<PAGE> 1
As filed with the Securities and Exchange Commission on February 5, 1998
REGISTRATION NO. 333-42345
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRANSMATION, INC.
(Exact name of Registrant as specified in its charter)
OHIO 16-0874418
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10 VANTAGE POINT DRIVE
ROCHESTER, NEW YORK 14624
(716) 352-7777
(Address, including zip code, and telephone number,
including area code, of Registrant's
principal executive offices)
ROBERT G. KLIMASEWSKI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TRANSMATION, INC.
10 VANTAGE POINT DRIVE
ROCHESTER, NEW YORK 14624
(716) 352-7777
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Susan Mascette Brandt, Esq.
Harter, Secrest & Emery LLP
700 Midtown Tower
Rochester, New York 14604-2070
(716) 232-6500
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. [ ]
<PAGE> 2
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 3
PROSPECTUS
762,524 SHARES OF COMMON STOCK
TRANSMATION, INC.
All of the 762,524 shares of Common Stock, par value $.50 per share (the
"Common Stock"), of Transmation, Inc., an Ohio corporation ("Transmation" or the
"Company"), offered hereby (the "Shares") are being offered for the account of a
certain shareholder of the Company (the "Selling Shareholder"). The Company will
receive none of the proceeds from the sale of the Shares.
The Common Stock is listed on the Nasdaq National Market System (the
"Nasdaq") under the symbol "TRNS." On February 2, 1998, the closing price of
the Common Stock on the Nasdaq was $8.00 per share.
The Shares may be sold by the Selling Shareholder in transactions on the
Nasdaq at prices and on terms related to the then current market price of the
Common Stock, in privately negotiated transactions at such prices as may be
agreed upon, or in a combination of such methods of sale. In connection with any
sales, the Selling Shareholder and any brokers or dealers participating in such
sales may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"). See "Plan of Distribution."
The Company will pay all fees and expenses incident to the registration
of the Shares offered hereby, other than the following expenses which will be
borne by the Selling Shareholder: discounts and commissions payable to brokers
or dealers in respect of sales of the Shares, stock transfer taxes and (except
to the extent covered by a certain expense reimbursement obligation of the
Company) the expenses of the Selling Shareholder's counsel, accountants and
other advisors. See "Plan of Distribution" and "Selling Shareholder."
SEE "RISK FACTORS" STARTING ON PAGE 3 FOR A DISCUSSION OF CERTAIN
FACTORS TO BE CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
===========================================================================================
Price to Public Placement Agent Fees(1) Proceeds to Selling Shareholder
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share $7.125 $0.405 $6.72
- -------------------------------------------------------------------------------------------
Total $5,432,984 $308,822 $5,124,162
===========================================================================================
</TABLE>
(1) The Shares initially will be offered for sale by the Selling Shareholder
through Joseph Charles and Associates, Inc. as Placement Agent (the
"Placement Agent"), pursuant to a placement agency agreement. The
Placement Agent is not obligated to place any minimum number of Shares.
Except in the placement of the Shares to others, the Placement Agent is
not obligated to and does not intend to purchase any of the Shares
offered hereby. On the basis of a price to the public of $7.125 per share
as specified above, the Selling Shareholder has agreed to pay the
Placement Agent the fee specified above as the selling commission or
discount. The Selling Shareholder and the Company have each agreed to
indemnify the Placement Agent against certain liabilities, including
liabilities under the Securities Act. See "Plan of Distribution."
The date of this Prospectus is February 5, 1998.
<PAGE> 4
NO PERSON IS AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, AND ANY INFORMATION OR REPRESENTATION NOT
CONTAINED OR INCORPORATED BY REFERENCE HEREIN MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLDER. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices at 7 World Trade Center, Suite 1300, New
York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can also be obtained from the Commission at
prescribed rates through its Public Reference Section at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission maintains a Website (http://www.sec.gov)
that contains reports, proxy statements and other information required of
registrants, such as the Company, that file electronically with the Commission.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act with respect to the Common Stock offered
hereby (including all amendments or supplements thereto, the "Registration
Statement"). This Prospectus, which forms a part of the Registration Statement,
does not contain all the information set forth in the Registration Statement,
certain parts of which have been omitted in accordance with the rules and
regulations of the Commission. Statements contained herein concerning the
provisions of certain documents are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
<PAGE> 5
THE COMPANY
Transmation, Inc., an Ohio corporation organized in 1964, is primarily
engaged in the sale and distribution, development, manufacture and service of
electronic instrumentation which is used principally for measurement, indication
and transmission of information. The principal products sold and serviced by
Transmation fall within two main categories:
- Test, measurement and calibration equipment - Instruments used
for calibrating, measuring and testing many physical parameters
in industry and science. These products are manufactured by
Transmation or by other manufacturers and are distributed and
serviced by Transmation.
