<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 29, 1997
REGISTRATION STATEMENT NO. 333-37455
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
ROMAC INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
---------------------
<TABLE>
<S> <C>
FLORIDA 59-3264661
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
120 WEST HYDE PARK PLACE, SUITE 150
TAMPA, FLORIDA 33606
(813) 258-8855
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
DAVID L. DUNKEL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ROMAC INTERNATIONAL, INC.
120 WEST HYDE PARK PLACE, SUITE 150
TAMPA, FLORIDA 33606
(813) 258-8855
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES OF COMMUNICATIONS TO:
<TABLE>
<S> <C>
MICHAEL L. JAMIESON, ESQ. BENJAMIN F. GARMER, III, ESQ.
HOLLAND & KNIGHT LLP FOLEY & LARDNER
400 NORTH ASHLEY DRIVE, SUITE 2300 777 EAST WISCONSIN AVENUE
TAMPA, FLORIDA 33602 MILWAUKEE, WISCONSIN 53217
(813) 227-8500 (414) 271-2400
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. -- OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses in connection with the
issuance and distribution of the securities being registered hereunder.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 32,827
NASD filing fee............................................. 11,333
Nasdaq additional listing fees.............................. 17,500
Printing and engraving expenses............................. 100,000+
Accounting fees and expenses................................ 50,000+
Legal fees and expenses..................................... 100,000+
Blue Sky fees and expenses.................................. 15,000+
Miscellaneous............................................... 145,840+
----------
Total............................................. 472,500+
==========
</TABLE>
- ---------------
+ Estimated.
ITEM 15. -- INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Florida corporation. The Florida Business Corporation Act
("FBCA") provides that, in general, a business corporation may indemnify any
person who is or was a party to any proceeding (other than an action by, or in
the right of, the corporation) by reason of the fact that he is or was a
director or officer of the corporation, against liability incurred in connection
with such proceeding, including any appeal thereof, provided certain standards
are met, including that such officer or director acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation, and provided further that, with respect to any criminal action
or proceeding, the officer or director had no reasonable cause to believe his
conduct was unlawful. In the case of proceedings by or in the right of the
corporation, the FBCA provides that, in general, a corporation may indemnify any
person who was or is a party to any such proceeding by reason of the fact that
he is or was a director or officer of the corporation against expenses and
amounts paid in settlement actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof,
provided that such person acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be made in respect of any claim as to which
such person is adjudged liable unless a court of competent jurisdiction
determines upon application that such person is fairly and reasonably entitled
to indemnity. To the extent that any officers or directors are successful on the
merits or otherwise in the defense of any of the proceedings described above,
the FBCA provides that the corporation is required to indemnify such officers or
directors against expenses actually and reasonably incurred in connection
therewith. However, the FBCA further provides that, in general, indemnification
or advancement of expenses shall not be made to or on behalf of any officer or
director if a judgment or other final adjudication establishes that his actions,
or omissions to act, were material to the cause of action so adjudicated and
constitute: (i) a violation of the criminal law, unless the director or officer
had reasonable cause to believe his conduct was lawful or had no reasonable
cause to believe it was unlawful; (ii) a transaction from which the director or
officer derived an improper personal benefit; (iii) in the case of a director, a
circumstance under which the director has voted for or assented to a
distribution made in violation of the FBCA or the corporation's articles of
incorporation; or (iv) willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder. Article V of the Company's Bylaws provides that the
Company shall indemnify any director, officer, employee or agent or any former
director, officer, employee or agent to the full extent permitted by Florida
law.
II-1
<PAGE> 3
The Underwriters also will agree to indemnify the directors and officers of
the Company against certain liabilities as set forth in the Underwriting
Agreement (see Exhibit 1).
The Company has purchased insurance with respect to, among other things,
any liabilities that may arise under the statutory provisions referred to above.
ITEM 16. -- Exhibits.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
1 -- Form of Underwriting Agreement
4.1 -- Amended and Restated Articles of Incorporation*
4.2 -- Bylaws*
5 -- Opinion of Holland & Knight LLP
23.1 -- Consent of Holland & Knight LLP (to be contained in Exhibit
5)
23.2 -- Consent of Price Waterhouse LLP
23.3 -- Consent of Frank, Rimerman & Co. LLP
24 -- Powers of Attorney (included on the signature page of the
Registration Statement)
</TABLE>
- ---------------
* Incorporated by reference to the Company's Registration Statement on Form S-1
(File No. 33-91738).
ITEM 17. -- UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"Securities Act"), each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the indemnification provisions described herein, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission (the "Commission") such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or Rule 497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Tampa, State of Florida, on the 28th
day of October, 1997.
ROMAC INTERNATIONAL, INC.
By: /s/ DAVID L. DUNKEL
------------------------------------
David L. Dunkel
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, Amendment No. 1 to the
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DAVID L. DUNKEL President, Chief Executive October 28, 1997
- ----------------------------------------------------- Officer, and Director
David L. Dunkel (principal executive
officer)
/s/ JAMES D. SWARTZ Executive Vice President, October 28, 1997
- ----------------------------------------------------- Chief Operating Officer and
James D. Swartz Director
/s/ THOMAS CALCATERRA Chief Financial Officer and October 28, 1997
- ----------------------------------------------------- Secretary (principal
Thomas Calcaterra financial officer and
principal accounting
officer)
/s/ PETER DOMINICI Treasurer and Director October 28, 1997
- -----------------------------------------------------
Peter Dominici
/s/ WILLIAM R. CAREY, JR. Director October 28, 1997
- -----------------------------------------------------
William R. Carey, Jr.
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
Director October 28, 1997
/s/ RICHARD M. COCCHIARO
- -----------------------------------------------------
Richard M. Cocchiaro
/s/ TODD W. MANSFIELD Director October 28, 1997
- -----------------------------------------------------
Todd W. Mansfield
/s/ MAUREEN A. RORECH Director October 28, 1997
- -----------------------------------------------------
Maureen A. Rorech
/s/ HOWARD W. SUTTER Director October 28, 1997
- -----------------------------------------------------
Howard W. Sutter
/s/ GORDON TUNSTALL Director October 28, 1997
- -----------------------------------------------------
Gordon Tunstall
*By: /s/ DAVID L. DUNKEL
-------------------------------------------------
David L. Dunkel
Attorney-in-fact
</TABLE>
II-4
<PAGE> 6
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
1 -- Form of Underwriting Agreement
4.1 -- Amended and Restated Articles of Incorporation*
4.2 -- Bylaws*
5 -- Opinion of Holland & Knight LLP
23.1 -- Consent of Holland & Knight LLP (to be contained in Exhibit
5)
23.2 -- Consent of Price Waterhouse LLP
23.3 -- Consent of Frank, Rimerman & Co. LLP for Sequent Associates,
Inc.
24 -- Powers of Attorney (included on the signature page of the
Registration Statement)
</TABLE>
- ---------------
* Incorporated by reference to the Company's Registration Statement on Form S-1
(File No. 33-91738).
<PAGE> 1
EXHIBIT 1.1
ROMAC INTERNATIONAL, INC.
4,210,000 Shares of Common Stock*
UNDERWRITING AGREEMENT
OCTOBER , 1997
ROBERT W. BAIRD & CO. INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES, INC.
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
As Representatives of the Several Underwriters
Identified in Schedule II Annexed Hereto
c/o Robert W. Baird & Co. Incorporated
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. Romac International, Inc., a
Florida corporation (the "Company"), and the shareholders of the Company
identified in Schedule I annexed hereto (the "Selling Shareholders") propose to
sell 4,210,000 shares (the "Firm Shares") of common stock, $.01 par value per
share (the "Common Stock"), to the several underwriters identified in Schedule
II annexed hereto (the "Underwriters"), who are acting severally and not
jointly. In addition, the Company has agreed to grant to the Underwriters an
option to purchase up to 631,500 additional shares of Common Stock (the
"Optional Shares") as provided in section 6 hereof. The Firm Shares and, to
the extent such option is exercised, the Optional Shares are hereinafter
collectively referred to as the "Shares."
You, as representatives of the Underwriters (the
"Representatives"), have advised the Company and the Selling Shareholders that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon hereafter as in your judgment is advisable and that the
public offering price of the Shares initially will be $________ per share.
The Company and the Selling Shareholders hereby confirm their
respective agreements with the Underwriters and each other as follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. The Company represents and warrants to, and agrees with, the several
Underwriters, and shall be deemed to
- --------------------------
* Plus an option to acquire up to 631,500 additional shares of Common
Stock from the Company to cover over-allotments.
<PAGE> 2
represent and warrant to the several Underwriters on each Closing Date (as
hereinafter defined), that:
(a) Each of the Company and the subsidiaries of the
Company that are listed on Exhibit 21 of the Company's most recent
Annual Report on Form 10-K incorporated by reference into the
Registration Statement (as hereinafter defined) (individually, a
"Subsidiary" and collectively, the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation and in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and
described in the Prospectus (as hereinafter defined) and the
Registration Statement; each of the Company and the Subsidiaries is
duly registered and qualified to do business as a foreign corporation
under the laws of, and is in good standing as such in, each
jurisdiction in which such registration or qualification is required,
except where the failure to so register or qualify would not have a
material adverse effect on the condition (financial or other),
business, property, net worth, results of operations or prospects of
the Company and the Subsidiaries, taken as a whole ("Material Adverse
Effect"); and no proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification. Complete
and correct copies of the articles of incorporation and by-laws, as
amended or restated ("Articles of Incorporation" and "By-laws,"
respectively), of the Company and each of the Subsidiaries as in
effect on the date hereof have been delivered to the Representatives,
and no changes thereto will be made on or subsequent to the date
hereof and prior to each Closing Date.
(b) The shares of Common Stock issued and outstanding
immediately prior to the issuance and sale of the Shares to be sold by
the Company hereunder as set forth in the Prospectus have been duly
authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Prospectus and the
Registration Statement. There are no preemptive, preferential or,
except as described in the Prospectus, other rights to subscribe for
or purchase any shares of Common Stock (including the Shares), and no
shares of Common Stock have been issued in violation of such rights.
The Shares to be issued and sold by the Company to the Underwriters
have been duly authorized and, when issued, delivered and paid for
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable and will conform to the description thereof contained in
the Prospectus and the Registration Statement. The delivery of
certificates for the Shares to be issued and sold by the Company
hereunder and payment therefor pursuant to the terms of this Agreement
will pass valid title to such Shares to the Underwriters, free and
clear of any lien, claim, encumbrance or defect in title. Except as
described in the Prospectus, there are no outstanding options,
warrants or other rights of any description, contractual or otherwise,
entitling any person to be issued any class of security by the Company
or any Subsidiary, and there are no holders of Common Stock or other
securities of the Company or any Subsidiary, or of securities that are
convertible or exchangeable into Common Stock or other securities of
the
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<PAGE> 3
Company or any Subsidiary, that have rights to the registration of
such Common Stock or securities under the Securities Act of 1933, as
amended, and the regulations thereunder (together, the "Act") or the
securities laws or regulations of any of the states (the "Blue Sky
Laws").
(c) Except for the Subsidiaries, the inactive
subsidiaries of the Company listed on Schedule IV attached hereto
(none of which presently is engaged in any business operations or
holds any significant assets), and as otherwise set forth in the
Prospectus, the Company has no subsidiaries and does not own any
equity interest in or control, directly or indirectly, any other
corporation, limited liability company, partnership, joint venture,
association, trust or other business organization. The Company owns
directly all of the issued and outstanding capital stock of each
Subsidiary, free and clear of any and all liens, claims, encumbrances
or security interests, and all such capital stock has been duly
authorized and validly issued and is fully paid and nonassessable.
There are no outstanding options, warrants or other rights of any
description, contractual or otherwise, entitling any person to
subscribe for or purchase any shares of capital stock of any
Subsidiary.
