be in form and substance satisfactory in all respects to the Attorney-in-Fact.
The foregoing representations, warranties and agreements are made for
the benefit of, and may be relied upon by, the Attorney-in-Fact, the Company,
the Custodian, the Underwriters and their respective representatives, agents and
counsel and are in addition to, and not in limitation of, the representations,
warranties and agreements of the Selling Stockholder in the Underwriting
Agreement.
4
<PAGE>
5. Irrevocability of Instruments: Termination of this Agreement.
A. This Agreement, the deposit of the Shares pursuant hereto and all
authority hereby conferred, is granted, made and conferred subject to and in
consideration of (i) the interests of the Attorney-in-Fact, the Underwriters and
the Company in and for the purpose of completing the transactions contemplated
hereunder and by the Underwriting Agreement and (ii) the completion of the
registration of Common Stock pursuant to the Registration Statement and the
other acts of the above-mentioned parties from the date hereof to and including
the execution and delivery of the Underwriting Agreement in anticipation of the
sale of Common Stock, including the Shares, to the Underwriters; and the
Attorney-in-Fact is hereby further vested with an estate, right, title and
interest in and to the Shares deposited herewith for the purpose of irrevocably
empowering and securing to him authority sufficient to consummate said
transactions. Accordingly, this Agreement shall be irrevocable prior to June 30,
1997, and shall remain in full force and effect until that date. The undersigned
further agrees that this Agreement shall not be terminated by operation of law
or upon the occurrence of any event whatsoever, including the death, disability
or incompetence of any of the undersigned. If any event referred to in the
preceding sentence shall occur, whether with or without notice thereof to the
Attorney-in-Fact, any of the Underwriters or any other person, the
Attorney-in-Fact shall nevertheless be authorized and empowered to deliver and
deal with the Shares deposited under the Agreement by the undersigned in
accordance with the terms and provisions of the Underwriting Agreement and this
Agreement as if such event had not occurred.
B. If the sale of the Shares contemplated by this Agreement is not
completed by June 30, 1997, this Agreement shall terminate (without affecting
any lawful action of the Attorney-in-Fact or the Custodian prior to such
termination), and the Attorney-in-Fact shall cause the Custodian to return to
the undersigned all certificates for the Shares deposited hereunder, but only
after having received payment of any expenses to be paid or borne by the Selling
Stockholder. The undersigned hereby covenants with the Attorney-in-Fact that if
for any reason the sale of the Shares contemplated hereby shall not be
consummated, the undersigned shall pay all expenses payable by the Selling
Stockholder hereunder or under the Underwriting Agreement.
6. Liability and Indemnification of the Attorney-in-Fact and Custodian. The
Attorney-in-Fact and the Custodian assume no responsibility or liability to the
undersigned or to any other person, other than to deal with the Shares, the
proceeds from the sale of the Shares and any other shares of Common Stock
deposited with the Custodian pursuant to the terms of this Agreement in
accordance with the provisions hereof. The duties and obligations of the
Custodian shall be limited to and determined solely by the express provisions of
this Agreement, and no implied duties or obligations shall be read into this
Agreement against the Custodian. The undersigned hereby agrees to indemnify and
hold harmless the Attorney-in-Fact and the Custodian, and their respective
officers, agents, successors, assigns and personal representatives with respect
to any act or omission of or by any of them in good faith in connection with any
and all matters within the scope of this Agreement or the Underwriting
Agreement; provided, however, that the Attorney-in-Fact and the Custodian may be
liable to the undersigned for any such act or omission to the extent
attributable to gross negligence or fraud. The Custodian may consult with
counsel of its own choice and shall have full and complete authorization and
protection for any action taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel.
5
<PAGE>
7. Interpretation.
A. The representations, warranties and agreements of the undersigned
contained herein and in the Underwriting Agreement shall survive the sale and
delivery of the Shares and the termination of this Agreement.
B. The validity, enforceability, interpretation and construction of
this Agreement shall be determined in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the State of
New York, and this Agreement shall inure to the benefit of, and be binding upon,
the undersigned and the undersigned's heirs, executors, administrators,
successors and assigns, as the case may be.
C. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any such provision shall be prohibited by or invalid under applicable
law, it shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
D. The use of the masculine gender in this Agreement includes the
feminine and neuter, and the use of the singular includes the plural, wherever
appropriate.
8. 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.
6
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Custody Agreement and
Power of Attorney this ________ day of _____________, 1997.