- Process monitoring instrumentation - A line of instrumentation
which measures low level signals, proportional to some parameter
such as temperature, and then amplifies the measurement to permit
transmission to a receiving device which may be used to alter the
process or trigger an alarm. Certain of these products may be
used to monitor one or more points of a process by multiplexing
information into one or more digital devices. These products are
manufactured, distributed and serviced by Transmation.
Products and services sold range in price from approximately $100 for a single
calibration service to more than $200,000 for a large multiplexing system.
The principal market for Transmation's products and services is within
the process industry and is primarily directed to the petroleum refining and
chemical manufacturing industries, and secondarily to the pulp and paper, gas
pipeline and primary metals industries. Transmation's sales are accomplished
through a catalog distribution division, the Transcat/EIL Division
("Transcat/EIL"), a manufacturing division, the Instrument Division, a
manufacturing subsidiary, Altek Industries Corp. ("Altek"), and four foreign
sales subsidiaries.
Sales of test, measurement and calibration equipment and services are
principally made through Transcat/EIL, which sells through a catalog distributed
to existing and prospective customers, and through direct salespeople in
selected locations in the United States and Canada. Transcat/EIL sells
Transmation-manufactured products and resells the products of approximately 200
other manufacturers through an annual catalog, which is currently approximately
550 pages. To date, more than one million catalogs have been distributed through
this part of Transmation's sales and marketing effort. In addition to the annual
catalog, Transcat/EIL makes periodic mailings to existing and prospective
customers to spur additional sales as well as to generate names for future
catalog or product mailings.
In addition to catalog sales, Transmation engages in direct sales of
test, measurement and calibration equipment and services as well as process
monitoring instrumentation. The Company employs over 30 direct sales people in
Transcat/EIL and four sales managers in the Instrument Division and Altek. Two
sales people are employed in Australia to manage Far Eastern sales
representative or distributor organizations and to direct sell in Australia. The
Company also maintains one regional sales manager in Singapore. In addition, the
Company has arrangements with over 65 sales representative and
distributor organizations, each employing one or
<PAGE> 6
more sales engineers, located in other areas of concentrated demand for
Transmation's products in the United States, Canada, the Far East, Central and
South America, Australia, the Middle East and Eastern and Western Europe. These
sales representatives and distributors either promote Transmation's products on
a commission basis or purchase them from Transmation at a discount and resell to
end users at a gross price.
The Company's Transcat/EIL CalXPress operations, which are ISO 9002
registered, provide periodic calibration and repair services for customers
owning instrumentation manufactured by others and by Transmation. At December
31, 1997, there were Transcat/EIL CalXPress facilities in 14 locations in the
United States and Canada.
The Company's two manufacturing operations, both located in Rochester,
New York, primarily develop, manufacture and sell electronic and pneumatic
instrumentation used to calibrate and test instrumentation used primarily in the
process industries. The Instrument Division's facility has ISO 9001
registration.
The Company's value added operations, which customize, modify and repair
analog gauges, are located in Dayton, Ohio, Buffalo, New York and Baltimore,
Maryland.
Since the beginning of the last fiscal year, Transmation has expanded
its business through two acquisitions:
ALTEK ACQUISITION. In April 1996 the Company acquired all of the
stock of Altek, a manufacturer of electronic calibration equipment, for cash and
notes aggregating $4.8 million, and 300,000 shares of Common Stock. As a result
of this acquisition, the Company's sales have increased by more than $5 million
annually.