(d) The Company has full corporate power and authority to
enter into and perform this Agreement, and the execution and delivery
by the Company of this Agreement and the performance by the Company of
its obligations hereunder and the consummation of the transactions
described herein, have been duly authorized with respect to the
Company by all necessary corporate action and will not: (i) violate
any provisions of the Articles of Incorporation or By-laws of the
Company or any Subsidiary; (ii) violate any provisions of, or result
in the breach, modification or termination of, or constitute a default
under, any provision of any agreement, lease, franchise, license,
indenture, permit, mortgage, deed of trust, evidence of indebtedness
or other instrument to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary, or any property owned or
leased by the Company or any Subsidiary, may be bound or affected;
(iii) violate any statute, ordinance, rule or regulation applicable to
the Company or any Subsidiary, or order or decree of any court,
regulatory or governmental body, arbitrator, administrative agency or
instrumentality of the United States or other country or jurisdiction
having jurisdiction over the Company or any Subsidiary; or (iv) result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary. No consent,
approval, authorization or other order of any court, regulatory or
governmental body, arbitrator, administrative agency or
instrumentality of the United States or other country or jurisdiction
is required for the execution and delivery of this Agreement by the
Company, the performance of its obligations hereunder or the
consummation of the transactions contemplated hereby, except for
compliance with the Act, the Securities Exchange Act of 1934, as
amended, and the regulations thereunder (together, the "Exchange
Act"), the Blue Sky Laws applicable to the public offering of the
Shares by the several Underwriters and the clearance of such offering
and the underwriting arrangements evidenced hereby with the National
Association of Securities Dealers, Inc. (the "NASD"). This Agreement
has
-3-
<PAGE> 4
been duly executed and delivered by and on behalf of the Company and
is a valid and binding agreement of the Company enforceable against
the Company in accordance with its terms.
(e) A registration statement on Form S-3 (Reg. No.
333-37455) with respect to the Shares, including a preliminary form of
prospectus, has been carefully prepared by the Company in conformity
with the requirements of the Act and has been filed with the
Securities and Exchange Commission (the "Commission"). The conditions
for use of Form S-3, set forth in the General Instructions thereto,
have been satisfied. Such registration statement, as finally amended
and revised at the time such registration statement was or is declared
effective by the Commission (including the information contained in
the form of final prospectus, if any, filed with the Commission
pursuant to Rule 424(b) and Rule 430A under the Act and deemed to be
part of the registration statement if the registration statement has
been declared effective pursuant to Rule 430A(b)) and as thereafter
amended by post-effective amendment, if any, and any and all
registration statements and amendments filed pursuant to Rule 462
under the Act, if any, is herein referred to as the "Registration
Statement." The related final prospectus in the form first filed with
the Commission pursuant to Rule 424(b) or, if no such filing is
required, as included in the Registration Statement, or any supplement
thereto, is herein referred to as the "Prospectus." The prospectus
subject to completion in the form included in the Registration
Statement at the time of the initial filing of the Registration
Statement with the Commission, and each such prospectus as amended
from time to time until the date of the Prospectus, is referred to
herein as the "Preliminary Prospectus." Reference made herein to each
Preliminary Prospectus or the Prospectus, as amended or supplemented,
shall include all documents and information incorporated by reference
therein and shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, and so incorporated by reference, under the Exchange
Act. The Company has prepared and filed such amendments to the
Registration Statement since its initial filing with the Commission,
if any, as may have been required to the date hereof, and will file
such additional amendments thereto as may hereafter be required.
There have been delivered to the Representatives two signed copies of
the Registration Statement and each amendment thereto, if any,
including any document filed under the Exchange Act and deemed to be
incorporated by reference into the Registration Statement, together
with two copies of each exhibit filed therewith or incorporated by
reference therein, and such number of conformed copies for each of the
Underwriters of the Registration Statement and each amendment thereto,
if any (but without exhibits), and of each Preliminary Prospectus and
of the Prospectus as the Representatives have requested.
(f) Neither the Commission nor any state securities
commission has issued any order preventing or suspending the use of
any Preliminary Prospectus, nor, to the knowledge of the Company, have
any proceedings for that purpose been initiated or threatened, and
each Preliminary Prospectus filed with the Commission as part of the
Registration Statement as originally filed or as part of any amendment
or supplement
-4-
<PAGE> 5
thereto complied when so filed with the requirements of the Act and,
as of its date, did not include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. As of the
effective date of the Registration Statement, and at all times
subsequent thereto up to each Closing Date, the Registration Statement
and the Prospectus contained or will contain all statements that are
required to be stated therein in accordance with the Act and conformed
or will conform in all respects to the requirements of the Act, and
neither the Registration Statement nor the Prospectus included or will
include any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the
Company, nor any person that controls, is controlled by (including the
Subsidiaries) or is under common control with the Company, has
distributed or will distribute prior to each Closing Date any offering
material in connection with the offering and sale of the Shares other
than a Preliminary Prospectus, the Prospectus, the Registration
Statement or other materials permitted by the Act and provided to the
Representatives.
(g) The documents that are incorporated by reference in
each Preliminary Prospectus, the Prospectus or the Registration
Statement or from which information is so incorporated by reference,
when they became effective or were filed with the Commission, as the
case may be, complied with the requirements of the Act or the Exchange
Act, as applicable, and any document so filed and incorporated by
reference subsequent to the effective date of the Registration
Statement shall, when it is filed with the Commission, comply with the
requirements of the Act and the Exchange Act, as applicable, and when
read together with the other information included in such Preliminary
Prospectus, the Prospectus or the Registration Statement, as the case
may be, do not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(h) Price Waterhouse LLP, which has expressed its opinion
with respect to the consolidated financial statements and schedules of
the Company with the Commission and incorporated by reference into
each Preliminary Prospectus, the Prospectus or the Registration
Statement are independent accountants as required by the Act.
Price Waterhouse LLP, which has expressed its opinion with
respect to the consolidated financial statements and schedules of Uni*
Quality Solutions, Inc. ("UQ") filed with the Commission and
incorporated by reference into each Preliminary Prospectus, the
Prospectus or the Registration Statement are independent accountants
as required by the Act.
Frank, Rimerman & Co. LLP, which has expressed its opinion
with respect to the consolidated financial statements and schedules of
Sequent Associates, Inc. ("Sequent," and together with UQ, the
"Acquired Companies") filed with the Commission and incorporated by
reference into each Preliminary Prospectus, the
-5-
<PAGE> 6
Prospectus or the Registration Statement are independent accountants
as required by the Act.
(i) The consolidated financial statements of the Company
and the related notes thereto incorporated by reference into each
Preliminary Prospectus, the Prospectus and the Registration Statement
present fairly the financial position, results of operations and cash
flows of the Company as of their respective dates or for the
respective periods covered thereby, all in conformity with generally
accepted accounting principles consistently applied throughout the
periods involved. The financial statement schedules, if any,
incorporated by reference into the Registration Statement present
fairly the information required to be stated therein on a basis
consistent with the consolidated financial statements of the Company
contained therein. The Company had an outstanding capitalization as
set forth in the Registration Statement and under "Capitalization" in
the Prospectus as of the date indicated therein, and there has been no
material change thereto since such date except as disclosed in the
Prospectus. The financial and statistical information and data
relating to the Company in each Preliminary Prospectus, the Prospectus
and the Registration Statement are accurately presented and prepared
on a basis consistent with the audited consolidated financial
statements and books and records of the Company. The consolidated
financial statements and schedules of the Company and the related
notes thereto, as well as the financial statements and related notes
thereto described in subsection (j) below included in each Preliminary
Prospectus, the Prospectus or the Registration Statement are the only
such financial statements and schedules required under the Act to be
set forth therein.
(j) The financial statements of the Acquired Companies
and the related notes thereto incorporated by reference into each
Preliminary Prospectus, the Prospectus and the Registration Statement
present fairly the financial position, results of operations and cash
flows of the Acquired Companies as of their respective dates or for
the respective periods covered thereby, all in conformity with
generally accepted accounting principles consistently applied
throughout the periods involved. The financial and statistical
information and data relating to the Acquired Companies in each
Preliminary Prospectus, the Prospectus and the Registration Statement
are accurately presented and prepared on a basis consistent with the
audited financial statements and of books and records of the Acquired
Companies.
(k) The pro forma consolidated financial statements and
the related notes thereto which give effect to the acquisition of the
Acquired Companies incorporated by reference into each Preliminary
Prospectus, the Prospectus and the Registration Statement present
fairly the financial position, results of operations and cash flows of
the Company as of their respective dates or for the respective periods
covered thereby, all in conformity with generally accepted accounting
principles consistently applied throughout the periods involved. The
pro forma consolidated financial and statistical information and data
in each Preliminary Prospectus, the Prospectus and the Registration
Statement
-6-
<PAGE> 7
are accurately presented and prepared on a basis consistent with the
pro forma consolidated financial statements.
(l) Neither the Company nor any Subsidiary is, nor with
the giving of notice or passage of time or both, would be, in
violation or in breach of: (i) its respective Articles of
Incorporation or By-laws; (ii) any statute, ordinance, order, rule or
regulation applicable to the Company or such Subsidiary; (iii) any
order or decree of any court, regulatory body, arbitrator,
administrative agency or other instrumentality of the United States or
other country or jurisdiction having jurisdiction over the Company or
such Subsidiary; or (iv) any provision of any agreement, lease,
franchise, license, indenture, permit, mortgage, deed of trust,
evidence of indebtedness or other instrument to which the Company or
such Subsidiary is a party or by which any property owned or leased by
the Company or such Subsidiary is bound or affected. Neither the
Company nor any Subsidiary has received notice of any violation of any
applicable statute, ordinance, order, rule or regulation applicable to
the Company or any Subsidiary. The Company and each Subsidiary have
obtained and hold, and are in compliance with, all permits,
certificates, licenses, approvals, registrations, franchises, consents
and authorizations of governmental or regulatory authorities required
under all laws, rules and regulations in connection with their
businesses (hereinafter "permit" or "permits"), and all of such
permits are in full force and effect; and the Company and each
Subsidiary have fulfilled and performed all of their respective
obligations with respect to each such permit and no event has occurred
which would result in, or after notice or lapse of time would result
in, revocation or termination of any such permit or result in any
other impairment of the rights of the holder of such permit. Neither
the Company nor any Subsidiary is or has been (by virtue of any
action, omission to act, contract to which it is a party or other
occurrence) in violation of any applicable foreign, federal, state,
municipal or local statutes, laws, ordinances, rules, regulations or
orders (including those relating to environmental protection,
occupational safety and health and equal employment practices)
heretofore or currently in effect.
(m) There are no legal or governmental proceedings or
investigations pending or, to the knowledge of the Company, threatened
to which the Company or any Subsidiary is or may be a party or to
which any property owned or leased by the Company or any Subsidiary is
or may be subject, including, without limitation, any such proceedings
that are related to environmental or employment discrimination
matters, which are required to be described in the Registration
Statement or the Prospectus which are not so described, or which
question the validity of this Agreement or any action taken or to be
taken pursuant hereto. Except as described in the Registration
Statement or the Prospectus, neither the Company nor any Subsidiary:
(i) is in violation of any statute, ordinance, rule or regulation, or
any decision, order or decree of any court, regulatory body,
arbitrator, administrative agency or other instrumentality of the
United States or other country or jurisdiction having jurisdiction
over the Company or such Subsidiary relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environmental or human exposure to hazardous or
toxic
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<PAGE> 8
substances (collectively, "environmental laws"); (ii) owns or operates
any real property contaminated with any substance that is subject to
any environmental laws; (iii) is liable for any off-site disposal or
contamination pursuant to any environmental laws; or (iv) is subject
to any claim relating to any environmental laws, which violation,
contamination, liability or claim could have a Material Adverse
Effect.
(n) There is no transaction, relationship, obligation,
agreement or other document required to be described in the
Registration Statement or the Prospectus or to be filed or deemed to
be filed as an exhibit to the Registration Statement by the Act, which
has not been described or filed as required. All such contracts or
agreements to which the Company or any Subsidiary is a party have been
duly authorized, executed and delivered by the Company or such
Subsidiary, constitute valid and binding agreements of the Company or
such Subsidiary, and are enforceable by and against the Company or
such Subsidiary, in accordance with the respective terms thereof.