-----------------------------------
Signature of Selling Stockholder (Please sign exactly as your
Guaranteed by: Stockholder name appears on your
stock certificate(s).)
Name and address to
which notices and funds shall be
sent:
-----------------------------------
(NAME)
-----------------------------------
(STREET)
-----------------------------------
(CITY, STATE, ZIP CODE)
(NOTE: The signature of the Selling Stockholder must be guaranteed by a
commercial bank or trust company in the United States or by a member firm of the
New York Stock Exchange.)
ACCEPTED by the Attorney-in-Fact ACCEPTED by the Custodian
as of the date above set forth: as of the date above set forth:
- ----------------------------------- ---------------------------------
___________________________________ By: ______________________________
SEE THE ATTACHED INSTRUCTIONS
7
<PAGE>
INSTRUCTIONS
(For completing the Custody Agreement and Power of Attorney)
A. You have been sent five copies of the Custody Agreement and Power of
Attorney (the "Agreement"). Please complete and return four copies of the
Agreement and stock certificate(s) as set forth in paragraph D below. A fully
executed copy of the Agreement will be returned to you; a fully executed copy of
the Agreement and your stock certificate(s) will be retained by the Custodian;
and a fully executed copy of the Agreement will be delivered to the
Attorney-in-Fact and to the Representatives.
B. Complete Schedule I attached hereto.
C. Each copy of this Agreement and each stock certificate or stock
power deposited hereunder must be executed by you with your signature on this
Agreement and the stock certificate(s) or the accompanying stock power
guaranteed by a commercial bank or trust company in the United States or any
broker that is a member firm of the New York Stock Exchange. Please sign the
stock certificate(s) or stock power and the Agreement exactly as your name
appears on your stock certificate(s).
D. Endorsed stock certificate(s) or stock certificate(s) with stock
powers attached along with all four executed copies of the completed Agreement
should be promptly returned by hand delivery or by certified mail appropriately
insured to:
Ms. Susan Silber
Assistant Secretary
American Stock Transfer & Trust Company
40 Wall Street
New York, NY 10005
If sent through the mail, it is recommended that the certificate(s) not be
endorsed, but an executed stock power be sent under separate cover from the
certificate(s).
E. If any certificate that you submit represents a greater number of
Shares than the aggregate number of Shares that you agree to sell pursuant to
the Underwriting Agreement, the Custodian will cause to be delivered to you in
due course, but not earlier than ten days after the closing for the purchase of
Shares by the Underwriters, a certificate for the excess number of Shares.
F. For purposes of discharging your obligations under the Underwriting
Agreement, please contact James T. Hunter of Janney Montgomery Scott Inc. if any
information or representation included in the foregoing Agreement or the
Underwriting Agreement should change, or if you become aware of any new
information, at any time prior to termination of the period referred to in the
Underwriting Agreement.
8
<PAGE>
---------------------------------------
(Name of Selling Stockholder)
SCHEDULE I
Certificate(s) for Shares of Common Stock of
RCM TECHNOLOGIES, INC.
deposited under
Custody Agreement and Power of Attorney
<TABLE>
<CAPTION>
Number of Shares of Number of Shares of
Common Stock Common Stock from this
Certificate Number Represented by Certificate Certificate to Be Sold*
<S> <C> <C>
- --------------- ------------------------- -------------------------
- --------------- ------------------------- -------------------------
- --------------- ------------------------- -------------------------
- --------------- ------------------------- -------------------------
- --------------- ------------------------- -------------------------
- --------------- ------------------------- -------------------------
Total: _________________________
</TABLE>
*If fewer than all shares represented by a certificate are to be sold, indicate
below, if desired for income tax purposes, the date of purchase or purchase
price of the particular shares to be sold.
9
<PAGE>
SCHEDULE II
Fees of Custodian
Custodial Fees......................................................$____
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated December 16, 1996 (except for Note 6 as to which
the date is December 19, 1996, Note 4, regarding the acquisition of Programming
Alternatives of Minnesota, Inc., as to which the date is January 7, 1997 and the
last paragraph of Note 16, as to which the date is May 2, 1997), accompanying
the consolidated financial statements and schedules of RCM Technologies, Inc. (a
Nevada corporation) and Subsidiaries contained in the Registration Statement and
Prospectus. We consent to the use of the aforementioned report in the
Registration Statement and Prospectus, and to the use of our name as it appears
under the caption "Experts."
GRANT THORNTON LLP
Philadelphia Pennsylvania
June 4, 1997