EIL ACQUISITION. In April 1997 the Company acquired substantially
all of the assets of the Sales and Service Division of E.I.L. Instruments, Inc.,
a distributor and servicer of electronic test, measurement and calibration
instrumentation, for $22 million in cash and the value of certain assumed
liabilities (subject to post-closing adjustment). As a result of this
acquisition, the Company has added a significant base of potential new
customers, a value added meter modification business and several new product
lines, and has significantly increased its overall capabilities to provide
repair, calibration and certification services.
Transmation's future performance will depend substantially on its
ability to integrate and manage its acquired businesses and operations, to
respond to competitive developments, to further develop markets for its products
and services, to anticipate future customer needs and to provide solutions for
customers in a timely, cost-effective manner.
The Company's principal executive offices are located at 10 Vantage
Point Drive, Rochester, New York 14624. Its telephone number is (716) 352-7777.
FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated herein by reference may
contain forward- looking statements based on current expectations, estimates and
projections about Transmation's industry, management's beliefs and assumptions
made by management. Words such as "antici-
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pates," "expects," "intends," "plans," "believes," "seeks," "estimates,"
variations of such words and similar expressions are intended to identify such
forward-looking statements. These statements are not guarantees of future
performance and are subject to certain risks, uncertainties and assumptions that
are difficult to forecast. Therefore, actual results may differ materially from
those expressed or forecast in any such forward-looking statements. Such risks
and uncertainties include, in addition to those set forth herein under "Risk
Factors," those noted in the documents incorporated herein by reference.
Transmation undertakes no obligation to update publicly any forward-looking
statements, whether as a result of new information, future events or otherwise.
RISK FACTORS
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE FACTORS SET FORTH
BELOW, IN ADDITION TO THE OTHER INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, IN EVALUATING AN INVESTMENT IN THE COMMON STOCK
OFFERED HEREBY.
INTEGRATION OF ACQUISITIONS AND MANAGEMENT OF GROWTH. Since April 1,
1996, the Company has acquired one manufacturing business and one business
engaged in the distribution and service of products. See "The Company." This has
resulted in a 150% increase in the Company's work force, the addition of one
manufacturing facility, the addition of three value added operations and the
addition of ten service facilities. The Company is in the process of integrating
the acquired operations and efforts are underway to assimilate into Transmation
the products and services formerly sold independently by the acquired
businesses, their operations, corporate cultures, product lines, personnel,
management information systems, financial control systems, facilities
infrastructure and customer relationships. There can be no assurance that the
Company will be successful in these efforts. If the Company is unable to
integrate and manage all of the elements of these acquisitions effectively and
efficiently, it could have a material adverse effect on the Company's business,
prospects, results of operations and financial condition.
In addition, if the Company continues to experience rapid growth,
a significant strain may be placed on its financial, management and other
resources. The Company's ability to manage growth effectively will require it to
continue to improve its operational and financial control systems,
infrastructure and management information systems, and to attract, train,
motivate, manage and retain key employees. There can be no assurance that the
Company will be successful in doing so. If the Company is not able to manage
growth effectively, there could be a material adverse effect on the Company's
business, prospects, results of operations and financial condition.
COMPETITION. The market to which the Company sells the products it
manufactures is highly competitive, and the Company expects that competition
will increase in the future. Failure to keep pace with rapid technological
advances, which characterize the industry, could adversely affect the Company's
competitive position with respect to the products it manufactures and the way it
distributes its products. In its manufacturing operations, the Company competes
on the basis of price, performance, inventory availability, quality, reliability
and customer service and support. To maintain its competitive position with
respect to manufactured product, the Company must continue to develop new
products, periodically enhance its existing products,
3
<PAGE> 8
reduce its cost of manufacturing such products, maintain the quality of its
products and compete effectively in the areas described above. Although the
Company believes that its products are competitive in each of the
above-described areas, there can be no assurance that existing or future
competitors, some of which have greater financial resources than the Company,
will not introduce comparable or superior products incorporating more advanced
technology at lower prices. The Company's competitors are numerous, ranging from
large corporations to many relatively small and highly specialized firms.
Although no single company competes in all of the Company's product markets,
some of the major competitors which compete in the Company's individual product
markets include Fluke Corporation, Beta (a division of Hathaway Corporation) and
certain divisions of Ametek Corporation. Some of these competitors have more
extensive sales, distribution, engineering, manufacturing and/or marketing
capabilities and substantially greater financial, technological and personnel
resources than does the Company.