(o) Neither the Company nor any Subsidiary owns any real
property. The Company or a Subsidiary has good and valid title to all
property and assets reflected as owned by the Company or such
Subsidiary in the Company's consolidated financial statements
incorporated by reference into the Registration Statement (or
elsewhere in the Registration Statement or the Prospectus), free and
clear of all liens, claims, mortgages, security interests or other
encumbrance of any kind or nature whatsoever except those, if any,
reflected in such financial statements (or elsewhere in the
Registration Statement or the Prospectus). All property (real and
personal) held or used by the Company or a Subsidiary under leases,
licenses, franchises or other agreements is held by the Company or
such Subsidiary under valid, subsisting, binding and enforceable
leases, franchises, licenses or other agreements.
(p) Neither the Company nor any person that controls, is
controlled by (including the Subsidiaries) or is under common control
with the Company has taken or will take, directly or indirectly, any
action designed to cause or result in, or which constituted, or which
could cause or result in, stabilization or manipulation, under the
Exchange Act or otherwise, of the price of any security of the Company
to facilitate the sale or resale of the Common Stock.
(q) Except as described in the Registration Statement or
the Prospectus, since the respective dates as of which information is
given in the Registration Statement or the Prospectus and prior to
each Closing Date: (i) neither the Company nor any Subsidiary has or
will have incurred any liability or obligation, direct or contingent,
or entered into any transaction, that is material to the Company,
except in the ordinary course of business; (ii) the Company has not
and will not have paid or declared any dividend or other distribution
with respect to its capital stock and neither the Company nor any
Subsidiary is or will be delinquent in the payment of principal or
interest on any outstanding debt obligation; and (iii) there has not
been and will not have been any change in the capital stock, any
material change in the indebtedness of the Company or
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<PAGE> 9
any Subsidiary, or any change or development involving or which could
be expected to involve, a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business.
(r) Neither the Company nor any person that controls, is
controlled by (including the Subsidiaries) or is under common control
with the Company has, directly or indirectly: (i) made any unlawful
contribution to any candidate for political office, or failed to
disclose fully any contribution in violation of law; or (ii) made any
payment to any federal, state or foreign governmental officer or
official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the
United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(s) The Company or a Subsidiary owns or possesses
adequate rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights and licenses presently used in or necessary
for the conduct of its business or ownership of its properties, and
neither the Company nor any Subsidiary has violated or infringed upon
the rights of others, or received any notice of conflict with the
asserted rights of others, in respect thereof.
(t) The Company or a Subsidiary has in place and
effective such policies of insurance, with limits of liability in such
amounts, as are normal and prudent in the ordinary course of the
business of the Company and its Subsidiaries.
(u) No labor dispute with the employees of the Company or
any Subsidiary exists or, to the knowledge of the Company, is
imminent, and neither the Company nor any Subsidiary is a party to any
collective bargaining agreement and, to the knowledge of the Company,
no union organizational attempts have occurred or are pending. There
has been no change in the relationship of the Company or any
Subsidiary with any of its principal suppliers, manufacturers,
contractors or customers resulting in or that could result in a
Material Adverse Effect.
(v) Neither the Company nor any Subsidiary is an
"investment company", an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended.
(w) All federal, state and local tax returns required to
be filed by or on behalf of the Company or any Subsidiary have been
filed (or are the subject of valid extension) with the appropriate
federal, state and local authorities, and all such tax returns, as
filed, are accurate in all material respects; all federal, state and
local taxes (including estimated tax payments) required to be shown on
all such tax returns or claimed to be due from or with respect to the
business of the Company or such Subsidiary have been paid or reflected
as a liability on the financial statements of the Company or such
Subsidiary for
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<PAGE> 10
appropriate periods; all deficiencies asserted as a result of any
federal, state or local tax audits have been paid or finally settled,
and no issue has been raised in any such audit which, by application
of the same or similar principles, reasonably could be expected to
result in a proposed deficiency for any other period not so audited;
no state of facts exist or has existed which would constitute grounds
for the assessment of any tax liability with respect to the periods
which have not been audited by appropriate federal, state or local
authorities; there are no outstanding agreements or waivers extending
the statutory period of limitation applicable to any federal, state or
local tax return of any period; and neither the Company nor any
Subsidiary has ever been a member of an affiliated group of
corporations filing consolidated federal income tax returns, other
than a group of which the Company is and has been the common parent.
(x) Except for the Company's employee benefit plans
identified in Schedule 2(x) annexed hereto (the "Plans"), neither the
Company nor any Subsidiary is a participating employer or plan sponsor
with respect to any employee pension benefit plan as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or any employee welfare benefit plan as defined
in Section 3(1) of ERISA, including, without limitation, any
multiemployer welfare or pension plan. With respect to the Plans, the
Company is in substantial compliance with all applicable regulations,
including ERISA and the Code. With respect to each defined benefit
retirement plan, such plan does not have benefit liabilities (as
defined in Section 4001(a)(16) of ERISA) exceeding the assets of the
plan. The Company or the administrator of each of the Plans, as the
case may be, has timely filed the reports required to be filed by
ERISA and the Code in connection with the maintenance of the Plans,
and no facts, including, without limitation, any "reportable event" as
defined by ERISA and the regulations thereunder, exist in connection
with the Plans which, under applicable law, would constitute grounds
for the termination of any of the Plans by the Pension Benefit
Guaranty Corporation or for the appointment by the appropriate United
States District Court of a trustee to administer any of the Plans.
(y) The Company and each Subsidiary maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that: (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of consolidated financial
statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorizations; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(z) None of the Company, any Subsidiary, any officer or
director of the Company or any Subsidiary, or any person who owns, of
record or beneficially, any class of securities issued by the Company
is: (i) an officer, director or partner of any brokerage firm, broker
or dealer that is a member of the NASD ("NASD member"); or
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<PAGE> 11
(ii) directly or indirectly, a "person associated with" an NASD member
or an "affiliate" of an NASD member, as such terms are used in the
NASD Rules or By-Laws. In addition, neither the Company nor any
Subsidiary has issued or transferred any Common Stock, warrants,
options or other securities, or any other items of value, to any of
the Underwriters or any "related person" of any Underwriter, as such
term is used in the NASD Rules, except as provided in this Agreement.
(aa) The Common Stock has been registered pursuant to
Section 12(g) of the Exchange Act. The Common Stock has been approved
for designation as a Nasdaq National Market security on The Nasdaq
Stock Market ("Nasdaq").
(bb) Neither the Company, any Subsidiary nor any affiliate
of the Company or such Subsidiary does business with the government of
Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075 of the Florida Statutes, and the Company
agrees to comply with such Section if, prior to the completion of the
distribution of the Shares, the Company, any Subsidiary or any
affiliate of the Company or such Subsidiary commences doing such
business.
(cc) All offers and sales of the securities of and by the
Company and each Subsidiary prior to the date hereof were made in
compliance with the Act and all other applicable state and federal
laws or regulations.
(dd) The Company has obtained for the benefit of the
Underwriters the agreement, enforceable by Robert W. Baird & Co.
Incorporated ("Baird"), of each of the executive officers and
directors of the Company, and each of the Selling Shareholders, that
for a period of 90 days after the date of the Prospectus, such persons
will not, without the prior written consent of Baird, directly or
indirectly, offer, sell, transfer, or pledge, contract to sell,
transfer or pledge, or cause or in any way permit to be sold,
transferred, pledged, or otherwise disposed of, any: (i) shares of
Common Stock; (ii) rights to purchase shares of Common Stock
(including, without limitation, shares of Common Stock that may be
deemed to be beneficially owned by any such shareholder in accordance
with the applicable regulations of the Commission and shares of Common
Stock that may be issued upon the exercise of a stock option, warrant
or other convertible security); or (iii) securities that are
convertible or exchangeable into shares of Common Stock. The Company
has also obtained for the benefit of the Underwriters the agreement,
enforceable by Baird, of each of the shareholders of the Company who
holds registration rights, but is not a Selling Shareholder, that for
a period of one year after the date of the Prospectus, such persons
will not, without the prior written consent of Baird, exercise or
cause to be exercised, directly or indirectly, any rights to initiate
the registration of shares of Common Stock under the Act or any Blue
Sky Laws.
(ee) A copy of the Durable Power of Attorney and Custody
Agreement executed by each Selling Shareholder and a copy of each
Selling Shareholder's Selling
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<PAGE> 12
Shareholder's Questionnaire has been furnished to counsel for the
Underwriters prior to the date hereof, along with such other
information as such counsel may reasonably request in connection with
their review thereof.
A certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby. A certificate delivered by the Company to its
counsel for purposes of enabling such counsel to render the opinion referred to
in section 10(d) will also be furnished to the Representatives and counsel for
the Underwriters and shall be deemed to be additional representations and
warranties to the Underwriters by the Company as to the matters covered
thereby.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE SELLING
SHAREHOLDERS. Each Selling Shareholder, severally and not jointly, represents
and warrants to and agrees with the several Underwriters and the Company, and
shall be deemed to represent and warrant to the several Underwriters and the
Company on each Closing Date, that:
(a) Such Selling Shareholder has duly executed a durable
power of attorney and custody agreement ("Durable Power of Attorney
and Custody Agreement") naming David L. Dunkel, James D. Swartz,
Thomas Calcaterra and Peter Dominici, or any of them, as such Selling
Shareholder's attorney(s)-in-fact ("Attorneys-in-Fact") for the
purpose of entering into and carrying out this Agreement and naming
Boston Equiserve as custodian ("Custodian") of the Shares of such
Selling Shareholder for the purpose of selling such Shares to the
Underwriters on each Closing Date and receiving payment therefor.
(b) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Shareholder
of this Agreement and the Durable Power of Attorney and Custody
Agreement and for the sale and delivery of the Shares to be sold by
such Selling Shareholder hereunder, as set forth on Schedule I annexed
hereto, have been obtained. Such Selling Shareholder has, and at the
time of delivery thereof hereunder such Selling Shareholder will have,
good and valid title to the Shares proposed to be sold by such Selling
Shareholder hereunder, free and clear of all voting trust
arrangements, liens, encumbrances, security interests, equities,
claims and community or marital property rights, other than any
created by the Durable Power of Attorney and Custody Agreement or this
Agreement for the benefit of the Underwriters. Such Selling
Shareholder has full right, power and authority to enter into this
Agreement and the Durable Power of Attorney and Custody Agreement and
to sell, assign, transfer and deliver such Shares hereunder, free and
clear of all voting trust arrangements, liens, encumbrances, security
interests, equities, claims and community or marital property rights,
other than any created by the Durable Power of Attorney and Custody
Agreement or this Agreement for the benefit of the Underwriters. Upon
delivery of and payment for such Shares hereunder, the Underwriters
will acquire good and valid title thereto,
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<PAGE> 13
free and clear of all voting trust arrangements, liens, encumbrances,
security interests, equities, claims and community or marital property
rights.
(c) Such Selling Shareholder has not distributed and will
not distribute any Preliminary Prospectus, the Prospectus or any other
material in connection with the offering and sale of the Shares. Such
Selling Shareholder has not taken and will not take, directly or
indirectly, any action designed to or which could cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Common Stock.
(d) The execution, delivery and performance by such
Selling Shareholder of this Agreement and the Durable Power of
Attorney and Custody Agreement will not, if applicable, result in the
violation of any provisions of the Articles of Incorporation, By-laws
or other governing documents of such Selling Shareholder, or
constitute a breach, or be in contravention, of any provision of any
agreement, franchise, license, indenture, mortgage, deed of trust or
other instrument to which such Selling Shareholder is a party or by
which such Selling Shareholder or such Selling Shareholder's property
may be bound or affected, or any statute, rule or regulation
applicable to such Selling Shareholder, or violate any order or decree
of any court, regulatory body, administrative agency or other
governmental body having jurisdiction over such Selling Shareholder or
any of such Selling Shareholder's property. No consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the
execution and delivery of, and performance under, this Agreement by
such Selling Shareholder or the consummation by such Selling
Shareholder of the transactions contemplated by this Agreement, except
for compliance with the Act, the Exchange Act, the Blue Sky Laws
applicable to the public offering of the Shares by the Underwriters
and the clearance of such offering with the NASD. Such Selling
Shareholder hereby represents and warrants that each Attorney-in-Fact
has been duly appointed as attorney-in-fact by such Selling
Shareholder for the purpose of entering into and carrying out this
Agreement, and the Durable Power of Attorney and Custody Agreement has
been duly executed and delivered by or on behalf of such Selling
Shareholder to the Representatives.
(e) This Agreement, and the Durable Power of Attorney and
Custody Agreement are each valid and binding agreements of such
Selling Shareholder enforceable in accordance with their respective
terms.
(f) Such Selling Shareholder has deposited in custody,
under the Durable Power of Attorney and Custody Agreement,
certificates in negotiable form for the Shares to be sold hereunder by
such Selling Shareholder as set forth opposite such Selling
Shareholder's name on Schedule I annexed hereto for the purpose of
further delivery pursuant to this Agreement. Such Selling Shareholder
agrees that the Shares of such Selling Shareholder on deposit with the
Custodian are subject to the interests of the Company, the
Underwriters and the other Selling Shareholder, that the arrangements
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<PAGE> 14
made for such custody, and the appointment of the Attorneys-in-Fact
pursuant to the Durable Power of Attorney and Custody Agreement, are
to that extent irrevocable, and that the obligations of such Selling
Shareholder hereunder and under the Durable Power of Attorney and
Custody Agreement shall not be terminated, except as provided in this
Agreement and the Durable Power of Attorney and Custody Agreement, by
any act of such Selling Shareholder, by operation of law, whether in
the case of an individual Selling Shareholder, by the death or
incapacity of such Selling Shareholder or, in the case of a trust or
estate, by the death of the trustee or trustees or the executor or
executors or the termination of such trust or estate, or, in the case
of a partnership or corporation, by the dissolution, winding up or
other event affecting the legal life of such entity, or by the
occurrence of any other event. If any individual Selling Shareholder,
trustee or executor should die or become incapacitated, or any such
trust, estate, partnership or corporation should be terminated, or if
any other event should occur before the delivery of the Shares
hereunder, the certificates for Shares then on deposit with the
Custodian shall, to the extent such Shares are purchased by the
Underwriters, be delivered by the Custodian in accordance with the
terms and conditions of this Agreement and the Durable Power of
Attorney and Custody Agreement as if such death, incapacity,
termination or other event had not occurred, regardless of whether or
not the Custodian shall have received notice thereof. Such Selling
Shareholder represents that each Attorney-in-Fact has been authorized
by such Selling Shareholder to execute and deliver this Agreement and
the Custodian has been authorized to receive and acknowledge receipt
of the proceeds of sale of the Shares sold by such Selling Shareholder
against delivery thereof and otherwise to act on behalf of such
Selling Shareholder.
(g) Insofar as it relates to such Selling Shareholder,
each Preliminary Prospectus, as of its date, has conformed in all
material respects with the requirements of the Act and, as of its
date, has not included any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein not misleading; and on the effective date of the Registration
Statement and at all times subsequent thereto up to each Closing Date,
(i) the Registration Statement and the Prospectus, as they relate to
such Selling Shareholder, did or will conform to the requirements of
the Act, and (ii) neither the Registration Statement nor the
Prospectus as it relates to such Selling Shareholder did or will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(h) To the knowledge of each Selling Shareholder, the
representations and warranties of the Company set forth in section 2
hereof are true and correct.
A certificate signed by or on behalf of any Selling
Shareholder as such and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by such Selling
Shareholder to the Underwriters as to the matters covered thereby. A
certificate delivered by or on behalf of any Selling Shareholder to counsel
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<PAGE> 15
for the Selling Shareholders for purposes of enabling such counsel to render
the opinion referred in Section 10(e) will also be furnished to the
Representatives and counsel for the Underwriters and shall be deemed to be
additional representations and warranties to the Underwriters by such Selling
Shareholder as to the matters covered thereby.
SECTION 4. REPRESENTATION OF UNDERWRITERS. The
Representatives will act as the representatives for the several Underwriters in
connection with the public offering of the Shares, and any action under or in
respect of this Agreement taken by the Representatives will be binding upon all
of the Underwriters.
SECTION 5. INFORMATION FURNISHED BY THE UNDERWRITERS.
The information set forth in the last paragraph on the outside front cover page
of the Prospectus concerning the terms of the offering by the Underwriters, the
paragraph on the inside front cover page of the Prospectus relating to
stabilization practices and passive market making, and the schedules of
participating underwriters and the concession and reallowance amounts appearing
under the caption "Underwriting" in the Prospectus constitute all of the
information furnished to the Company by and on behalf of the Underwriters for
use in connection with the preparation of the Registration Statement and the
Prospectus, as such information is referred to in this Agreement.
SECTION 6. PURCHASE, SALE AND DELIVERY OF SHARES.
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions
herein set forth, the Company agrees to sell to the Underwriters
identified in Schedule II annexed hereto 4,000,000 Firm Shares, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company the number of Firm Shares as hereinafter set
forth at the price per share of $_______. The obligation of each
Underwriter to the Company shall be to purchase from the Company that
number of full Firm Shares which (as nearly as practicable in full
shares as determined by the Representatives) bears the same proportion
to the number of Firm Shares to be sold by the Company as the number
of shares set forth opposite the name of such Underwriter in Schedule
II annexed hereto bears to the total number of Firm Shares to be
purchased by all of the Underwriters under this Agreement.
(b) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions
herein set forth, each Selling Shareholder agrees, severally and not
jointly, to sell to the Underwriters that number of full Firm Shares
set forth opposite the name of such Selling Shareholder in Schedule I
annexed hereto (a total of 210,000 shares from both of the Selling
Shareholders), and each of the Underwriters agrees, severally and not
jointly, to purchase from each Selling Shareholder the number of Firm
Shares as hereinafter set forth at the same purchase price per share
as stated in the preceding paragraph. The obligation of each
Underwriter to each Selling Shareholder shall be to purchase from that
Selling Shareholder that number of full Firm Shares which (as nearly
as practicable in full shares as determined by the Representatives)
bears the same proportion to the number of Firm Shares to be
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<PAGE> 16
sold by such Selling Shareholder as the number of shares set forth
opposite the name of such Underwriter in Schedule II annexed hereto
bears to the total number of Firm Shares to be purchased by all of the
Underwriters under this Agreement.
(c) On the First Closing Date (as hereinafter defined),
the Company and the Custodian on behalf of the Selling Shareholders
will deliver to the Representatives, at the offices of Robert W. Baird
& Co. Incorporated, 777 East Wisconsin Avenue, Milwaukee, Wisconsin
53202, or through the facilities of The Depository Trust Company, for
the accounts of the several Underwriters, certificates representing
the Firm Shares to be sold by them against payment in Milwaukee,
Wisconsin of the purchase price therefor by certified or official bank
check or checks in New York Clearing House (next day) funds payable to
the order of the Company with respect to the Firm Shares being sold by
the Company and to the order of the Custodian with respect to the Firm
Shares being sold by the Selling Shareholders. As referred to in this
Agreement, the "First Closing Date" shall be on the third full
business day after the date of the Prospectus, at 9:00 a.m.,
Milwaukee, Wisconsin time, or at such other date or time not later
than ten full business days after the date of the Prospectus as the
Representatives, the Company and the Attorneys-in-Fact (or any of
them) may agree. The certificates for the Firm Shares to be so
delivered will be in denominations and registered in such names as the
Representatives request by notice to the Company and the
Attorneys-in-Fact, or any of them, prior to the First Closing Date,
and such certificates will be made available for checking and
packaging at 9:00 a.m., Milwaukee, Wisconsin time on the first full
business day preceding the First Closing Date at a location to be
designated by the Representatives.
(d) In addition, on the basis of the representations,
warranties and agreements herein contained, and subject to the terms
and conditions herein set forth, the Company hereby agrees to sell to
the Underwriters, and the Underwriters, severally and not jointly,
shall have the right at any time within thirty days after the date of
the Prospectus to purchase up to 631,500 Optional Shares from the
Company at the purchase price per share to be paid for the Firm
Shares, for use solely in covering any over-allotments made by the
Underwriters in the sale and distribution of the Firm Shares. The
option granted hereunder may be exercised upon notice by the
Representatives to the Company within thirty days after the date of
the Prospectus setting forth the aggregate number of Optional Shares
to be purchased by the Underwriters and sold by the Company, the names
and denominations in which the certificates for such shares are to be
registered and the date and place at which such certificates will be
delivered. Such date of delivery (the "Second Closing Date") shall be
determined by the Representatives, provided that the Second Closing
Date, which may be the same as the First Closing Date, shall not be
earlier than the First Closing Date and, if after the First Closing
Date, shall not be earlier than three nor later than ten full business
days after delivery of such notice to exercise. The number of
Optional Shares to be sold by the Company pursuant to such notice
shall equal that number of full Optional Shares which (as nearly as
practicable in full shares as determined by the Representatives) bears
the same proportion to the number of Optional
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<PAGE> 17
Shares to be purchased by the Underwriters as the number of Firm
Shares to be sold by the Company under this Agreement bears to the
total number of Firm Shares. Certificates for the Optional Shares
will be made available for checking and packaging at 9:00 a.m.,
Milwaukee, Wisconsin time, on the first full business day preceding
the Second Closing Date at a location to be designated by the
Representatives. The manner of payment for and delivery of (including
the denominations of and the names in which certificates are to be
registered) the Optional Shares shall be the same as for the Firm
Shares.
(e) The Representatives have advised the Company and the
Attorneys-in-Fact that each Underwriter has authorized the
Representatives to accept delivery of the Shares and to make payment
therefor. It is understood that the Representatives, individually and
not as representatives of the Underwriters, may (but shall not be
obligated to) make payment for any Shares to be purchased by any
Underwriter whose funds shall not have been received by the
Representatives by the First Closing Date or the Second Closing Date,
as the case may be, for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any obligation under
this Agreement. As referred to in this Agreement, "Closing Date"
shall mean either the First Closing Date or the Second Closing Date.
SECTION 7. COVENANTS OF THE COMPANY. The Company
covenants and agrees with the several Underwriters that:
(a) If the effective time of the Registration Statement
is not prior to the execution and delivery of this Agreement, the
Company will use its best efforts to cause the Registration Statement
to become effective at the earliest possible time and, upon
notification from the Commission that the Registration Statement has
become effective, will so advise the Representatives and counsel to
the Underwriters promptly. If the effective time of the Registration
Statement is prior to the execution and delivery of this Agreement and
any information shall have been omitted therefrom in reliance upon
Rule 430A, the Company, at the earliest possible time, will furnish
the Representatives with a copy of the Prospectus to be filed by the
Company with the Commission to comply with Rule 424(b) and Rule 430A
under the Act and, if the Representatives do not object to the
contents thereof, will comply with such Rules. Upon compliance with
such Rules, the Company will so advise the Representatives promptly.
The Company will advise the Representatives and counsel to the
Underwriters and the Attorneys-in-Fact promptly of the issuance by the
Commission or any state securities commission of any stop order
suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any
notification of the suspension of qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any
proceedings for that purpose, and will also advise the Representatives
and counsel to the Underwriters and the Attorneys-in-Fact promptly of
any request of the Commission for amendment or supplement of the
Registration Statement, of any Preliminary Prospectus or of the
Prospectus, or for additional information, and the Company will not
file any amendment
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<PAGE> 18
or supplement to the Registration Statement (either before or after it
becomes effective), to any Preliminary Prospectus or to the Prospectus
(including a prospectus filed pursuant to Rule 424(b)), or file any
document under the Exchange Act before the termination of the public
offering of the Shares by the Underwriters if such document would be
deemed to be incorporated by reference in the Registration Statement,
if the Representatives have not been furnished with a copy prior to
such filing (with a reasonable opportunity to review such amendment or
supplement) or if the Representatives object to such filing.
(b) If, at any time when a prospectus relating to the
Shares is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact, or
would omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to supplement the Prospectus to comply with the
Act or to file under the Exchange Act any document which would be
deemed to be incorporated by reference in the Registration Statement
to comply with the Act or the Exchange Act, the Company promptly will
advise the Representatives and counsel to the Underwriters and the
Attorneys-in-Fact thereof and will promptly prepare and file with the
Commission, at its expense, an amendment to the Registration Statement
or file such document which will correct such statement or omission or
an amendment which will effect such compliance; and, if any
Underwriter is required to deliver a prospectus after the effective
date of the Registration Statement, the Company, upon request of the
Representatives, will prepare promptly such prospectus or prospectuses
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act. The Company consents to the use, in
accordance with the provisions of the Act and with the Blue Sky Laws
of the jurisdictions in which the Shares are offered by the several
Underwriters and by dealers, of each Preliminary Prospectus.