The markets to which the Company through Transcat/EIL sells
products and related services is also highly competitive. Competition for sales
in distribution and service is quite fragmented and ranges from large, well
financed national distributors to small local distribution organizations and
service providers, as well as the manufacturers of the products themselves.
Transcat/EIL competes on the basis of price, inventory availability, service
quality and customer service and support. To maintain its competitive position
with respect to such products and services, the Company must continually
demonstrate to customers its commitment to achieving the highest level of
performance possible for a distributor and compete effectively in the areas
described above. There can be no assurance that the Company will be successful
in doing so.
DEPENDENCE ON SUPPLIERS. Products required for Transcat/EIL's sales are
generally available from only one source per product (the manufacturer),
although on occasion substitutions of product are possible. If the Company's
source for a particular product is unable to deliver such product or delivers
product of unacceptable or unusable quality, the Company may have no acceptable
alternative product to satisfy customers' demands. In such event, customers may
choose to order products through competitors of the Company, which could have a
material adverse effect on the Company's business, prospects, results of
operations and financial condition.
In addition, a portion of the Company's manufacturing operations
is dependent on the ability of suppliers to deliver completed products,
sub-assemblies or components in time to meet critical distribution and
manufacturing schedules. In certain instances, important parts and components
are available through fewer suppliers than the Company deems suitable. In the
event that certain of the Company's suppliers should fail to deliver components
to the Company or deliver components of an unacceptable or unusable quality,
delays in the production of the Company's products could result, which in turn
could have a material adverse effect on the Company's business, prospects,
results of operations and financial condition.
FOREIGN SALES. A significant portion of Transmation's sales are
generated outside of the United States, primarily as the result of sales of
products distributed through the Transcat/EIL catalog. Approximately 27.8% of
Transmation's sales in the fiscal year ended March 31, 1997 resulted from sales
in foreign countries, as compared with 20.7% of sales in the fiscal year ended
March 31, 1996 and 22.7% of sales in the fiscal year ended March 31, 1995.
Management believes that until recently, the relatively lower value of the
dollar compared to foreign
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<PAGE> 9
currencies has had a positive effect on international sales. However, increased
strength of the dollar, particularly compared to currencies of Pacific Rim
countries, could negatively affect future international sales. In addition,
Transmation's revenues are subject to the customary risks of operating in an
international environment, including the potential imposition of trade or
foreign exchange restrictions, tariff and other tax increases, fluctuations in
exchange rates and unstable political situations, any one or more of which could
have a material adverse effect on the Company's business, prospects, results of
operations and financial condition.
ABILITY TO RESPOND TO RAPID CHANGE. The Company's future success will
depend in part on its ability to enhance its current products and develop or
acquire and market new products which keep pace with technological developments
and evolving industry standards as well as respond to changes in customer needs.
The market for the Company's products is characterized by rapidly changing
technology, evolving industry standards and customer demands, and frequent new
product introductions and enhancements. The Company will be required to manage
its strategic position effectively in a rapidly changing environment. There can
be no assurance that the Company will be successful in developing or acquiring
product enhancements or new products to address changing technologies and
customer requirements adequately, that it will introduce such products on a
timely basis, or that any such products or enhancements will be successful in
the marketplace. The Company's delay or failure to develop or acquire
technological improvements or to adapt its products to technological change
could have a material adverse effect on the Company's business, prospects,
results of operations and financial condition.
DEPENDENCE UPON KEY PERSONNEL. The Company's success depends in part
upon the retention of key senior management and technical personnel,
particularly Robert G. Klimasewski, its President and Chief Executive Officer,
and Eric W. McInroy, its Executive Vice President and Chief Operating Officer.
The loss of the services of any of the Company's key personnel could have a
material adverse effect on the Company's business, prospects, results of
operations and financial condition.
ABILITY TO ATTRACT QUALIFIED PERSONNEL. The Company believes that its
future success also depends upon its ability to attract and retain additional
highly skilled technical, professional, management and sales and marketing
personnel. The market for skilled employees has historically been, and the
Company expects that it will continue to be, intensely competitive. The
Company's inability to attract and retain qualified employees could have a
material adverse effect on the Company's business, prospects, results of
operations and financial condition.