(c) Neither the Company nor any Subsidiary will, prior to
the Second Closing Date, if any, incur any liability or obligation,
direct or contingent, or enter into any material transaction, other
than in the ordinary course of business, or enter into any transaction
with an "affiliate," as defined in Rule 405 under the Act, which is
required to be described in the Prospectus pursuant to Item 404 of
Regulation S-K under the Act, except as described in the Prospectus.
(d) Neither the Company nor any Subsidiary will, prior
to the Second Closing Date, if any, acquire any of the Common Stock
nor will the Company declare or pay any dividend or make any other
distribution upon its Common Stock payable to shareholders of record
on a date prior to such earlier date, except as described in the
Prospectus.
(e) The Company will make generally available to its
security holders and the Representatives an earnings statement as soon
as practicable, but in no event later than sixty days after the end of
its fiscal quarter in which the first anniversary of the effective
date of the Registration Statement occurs, covering a period of twelve
consecutive
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<PAGE> 19
calendar months beginning after the effective date of the Registration
Statement, which will satisfy the provisions of the last paragraph of
Section 11(a) of the Act and Rule 158 promulgated thereunder.
(f) During such period as a prospectus is required by law
to be delivered in connection with sales by an Underwriter or dealer,
the Company will furnish to the Representatives, at the expense of the
Company, copies of the Registration Statement, the Prospectus, any
Preliminary Prospectus and all amendments and supplements to any such
documents, including any document filed under the Exchange Act and
deemed to be incorporated by reference in the Registration Statement,
in each case as soon as available and in such quantities as the
Representatives may reasonably request.
(g) The Company will apply the net proceeds from the sale
of the Shares to be sold by it hereunder for the purposes set forth in
the Prospectus.
(h) The Company will cooperate with the Representatives
and counsel to the Underwriters in qualifying or registering the
Shares for sale under the Blue Sky Laws of such jurisdictions as the
Representatives designate, and will continue such qualifications or
registrations in effect so long as reasonably requested by the
Representatives to effect the distribution of the Shares. The Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such jurisdiction where
it is not presently qualified. In each jurisdiction where any of the
Shares shall have been qualified as provided above, the Company will
file such reports and statements as may be required to continue such
qualification for a period of not less than one year from the date of
the Prospectus. The Company shall promptly prepare and file with the
Commission, from time to time, such reports as may be required to be
filed by the Act and the Exchange Act, and the Company shall comply in
all respects with the undertakings given by the Company in connection
with the qualification or registration of the Shares for offering and
sale under the Blue Sky Laws.
(i) During the period of three years from the date of the
Prospectus, the Company will furnish to each of the Representatives
and to each of the other Underwriters who may so request, as soon as
available, each report, statement or other document of the Company or
its Board of Directors mailed to its shareholders or filed with the
Commission, and such other information concerning the Company as the
Representatives may reasonably request.
(j) The Company shall deliver the requisite notice of
issuance to Nasdaq and shall take all necessary or appropriate action
within its power to maintain the authorization for trading of the
Common Stock as a Nasdaq National Market security, or take such action
to authorize the Common Stock for listing on the New York Stock
Exchange or the American Stock Exchange, for a period of at least
thirty-six months after the date of the Prospectus.
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<PAGE> 20
(k) Except for the issuance and sale by the Company of
Common Stock upon exercise of presently existing outstanding stock
options, the sale of the Shares to be sold by the Company pursuant to
this Agreement, and the grant of employee stock options pursuant to
the Company's stock option plans, copies of which are filed as
exhibits to the Registration Statement, and provided that none of such
options shall be exercisable during the 90-day period herein
described, the Company shall not, for a period of 90 days after the
date of the Prospectus, without the prior written consent of Baird,
directly or indirectly, offer, sell or otherwise dispose of, contract
to sell or otherwise dispose of, or cause or in any way permit to be
sold or otherwise disposed of, any: (i) shares of Common Stock; (ii)
rights to purchase shares of Common Stock; or (iii) securities that
are convertible or exchangeable into shares of Common Stock.
(l) The Company will maintain a transfer agent and, if
required by law or the rules of Nasdaq or any national securities
exchange on which the Common Stock is listed, a registrar (which, if
permitted by applicable laws and rules, may be the same entity as the
transfer agent) for its Common Stock. The Company shall, as soon as
practicable after the date hereof, use its best efforts to obtain
listing in Standard and Poor's Stock Guide, or such other recognized
securities manuals for which it may qualify for listing, and the
Company shall use its best efforts to maintain such listings for at
least five years after the First Closing Date.
(m) If at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any rumor,
publication or event relating to or affecting the Company shall occur
as a result of which, in the opinion of Baird, the market price of the
Common Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to the Prospectus), the Company will, after written notice
from Baird advising the Company of any of the matters set forth above,
promptly consult with Baird concerning the advisability and substance
of, and, if the Company and Baird determine that it is appropriate,
disseminate a press release or other public statement responding to or
commenting on, such rumor, publication or event.
(n) If the sale to the Underwriters of the Shares is not
consummated for any reason other than termination of this Agreement
pursuant to section 13 hereof, without limiting any other rights the
Underwriters may have, the Company agrees to reimburse the
Underwriters upon demand for all out-of-pocket expenses (including
reasonable fees and expenses of counsel for the Underwriters), that
shall have been incurred by the Underwriters in connection with the
proposed purchase and sale of the Shares, and the provisions of
sections 9 and 12 hereof shall at all times be effective and apply.
(o) The Company will comply or cause to be complied with
the conditions to the obligations of the Underwriters in section 10
hereof.
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<PAGE> 21
SECTION 8. COVENANTS OF THE SELLING SHAREHOLDERS. Each
Selling Shareholder, severally and not jointly, covenants and agrees with the
several Underwriters and the Company as follows:
(a) If the effective time of the Registration Statement
is not prior to the execution and delivery of this Agreement, such
Selling Shareholder will cooperate to the extent necessary to cause
the Registration Statement to become effective at the earliest
possible time; and such Selling Shareholder will do and perform all
things to be done and performed by such Selling Shareholder prior to
each Closing Date, pursuant to this Agreement or the Durable Power of
Attorney and Custody Agreement.
(b) Such Selling Shareholder agrees to deliver to the
Custodian on or prior to the First Closing Date a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable substitute form or statement specified by Treasury
Department regulations in lieu thereof).
(c) Such Selling Shareholder will pay all federal and
other taxes, if any, on the transfer or sale of the Shares being sold
by such Selling Shareholder to the Underwriters.
(d) For a period of 90 days after the date of the
Prospectus, such Selling Shareholder will not, without the prior
written consent of Baird, directly or indirectly, offer, sell,
transfer, or pledge, contract to sell, transfer or pledge or cause or
in any way permit to be sold, transferred, pledged or otherwise
disposed of any: (i) shares of Common Stock; (ii) rights to purchase
shares of Common Stock (including, without limitation, shares of
Common Stock that may be deemed to be beneficially owned by such
Selling Shareholder in accordance with the rules and regulations of
the Commission and shares of Common Stock that may be issued upon
exercise of a stock option, warrant or other convertible security); or
(iii) securities that are convertible or exchangeable into shares of
Common Stock.
(e) Such Selling Shareholder will furnish any documents,
instruments or other information which the Representatives may
reasonably request in connection with the sale and transfer of the
Shares to the Underwriters.
SECTION 9. PAYMENT OF EXPENSES. Whether or not the
transactions contemplated hereunder are consummated or this Agreement becomes
effective, or if this Agreement is terminated for any reason, the Company will
pay the costs, fees and expenses incurred in connection with the public
offering of the Shares. Such costs, fees and expenses to be paid by the
Company include, without limitation:
(a) All costs, fees and expenses (excluding the expenses
incurred by the Underwriters and the legal fees and disbursements of
counsel for the Underwriters, but including such fees and
disbursements described in subsection (b) of this section 9)
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<PAGE> 22
incurred in connection with the performance of the Company's
obligations hereunder, including without limiting the generality of
the foregoing: the registration fees related to the filing of the
Registration Statement with the Commission; the fees and expenses
related to the quotation of the Shares on Nasdaq or other national
securities exchange; the fees and expenses of the Company's counsel,
accountants, transfer agent and registrar; the costs and expenses
incurred in connection with the preparation, printing, shipping and
delivery of the Registration Statement, each Preliminary Prospectus
and the Prospectus (including all exhibits and financial statements)
and all agreements and supplements provided for herein, this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the
Durable Power of Attorney and Custody Agreement, including, without
limitation, shipping expenses via overnight delivery and/or courier
service to comply with applicable prospectus delivery requirements;
and the costs and expenses associated with the production of materials
related to, and travel expenses incurred by the management of the
Company in connection with, the various meetings to be held between
the Company's management and prospective investors.
(b) All registration fees and expenses, including legal
fees and disbursements of counsel for the Underwriters incurred in
connection with qualifying or registering all or any part of the
Shares for offer and sale under the Blue Sky Laws and the clearing of
the public offering and the underwriting arrangements evidenced hereby
with the NASD.
(c) All fees and expenses related to printing of the
certificates for the Shares, and all transfer taxes, if any, with
respect to the sale and delivery of the Shares.
Notwithstanding the foregoing, each Selling Shareholder shall be solely
responsible for any transfer or sales tax imposed upon the transfer and sale of
such Selling Shareholder's Shares to the Underwriters and for such Selling
Shareholder's respective pro rata share of all fees and expenses of the
Attorneys-in-Fact and the Custodian. All costs and expenses incident to the
performance of any Selling Shareholder's obligations hereunder which are not
otherwise specifically provided for in this section will be borne and paid
solely by each such Selling Shareholder. In the event any Selling Shareholder
shall fail to pay such Selling Shareholder's pro rata share of the costs, fees
and expenses described in this section within five days after demand by the
Representatives therefor, the Company shall be obligated to pay such costs,
fees and expenses on demand.
SECTION 10. CONDITIONS TO THE OBLIGATIONS OF THE
UNDERWRITERS. The obligations of the several Underwriters under this Agreement
shall be subject to the accuracy of the representations and warranties on the
part of the Company and the Selling Shareholders herein set forth as of the
date hereof and as of each Closing Date, to the accuracy of the statements of
the Company's officers, the Selling Shareholders and the Attorneys-In-Fact on
behalf of the Selling Shareholders made pursuant to the provisions hereof, to
the performance by the Company and the Selling Shareholders of their respective
obligations hereunder, and to the following additional conditions, unless
waived in writing by the Representatives:
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<PAGE> 23
(a) The Registration Statement shall have been declared
effective by the Commission not later than 5:30 p.m., Washington, D.
C. time, on the date of this Agreement, or such later time as shall
have been consented to by the Representatives, which consent shall be
deemed to have been given if the Registration Statement shall have
been declared effective on or before the date and time requested in
the acceleration request submitted on behalf of the Representatives
pursuant to Rule 461 under the Act; all filings required by Rules
424(b) and 430A under the Act shall have been timely made; no stop
order suspending the effectiveness of the Registration Statement shall
have been issued by the Commission or any state securities commission
nor, to the knowledge of the Company, shall any proceedings for that
purpose have been initiated or threatened; and any request of the
Commission or any state securities commission for inclusion of
additional information in the Registration Statement, or otherwise,
shall have been complied with to the satisfaction of the
Representatives.
(b) Since the dates as of which information is given in
the Registration Statement:
(i) there shall not have occurred any change or
development involving, or which could be expected to involve,
a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business; and
(ii) the Company shall not have sustained any loss
or interference from any labor dispute, strike, fire, flood,
windstorm, accident or other calamity (whether or not insured)
or from any court or governmental action, order or decree,
the effect of which on the Company, in any such case described in
clause (i) or (ii) above, is in the opinion of the Representatives so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares on the
terms and in the manner contemplated in the Registration Statement and
the Prospectus.
(c) The Representatives shall not have advised the
Company that the Registration Statement or the Prospectus contains an
untrue statement of fact that, in the opinion of the Representatives
or counsel for the Underwriters, is material, or omits to state a fact
that, in the opinion of the Representatives or such counsel, is
material and is required to be stated therein or necessary to make the
statements therein not misleading.
(d) The Representatives shall have received an opinion of
Holland & Knight LLP, counsel for the Company addressed to the
Representatives, as the representatives of the Underwriters, and dated
the First Closing Date or the Second Closing Date, as the case may be,
to the effect that:
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<PAGE> 24
(i) The Company has been duly incorporated and is
validly existing as a corporation and whose status is active
under the laws of its jurisdiction of incorporation, with full
corporate power and authority to own, lease and operate its
properties and conduct its business as presently conducted and
as described in the Prospectus and the Registration Statement;
the Company is duly registered and qualified to do business as
a foreign corporation under the laws of, and is in good
standing as such in, each jurisdiction in which such
registration or qualification is required, except where the
failure to so register or qualify would not have a Material
Adverse Effect;
(ii) The authorized capital stock of the Company
consists of 100,000,000 shares of Common Stock, par value $.01
per share, and 15,000,000 shares of Preferred Stock, par value
$.01 per share, and all such stock conforms as to legal
matters to the descriptions thereof in the Prospectus and the
Registration Statement;
(iii) The issued and outstanding shares of capital
stock of the Company immediately prior to the issuance and
sale of the Shares to be sold by the Company hereunder have
been duly authorized and validly issued, are fully paid and
nonassessable, and there are no preemptive, preferential or,
to such counsel's knowledge, except as described in the
Prospectus, other rights to subscribe for or purchase any
shares of capital stock of the Company, and, to such counsel's
knowledge, no shares of capital stock of the Company have been
issued in violation of such rights;
(iv) Except for the Subsidiaries and the inactive
subsidiaries of the Company listed on Schedule IV attached
hereto, the Company has no subsidiaries, and the Company does
not own any equity interest in or control, directly or
indirectly, any other corporation, limited liability company,
partnership, joint venture, association, trust or other
business organization except as described in the Prospectus
and the Registration Statement; each Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with full corporate power and authority to own, lease and
operate its properties and to conduct its business as
presently conducted and as described in the Prospectus and the
Registration Statement; each Subsidiary is duly registered or
qualified to do business as a foreign corporation under the
laws of, and is in good standing as such in, each jurisdiction
in which such registration or qualification is required,
except where the failure to so register or qualify would not
have a Material Adverse Effect; the issued and outstanding
shares of the capital stock of each Subsidiary have been duly
authorized and validly issued, are fully paid and
nonassessable and there are no preemptive, preferential or, to
such counsel's knowledge, other rights to subscribe for or
purchase any shares of capital stock of any Subsidiary and, to
such counsel's knowledge, no shares of capital stock of any
Subsidiary have been
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<PAGE> 25
issued in violation of such rights; the Company owns directly
and, to such counsel's knowledge, beneficially all of the
issued and outstanding capital stock of each Subsidiary, free
and clear of any and all liens, claims, encumbrances and
security interests;
(v) The certificates for the Shares to be
delivered hereunder are in due and proper form and conform to
the requirements of applicable law; and when duly
countersigned by the Company's transfer agent, and delivered
to the Representatives or upon the order of the
Representatives against payment of the agreed consideration
therefor in accordance with the provisions of this Agreement,
the Shares to be sold by the Company represented thereby will
be duly authorized and validly issued, fully paid and
nonassessable, and free of any preemptive, preferential or
other rights to subscribe for or purchase shares of Common
Stock;
(vi) The Registration Statement has become
effective under the Act and, to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been initiated or are threatened under the Act or any
Blue Sky Laws; the Registration Statement and the Prospectus
and any amendment or supplement thereto, including any
document incorporated by reference into the Registration
Statement (except for the financial statements and other
statistical or financial data included therein as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act; the
conditions for use of Form S-3, set forth in the General
Instructions thereto, have been satisfied; to such counsel's
knowledge, there are no legal or governmental proceedings
pending or threatened, including, without limitation, any such
proceedings that are related to environmental or employment
discrimination matters, required to be described in the
Registration Statement or the Prospectus which are not so
described or which question the validity of this Agreement or
any action taken or to be taken pursuant thereto, nor, to such
counsel's knowledge, is there any transaction, relationship,
agreement, contract or other document of a character required
to be described in the Registration Statement or the
Prospectus, or required to be filed under the Exchange Act if
upon such filing they would be incorporated, in whole or in
part, by reference therein, or to be filed as an exhibit to or
incorporated by reference in the Registration Statement by the
Act, which is not described, filed or incorporated by
reference as required;
(vii) The Company has full corporate power and
authority to enter into and perform this Agreement; the
performance of the Company's obligations hereunder and the
consummation of the transactions described herein have been
duly authorized by the Company by all necessary corporate
action and this Agreement has been duly executed and delivered
by and on behalf of the Company, and is a legal, valid and
binding agreement of the Company enforceable against the
Company in accordance with its terms, except that rights
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<PAGE> 26
to indemnity or contribution hereunder may be limited by
applicable law and except as enforceability of this Agreement
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally, and by equitable principles limiting the right to
specific performance or other equitable relief; no consent,
approval, authorization or other order or decree of any
court, regulatory or governmental body, arbitrator,
administrative agency or other instrumentality of the United
States or other country or jurisdiction having jurisdiction
over the Company is required for the execution and delivery of
this Agreement or the consummation of the transactions
contemplated by this Agreement (except for compliance with the
Act, the Exchange Act, applicable Blue Sky Laws and the
clearance of the underwriting arrangements by the NASD);
(viii) The execution, delivery and performance of
this Agreement by the Company will not: (A) violate any
provisions of the Articles of Incorporation or By-laws of the
Company or any Subsidiary; (B) violate any provisions of, or
result in the breach, modification or termination of, or
constitute a default under, any agreement, lease, franchise,
license, indenture, permit, mortgage, deed of trust, other
evidence of indebtedness or other instrument to which the
Company or any Subsidiary is a party or by which the Company
or such Subsidiary, or any of their respective owned or leased
property is bound, and which is filed or incorporated by
reference as an exhibit to the Registration Statement; or (C)
violate any statute, ordinance, order, rule, decree or
regulation of any court, regulatory or governmental body,
arbitrator, administrative agency or other instrumentality of
the United States or other country or jurisdiction having
jurisdiction over the Company or any Subsidiary (assuming
compliance with all applicable federal and state securities
laws);
(ix) To such counsel's knowledge, except as
described in the Prospectus, there are no holders of Common
Stock or other securities of the Company, or securities that
are convertible or exchangeable into Common Stock or other
securities of the Company, that have rights to the
registration of such securities under the Act or any Blue Sky
Laws;
(x) The Common Stock is a National Market
security on Nasdaq and is registered under the Exchange Act;
(xi) Neither the Company nor any Subsidiary is,
nor with the giving of notice or passage of time or both would
be, in violation of its respective Articles of Incorporation
or By-laws or, to such counsel's knowledge, in default in any
material respect in the performance of any agreement, lease,
franchise, license, permit, mortgage, deed of trust, evidence
of indebtedness or other instrument, or any other document
that is filed as an exhibit to the Registration Statement, to
which the Company or any Subsidiary is subject or bound;
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<PAGE> 27
(xii) Neither the Company nor any Subsidiary is an
"investment company", an "affiliated person" of, or "promoter"
or "principal underwriter" for, an "investment company", as
such terms are defined in the Investment Company Act of 1940,
as amended, and, upon its receipt of any proceeds from the
sale of the Shares, the Company will not thereby become or be
deemed to be an "investment company" thereunder;
(xiii) The descriptions or incorporation by
reference of descriptions in the Registration Statement and
the Prospectus of statutes, laws, regulations, legal and
governmental proceedings, and contracts and other legal
documents described or incorporated by reference therein
fairly and correctly present, in all material respects, the
information required to be included therein by the Act; and
(xiv) All offers and sales by the Company of its
capital stock before the date hereof were at all relevant
times duly registered under or exempt from the registration
requirements of the Act, and were duly registered under or the
subject of an available exemption from the registration
requirements of any applicable Blue Sky Laws.
Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Company and
representatives of the Underwriters and their counsel during which the content
of the Registration Statement and the Prospectus and related matters were
discussed and reviewed, and that, although such counsel is not passing upon and
does not assume any responsibility for the accuracy, completeness or fairness
of the statements contained or incorporated by reference into the Registration
Statement or the Prospectus, on the basis of the information that was developed
in the course of the performance of such services, they have no reason to
believe that the Registration Statement including any document incorporated by
reference therein, on its effective date and as of the Closing Date, contained
or contains any untrue statement of material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, or any amendment or
supplement thereto including any document incorporated by reference therein, as
of its issue date and as of the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements and related
schedules and other financial data contained in the Registration Statement, any
amendment thereto including any document incorporated by reference therein, or
the Prospectus, or any amendment or supplement thereto including any document
incorporated by reference therein).
To the extent that any of such opinions are stated to be based upon
such counsel's knowledge or to be given "to the knowledge of such counsel,"
such qualification shall signify that no information has come to the attention
of the attorneys in such firm who have been involved in the preparation or
review of the Registration Statement or the Prospectus that would give them
actual current knowledge of the existence or absence of such matter in
question.
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In rendering such opinion, counsel for the Company may rely, to the
extent counsel deems such reliance proper, as to matters of fact upon
certificates of officers of the Company and of governmental officials, and
copies of all such certificates shall be furnished to the Representatives and
for the Underwriters on or before each Closing Date.
(e) The Representatives shall have received an opinion
from Holland & Knight LLP, counsel for the Selling Shareholders, dated
the First Closing Date or the Second Closing Date, as the case may be,
to the effect that:
(i) Each of this Agreement and the Durable Power
of Attorney and Custody Agreement has been duly authorized,
executed and delivered by or on behalf of each Selling
Shareholder and such agreement constitutes the valid and
binding agreement of such Selling Shareholder, enforceable in
accordance with its respective terms, except that rights to
indemnity or contribution thereunder may be limited by
applicable law and except as enforceability of such agreement
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws generally affecting the rights of
creditors and by equitable principles limiting the right to
specific performance or other equitable relief;
(ii) The execution and delivery of this Agreement
and the Durable Power of Attorney and Custody Agreement and
the consummation of the transactions herein and therein
contemplated will not, if applicable, result in the violation
of any provisions of the Articles of Incorporation, By-laws or
other governing documents of such Selling Shareholder, or
constitute a breach, or be in contravention, of any provision
of any agreement, franchise, license, indenture, mortgage,
deed of trust or other instrument known to such counsel to
which such Selling Shareholder is a party or by which such
Selling Shareholder or such Selling Shareholder's property may
be bound or affected, or any statute, rule or regulation
applicable to such Selling Shareholder, or violate any order
or decree of any court, regulatory or governmental body,
administrative body or instrumentality of the United States or
other jurisdiction having jurisdiction over such Selling
Shareholder or any of such Selling Shareholder's property,
which violation would reasonably be expected to have a
material adverse effect on the condition (financial or
otherwise), business, properties, net worth or results of
operations of such Selling Shareholder;
(iii) Such Selling Shareholder has full legal
right, power and authority, and has secured any consent,
approval, authorization and order known by such counsel to be
required to enter into and perform this Agreement and the
Durable Power of Attorney and Custody Agreement and to sell,
assign, transfer and deliver title to the Shares to be sold by
such Selling Shareholder as provided herein; and upon delivery
to the Underwriters or upon the order of the Representatives
against payment of the agreed consideration therefor in
accordance with the provisions of this Agreement, the
Underwriters will acquire good and marketable title to the
Shares to be sold hereunder by such Selling
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Shareholder, free and clear of all voting trust arrangements,
liens, encumbrances, security interests, equities, claims and
community or marital property rights; and
(iv) To such counsel's knowledge, the information
concerning the Selling Shareholders contained in the
Prospectus under the caption "Principal and Selling
Shareholders" complies in all material respects with the Act.
In rendering such opinion, counsel for the Selling Shareholders may
rely, to the extent counsel deems such reliance proper, as to matters of fact
upon certificates of the Selling Shareholders, and copies of all such
certificates shall be furnished to the Representatives and counsel for the
Underwriters on or before each Closing Date.
(f) The Representatives shall have received an opinion of
Foley & Lardner, counsel for the Underwriters, dated the First Closing
Date or the Second Closing Date, as the case may be, with respect to
the issuance and sale of the Shares by the Company, the Registration
Statement and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents and shall have exhibited to them such papers and records as
they reasonably request for the purpose of enabling them to pass upon
such matters.
(g) The Representatives shall have received on each
Closing Date, a certificate of David L. Dunkel, President and Chief
Executive Officer, and Thomas Calcaterra, Secretary and Chief
Financial Officer, of the Company, to the effect that:
(i) The representations and warranties of the
Company set forth in section 2 hereof are true and correct as
of the date of this Agreement and as of the date of such
certificate, and the Company has complied with all the
agreements and satisfied all the conditions to be performed or
satisfied by it at or prior to the date of such certificate;
(ii) The Commission has not issued an order
preventing or suspending the use of the Prospectus or any
Preliminary Prospectus or any amendment or supplement thereto;
no stop order suspending the effectiveness of the Registration
Statement has been issued; and to the knowledge of the
respective signatories, no proceedings for that purpose have
been initiated or are pending or contemplated under the Act or
under the Blue Sky Laws of any jurisdiction;
(iii) Each of the respective signatories has
carefully examined the Registration Statement and the
Prospectus, and any amendment or supplement thereto, including
any documents filed under the Exchange Act and deemed to be
incorporated by reference in the Registration Statement, and
such documents contain all statements required to be stated
therein, and do not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and since the date on which the Registration
Statement was initially filed, no event has occurred
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that was required to be set forth in an amended or
supplemented prospectus or in an amendment to the Registration
Statement that has not been so set forth, and there has been
no document required to be filed under the Exchange Act that
upon such filing would be deemed to be incorporated by
reference in the Registration Statement that has not been so
filed; and
(iv) Since the date on which the Registration
Statement was initially filed with the Commission, there shall
not have occurred any change or development involving, or
which could be expected to involve, a Material Adverse Effect,
whether or not arising from transactions in the ordinary
course of business, except as disclosed in the Prospectus and
the Registration Statement as heretofore amended or (but only
if the Representatives expressly consent thereto in writing)
as disclosed in an amendment or supplement thereto filed with
the Commission and delivered to the Representatives after the
execution of this Agreement; since such date and except as so
disclosed or in the ordinary course of business, the Company
has not incurred any liability or obligation, direct or
indirect, or entered into any transaction which is material to
the Company; since such date and except as so disclosed, there
has not been any change in the outstanding capital stock of
the Company, or any change that is material to the Company in
the short-term funded debt or long-term debt of the Company;
since such date and except as so disclosed, the Company has
not acquired any of the Common Stock or other capital stock of
the Company nor has the Company declared or paid any dividend,
or made any other distribution, upon its outstanding Common
Stock payable to shareholders of record on a date prior to
such Closing Date; since such date and except as so disclosed,
the Company has not incurred any material contingent
obligations, and no material litigation is pending or
threatened against the Company; and, since such date and
except as so disclosed, the Company has not sustained any
material loss or interference from any strike, fire, flood,
windstorm, accident or other calamity (whether or not insured)
or from any court or governmental action, order or decree.
The delivery of the certificate provided for in this
subsection (g) shall be and constitute a representation and warranty
of the Company as to the facts required in the immediately foregoing
clauses (i), (ii), (iii) and (iv) to be set forth in said certificate.
(h) The Representatives shall have received a certificate
from each Selling Shareholder (which may be signed by such Selling
Shareholder's Attorneys-in-Fact, or any of them), dated the First
Closing Date, to the effect that: (i) the representations and
warranties of such Selling Shareholder in Section 3 of this Agreement
are true and correct as of the date of this Agreement and as of the
date of such certificate, as if again made on and as of the First
Closing Date, and such Selling Shareholder has complied with all of
the agreements and satisfied all of the conditions to be performed or
satisfied by such Selling Shareholder at or prior to such Closing
Date; and (ii) such Selling Shareholder has no reason to believe that
the Registration Statement or any amendment thereto, including any
documents filed under the Exchange Act and deemed to be
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incorporated by reference in the Registration Statement, at the time
it was declared effective by the Commission contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as amended or
supplemented, including any documents filed under the Exchange Act and
deemed to be incorporated by reference in the Registration Statement,
contains any untrue statement of a material fact 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.
(i) At the time this Agreement is executed and also on
each Closing Date, there shall be delivered to the Representatives a
letter addressed to the Representatives, as the representatives of the
Underwriters, from both Price Waterhouse LLP, the Company's
independent accountants and UQ's independent accountants, and Frank,
Rimerman & Co. LLP, Sequent's independent accountants, the first
letter to be dated the date of this Agreement, the second letter to be
dated the First Closing Date and the third letter (if applicable) to
be dated the Second Closing Date, which letters shall be in form and
substance satisfactory to the Representatives and shall contain
information as of a date within five days of the date of such letters.
There shall not have been any change or decrease in any specified
items relating to the Company or the Subsidiaries set forth in any of
the letters referred to in this subsection (i) which makes it
impracticable or inadvisable in the judgment of the Representatives to
proceed with the public offering or purchase of the Shares as
contemplated hereby.
(j) The Shares shall have been qualified or registered
for sale under the Blue Sky Laws of such jurisdictions as shall have
been specified by the Representatives, the underwriting terms and
arrangements for the offering shall have been cleared by the NASD, and
the Common Stock shall have been designated for inclusion as a Nasdaq
National Market security on the Nasdaq Stock Market and shall have
been registered under the Exchange Act.
(k) Such further certificates and documents as the
Representatives may reasonably request (including certificates of
officers of the Company).
All such opinions, certificates, letters and documents shall
be in compliance with the provisions hereof only if they are satisfactory to
the Representatives and to Foley & Lardner, counsel for the Underwriters, each
acting reasonably under the circumstances. The Company and the Selling
Shareholders shall furnish the Representatives with such manually signed or
conformed copies of such opinions, certificates, letters and documents as the
Representatives may reasonably request.
If any condition to the Underwriters' obligations hereunder to
be satisfied prior to or at either Closing Date is not so satisfied, this
Agreement at the election of the Representatives will terminate upon
notification to the Company and the Attorneys-in-Fact, or any one of them, for
the Selling Shareholders without liability on the part of any Underwriter,
including the Representatives, the Company or the Selling Shareholders except
for the provisions
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of section 7(n) hereof, the expenses to be paid by the Company and the Selling
Shareholders pursuant to section 9 hereof and except to the extent provided in
section 12 hereof.
SECTION 11. MAINTAIN EFFECTIVENESS OF REGISTRATION
STATEMENT. The Company will use its best efforts and the Selling Shareholders
will use their best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement, and, if such stop
order is issued, to obtain as soon as possible the lifting thereof.
SECTION 12. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act or the Exchange Act, from and against any losses,
claims, damages, expenses, liabilities or actions in respect thereof
("Claims"), joint or several, to which such Underwriter or each such
controlling person may become subject under the Act, the Exchange Act, Blue Sky
Laws or other federal or state statutory laws or regulations, at common law or
otherwise (including payments made in settlement of any litigation), insofar as
such Claims arise out of or are based upon any breach of any representation,
warranty or covenant made by the Company in this Agreement, or any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or in any application filed under any Blue Sky
Law or other document executed by the Company for that purpose or based upon
written information furnished by the Company and filed in any state or other
jurisdiction to qualify any or all of the Shares under the securities laws
thereof (any such document, application or information being hereinafter called
a "Blue Sky Application") or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Company agrees
to reimburse each Underwriter and each such controlling person for any legal
fees or other expenses incurred by such Underwriter or any such controlling
person in connection with investigating or defending any such Claim; provided,
however, that the Company will not be liable in any such case to the extent
that: (i) any such Claim arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
supplement thereto or in any Blue Sky Application in reliance upon and in
conformity with the written information furnished to the Company pursuant to
section 5 of this Agreement; or (ii) such statement or omission was contained
or made in any Preliminary Prospectus and corrected in the Prospectus and (1)
any such Claim suffered or incurred by any Underwriter (or any person who
controls any Underwriter) resulted from an action, claim or suit by any person
who purchased Shares which are the subject thereof from such Underwriter in the
offering, and (2) such Underwriter failed to deliver or provide a copy of the
Prospectus to such person at or prior to the confirmation of the sale of such
Shares in any case where such delivery is required by the Act, unless such
failure was due to failure by the Company to provide copies of the Prospectus
to the Underwriters as required by this Agreement. The indemnification
obligations of the Company as provided above are in addition to and in no way
limit any liabilities the Company may otherwise have.
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(b) David L. Dunkel, personally, agrees to indemnify and
hold harmless each Underwriter and each controlling person from and against any
Claims to which such Underwriter or each such controlling person may become
subject under the Act, the Exchange Act, Blue Sky Laws or other federal or
state statutory laws or regulations, at common law or otherwise (including
payments made in settlement of any litigation), insofar as such Claims arise
out of or are based upon any breach of any representations, warranty or
covenant made by any Selling Shareholder in this Agreement.
(c) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors and each of its
officers who signs the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Act or the Exchange Act, and
each Selling Shareholder against any Claim to which the Company, or any such
director, officer, controlling person or Selling Shareholder may become subject
under the Act, the Exchange Act, Blue Sky Laws or other federal or state
statutory laws or regulations, at common law or otherwise (including payments
made in settlement of any litigation, if such settlement is effected with the
written consent of such Underwriter and Baird), insofar as such Claim arises
out of or is based upon any untrue or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any Blue Sky
Application, or arises out of or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein 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 the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any Blue Sky Application, in reliance solely upon and in conformity with
the written information furnished by the Representatives to the Company
pursuant to section 5 of this Agreement. Each Underwriter will severally
reimburse any legal fees or other expenses incurred by the Company, or any such
director, officer, controlling person or Selling Shareholder in connection with
investigating or defending any such Claim, and from any and all Claims solely
resulting from failure of an Underwriter to deliver a Prospectus, if the person
asserting such Claim purchased Shares from such Underwriter and a copy of the
Prospectus (as then amended if the Company shall have furnished any amendments
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended) would have cured the defect giving rise to such
Claim. The indemnification obligations of each Underwriter as provided above
are in addition to any liabilities any such Underwriter may otherwise have.
Notwithstanding the provisions of this section, no Underwriter shall be
required to indemnify or reimburse the Company, or any officer, director,
controlling person or Selling Shareholder in an aggregate amount in excess of
the total price at which the Shares purchased by any such Underwriter hereunder
were offered to the public, less the amount of any damages such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(d) David L. Dunkel, personally, agrees to indemnify and
hold harmless the Company, each of its directors and each of its officers who
signs the Registration Statement, and
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each person, if any, controlling the Company within the meaning of the Act or
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each Underwriter set forth in subsection (a) of this section. In case any
Claim shall be brought or asserted against the Company, its directors, such
officers or any such controlling person, in respect of which indemnity may be
sought against any Selling Shareholder, David L. Dunkel shall have the rights
and duties given to the Company, and the Company, such directors or officers
and any such controlling person shall have the rights and duties given to the
Underwriters by subsection (a) of this section.
(e) Promptly after receipt by an indemnified party under
this section of notice of the commencement of any action in respect of a Claim,
such indemnified party will, if a Claim in respect thereof is to be made
against an indemnifying party under this section, notify the indemnifying party
in writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve an indemnifying party from any liability it
may have to any indemnified party under this section or otherwise unless and to
the extent that the indemnifying party is materially prejudiced by such failure
of notification. In case any such action is brought against any indemnified
party, and such indemnified party notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate in
and, to the extent that he, she or it may wish, jointly with all other
indemnifying parties, similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and any
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to the indemnified party and/or
other indemnified parties which are different from or additional to those
available to any indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties.
(f) Upon receipt of notice from the indemnifying party to
such indemnified party of the indemnifying party's election to assume the
defense of such action and upon approval by the indemnified party of counsel
selected by the indemnifying party, the indemnifying party will not be liable
to such indemnified party under this section for any legal fees or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless:
(i) the indemnified party shall have employed separate
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the last sentence of subsection (e) of
this section (it being understood, however, that the indemnifying
party shall not be liable for the legal fees and expenses of more than
one separate counsel, approved by Baird, if one or more of the
Underwriters or their controlling persons are the indemnified
parties);
(ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a
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reasonable time after the indemnified party's notice to the
indemnifying party of commencement of the action; or
(iii) the indemnifying party has authorized the employment
of counsel at the expense of the indemnifying party.
(g) If the indemnification provided for in this section
is unavailable to an indemnified party under subsection (a), (b), (c) or (d)
hereof in respect of any Claim referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall, subject to the
limitations hereinafter set forth, contribute to the amount paid or payable by
such indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, each Selling Shareholder
and the Underwriters from the offering of the Shares; or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above, but also the relative fault of the Company, each Selling
Shareholder and the Underwriters in connection with the statements or
omissions which resulted in such Claim, as well as any other relevant
equitable considerations.
The relative benefits received by each of the Company, each
Selling Shareholder and the Underwriters shall be deemed to be in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the amount of the underwriting discounts and
commissions per share appearing on the cover page of the Prospectus bears to
the public offering price per share appearing thereon, and the Company
(including its officers and directors and controlling persons), and each of the
Selling Shareholders are responsible for the remaining portion. The relative
fault of the Company, each Selling Shareholder and the Underwriters 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, each
Selling Shareholder or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the Claims referred to above shall be deemed to include, subject to the
limitations set forth in subsections (e) and (f) of this section, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(h) The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this section were determined by pro rata or per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any other method or allocation which does not take into account the equitable
considerations referred to in subsection (g) of this section. Notwithstanding
the other provisions of this section, no Underwriter shall be required to
contribute any amount that is greater than the amount by which the total price
at which the Shares underwritten by it and distributed to the
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<PAGE> 36
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this section are several in proportion to their respective
underwriting commitments and not joint.
(i) Notwithstanding any provision of this section 12 to
the contrary, the liability of each of the Selling Shareholders arising under
this section 12 shall not exceed the purchase price received by such Selling
Shareholder from the Underwriters for the Shares sold by such Selling
Shareholder.
SECTION 13. DEFAULT OF UNDERWRITERS. It shall be a
condition to the obligations of each Underwriter to purchase the Shares in the
manner as described herein, that, except as hereinafter provided in this
section, each of the Underwriters shall purchase and pay for all the Shares
agreed to be purchased by such Underwriter hereunder upon tender to the
Representatives of all such Shares in accordance with the terms hereof. If any
Underwriter or Underwriters default in their obligations to purchase Shares
hereunder on either the First Closing Date or the Second Closing Date and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of Shares which the Underwriters are obligated to purchase on such
Closing Date, the Representatives may make arrangements for the purchase of
such Shares by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date the nondefaulting Underwriters shall
be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Shares which such defaulting Underwriters agreed but
failed to purchase on such Closing Date. If any Underwriter or Underwriters so
default and the aggregate number of Shares with respect to which such default
or defaults occur is greater than ten percent (10%) of the total number of
Shares which the Underwriters are obligated to purchase on such Closing Date,
and arrangements satisfactory to the Representatives for the purchase of such
Shares by other persons are not made within thirty-six hours after such
default, this Agreement will terminate without liability on the part of any
nondefaulting Underwriter, the Company or any Selling Shareholder except for
the expenses to be paid by the Company and the Selling Shareholders pursuant to
section 9 hereof and except to the extent provided in section 12 hereof.
In the event that Shares to which a default relates are to be
purchased by the nondefaulting Underwriters or by another party or parties, the
Representatives shall have the right to postpone the First Closing Date or the
Second Closing Date, as the case may be, for not more than seven business days
in order that the necessary changes in the Registration Statement, Prospectus
and any other documents, as well as any other arrangements, may be effected.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve
a defaulting Underwriter from liability for its default.
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<PAGE> 37
SECTION 14. EFFECTIVE DATE. This Agreement shall become
effective upon the execution and delivery of this Agreement by the parties
hereto. Such execution and delivery shall include an executed copy of this
Agreement sent by telecopier, facsimile transmission or other means of
transmitting written documents.
SECTION 15. TERMINATION. Without limiting the right to
terminate this Agreement pursuant to any other provision hereof, this Agreement
may be terminated by the Representatives prior to or on the First Closing Date
and the over-allotment option from the Company referred to in section 6 hereof,
if exercised, may be canceled by the Representatives at any time prior to or on
the Second Closing Date, if in the judgment of the Representatives, payment for
and delivery of the Shares is rendered impracticable or inadvisable because:
(a) additional governmental restrictions, not in force
and effect on the date hereof, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been
generally established on the New York Stock Exchange or the American
Stock Exchange, or trading in securities generally shall have been
suspended or materially limited on either such exchange or on The
Nasdaq Stock Market or a general banking moratorium shall have been
established by either federal or state authorities in New York,
Florida or Wisconsin;
(b) any event shall have occurred or shall exist which
makes untrue or incorrect in any material respect any statement or
information contained in the Registration Statement or which is not
reflected in the Registration Statement but should be reflected
therein to make the statements or information contained therein not
misleading in any material respect; or
(c) an outbreak or escalation of hostilities or other
national or international calamity or any substantial change in
political, financial or economic conditions shall have occurred or
shall have accelerated to such extent, in the judgment of the
Representatives, as to have a material adverse effect on the financial
markets of the United States, or to make it impracticable or
inadvisable to proceed with completion of the sale of and payment for
the Shares as provided in this Agreement.
Any termination pursuant to this Section shall be without
liability on the part of any Underwriter to the Company or any Selling
Shareholder, or on the part of the Company or any Selling Shareholder to any
Underwriter, except for expenses to be paid by the Company and the Selling
Shareholders pursuant to section 9 hereof or reimbursed by the Company pursuant
to section 7(n) hereof and except as to indemnification to the extent provided
in section 12 hereof.
SECTION 16. REPRESENTATIONS AND INDEMNITIES TO SURVIVE
DELIVERY. The respective indemnities, agreements, representations, warranties,
covenants and other statements of the Company, of its officers or directors, of
the Selling Shareholders, and of the several
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<PAGE> 38
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, Selling Shareholder or the Company or any of its or their
partners, officers, directors or any controlling person, as the case may be,
and will survive delivery of and payment for the Shares sold hereunder.
SECTION 17. NOTICES. All communications hereunder will
be in writing and, if sent to the Representatives, will be mailed, delivered,
telecopied (with receipt confirmed) or telegraphed and confirmed to Robert W.
Baird & Co. Incorporated at 777 East Wisconsin Avenue, Milwaukee, Wisconsin
53202, Attention: Brenton H. Rupple, Jr., with a copy to Benjamin F. Garmer,
III, Esq. Foley & Larder, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53217
and if sent to the Company, will be mailed, delivered, telecopied (with receipt
confirmed) or telegraphed and confirmed to the Company at 120 West Hyde Park
Place, Suite 150, Tampa, Florida 33606, Attention: President, with a copy to
Michael L. Jamieson, Esq., Holland & Knight LLP, 400 North Ashley, Suite 2300,
Tampa, Florida, 33602; and, if sent to the Selling Shareholders, will be
mailed, delivered, telecopied (with receipt confirmed) or telegraphed and
confirmed to the Attorneys-in-Fact, or either of them, in care of the Company,
with copies to Michael L. Jamieson, Esq., Holland & Knight LLP, 400 North
Ashley, Suite 2300, Tampa, Florida, 33602.
SECTION 18. SUCCESSORS. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors, personal representatives and assigns, and to the benefit of the
officers and directors and controlling persons referred to in section 12 hereof
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
SECTION 19. PARTIAL UNENFORCEABILITY. If any section,
paragraph, clause or provision of this Agreement is for any reason determined
to be invalid or unenforceable, such determination shall not affect the
validity or enforceability of any other section, paragraph clause or provision
hereof.
SECTION 20. APPLICABLE LAW; COUNTERPARTS. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of Wisconsin without reference to conflict of law principles thereunder.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument, and shall be effective when at least
one counterpart hereof shall have been executed by or on behalf of each party
hereto.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding
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<PAGE> 39
agreement among the Company, each of the Selling Shareholders and the several
Underwriters, including the Representatives, all in accordance with its terms.
Very truly yours,
ROMAC INTERNATIONAL, INC.
By:
-----------------------------------
David L. Dunkel, President
THE SELLING SHAREHOLDERS:
By:
-----------------------------------
Attorney-in-Fact
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
ROBERT W. BAIRD & CO. INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES, INC.
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
By: ROBERT W. BAIRD & CO. INCORPORATED
Acting as Representatives of the several
Underwriters (including themselves) identified
in Schedule II annexed hereto.
By:
------------------------------------------------
Authorized Representative
-39-
<PAGE> 40
ROMAC INTERNATIONAL, INC.
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF FIRM NUMBER OF OPTIONAL
SHARES SHARES
------- ------
<S> <C> <C>
The Company: 4,000,000 631,500
The Selling Shareholders:
David L. Dunkel 200,000 --
Sacred Heart Church 10,000 --
</TABLE>
<PAGE> 41
ROMAC INTERNATIONAL, INC.
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF FIRM
SHARES TO
NAME OF UNDERWRITER BE PURCHASED
------------------- ------------
<S> <C>
Robert W. Baird & Co. Incorporated . . . . . . . . . . . . . . . . .
NationsBanc Montgomery Securities, Inc. . . . . . . . . . . . . . . .
Prudential Securities Incorporated . . . . . . . . . . . . . . . . .
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . . . .
---------
4,210,000
=========
</TABLE>
<PAGE> 1
EXHIBIT 5
[HOLLAND & KNIGHT LLP LETTERHEAD]
October 28, 1997
Romac International, Inc.
120 West Hyde Park Place
Suite 200
Tampa, Florida 33606
Re: Registration Statement on Form S-3
(File No. 333-37455)
Gentlemen:
We refer to the Registration Statement (the "Registration Statement") on
Form S-3 (File No. 333-37455), filed by Romac International, Inc. (the
"Company"), with the Securities and Exchange Commission, for the purpose of
registering under the Securities Act of 1933 (the "Securities Act") an amount
up to 4,631,500 shares (the "Company Shares") of the authorized common stock,
par value $.01 per share, of the Company being offered to the public by the
Company and 210,000 shares to be offered by Selling Shareholders, David L.
Dunkel and Sacred Heart Church (the "Selling Shareholders") pursuant to an
underwriting agreement (the "Underwriting Agreement"), between the Company, the
Selling Shareholders, and Robert W. Baird & Co. Incorporated, NationsBanc
Montgomery Securities, Inc., Prudential Securities Incorporated and Smith
Barney Inc., as representatives of the underwriters.
In connection with the registration, we have acted as counsel for the
Company, and have examined originals, or copies certified to our satisfaction,
of all such corporate records of the Company, certificates of public officials
and representatives of the Company, and other documents as we deemed it
necessary to require as a basis for the opinion expressed below.
Based upon the foregoing, and having regard for legal considerations that
we deem relevant, it is our opinion that the Company Shares will be, when and
if sold in accordance with the Underwriting Agreement, duly authorized, legally
issued and fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement, and to the reference to this firm under the caption
"Legal Matters" contained in the prospectus filed as part of the Registration
Statement. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act.
Very truly yours,
HOLLAND & KNIGHT
By: /s/ Robert J. Grammig
----------------------------
Robert J. Grammig
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Amendment No. 1 of the Registration Statement on Form
S-3 of our report dated February 7, 1997, appearing on page 28 of Romac
International, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1996. We also consent to the incorporation by reference of our report dated
February 7, 1997 on the Financial Statement Schedule listed in Item 14(a) of
this Form 10-K. We also consent to the incorporation by reference of our report
on the financial statements of Uni*Quality Systems Solutions, Inc. dated
October 14, 1997, which appears on page 4 of the Current Report on Form 8-K/A of
Romac International, Inc. dated September 5, 1997. We also consent to the
references to us under the headings "Experts" in such Prospectus.
Price Waterhouse LLP
Tampa, Florida
October 28, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
Romac International, Inc.
Tampa, Florida
We hereby consent to the use of our report dated March 12, 1997 on the
financial statements of Sequent Associates, Inc. as of and for the year ended
December 31, 1996, included in Form 8K/A filed by Romac International, Inc. and
incorporated by reference in Form S-3 filed by Romac International, Inc.
FRANK, RIMERMAN & CO. LLP
San Jose, California
October 29, 1997