DEPENDENCE ON NEW PRODUCTS AND TECHNOLOGICAL CHANGE. The Company
participates in markets where the timely introduction of new products is
critical to the success and market acceptance of such products. The Company's
new product development programs are subject to delays due to unforeseen
complexities in product design that arise during the development process. When
encountered, these complexities may cause delays in product introductions or
costly design modifications which could have a material adverse effect on the
Company's business, prospects, results of operations and financial condition.
PRODUCT RECALLS, POTENTIAL LIABILITY AND INSURANCE. Many of the
instruments which the Company designs and manufacturers are used in the
petroleum refining and chemical manufacturing industries. The tolerance for
error in the design, manufacture or use of these products
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may be small or non-existent. If an instrument designed or manufactured by the
Company is found to be defective, whether due to design or manufacturing
defects, improper use of the product or other reasons, the instrument may need
to be recalled, possibly at the Company's expense. Furthermore, the adverse
effect of a product recall on the Company might not be limited to the cost of
the recall on the Company. Recalls, especially if accompanied by unfavorable
publicity or termination of customer contracts, could result in substantial
costs, loss of revenues and diminution of the Company's reputation, each of
which could have a material adverse effect on the Company's business, prospects,
results of operations and financial condition. In addition, the manufacture and
sale of the instruments manufactured by the Company also involves the risk of
product liability claims. The Company evaluates its insurance coverage from time
to time in view of developments in its business and products currently under
development. Product liability insurance is expensive and, in the future, may
not be available on acceptable terms, in sufficient amounts, or at all. A
successful claim brought against the Company in excess of its insurance coverage
or any material claim for which insurance coverage is denied or limited could
have a material adverse effect on the Company's business, prospects, results of
operations and financial condition.
DEPENDENCE ON PROPRIETARY RIGHTS. The Company's success and ability to
compete depends in part upon protecting its proprietary rights in its products,
its name and its trade names. There can be no assurance that the measures taken
by the Company will be adequate to deter misappropriation of its products, its
name and its trade names or independent third-party development of its products,
or that its intellectual property rights can be successfully enforced or
defended if challenged. Given the continuing development of technology, there
can be no assurance that certain aspects of the Company's products do not or
will not infringe upon the existing or future proprietary rights of others or
that, if licenses or rights are required to avoid infringement, such licenses or
rights could be obtained or obtained on terms that would not have a material
adverse effect on the Company, if at all.
ENVIRONMENTAL REGULATION. The Company's operations are subject to
federal, state, local and foreign laws and regulations governing, among other
things, emissions to air, discharge to waters and the generation, handling,
storage, transportation, treatment and disposal of waste and other materials.
The Company believes that its business, operations and facilities have been and
are being operated in compliance in all material respects with applicable
environmental and health and safety laws and regulations, many of which provide
for substantial fines and criminal sanctions for violations. However, the
operation of manufacturing facilities entails risks in these areas and there can
be no assurance that the Company will not incur material costs or liabilities.
In addition, potentially significant expenditures could be required in order to
comply with evolving environmental and health and safety laws, regulations or
requirements that may be adopted or imposed in the future.
LIMITATIONS ON TAKEOVERS. Certain provisions of the Company's Articles
of Incorporation and Bylaws may have the effect of discouraging a third party
from making an acquisition proposal for the Company and may thereby inhibit a
change in control of the Company under circumstances that could give the
shareholders the opportunity to realize a premium over the then-prevailing
market prices. Specifically, mergers and certain other corporate actions with a
10% shareholder of the Company require the approval of 75% of the Common Stock
entitled to vote, and the Company's Board of Directors is divided into three
classes, with the members
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of each class serving for staggered three-year terms. See "Provisions With
Possible Anti-Takeover Effects."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
(Commission File No. 0-3905) pursuant to the Exchange Act are incorporated
herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1997;
(2) the Company's Current Report on Form 8-K dated April 4, 1997;
(3) the Company's Current Report on Form 8-K dated June 19, 1997;
(4) the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997;
(5) the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997; and
(6) all other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of this
offering of the Shares.
Any statement contained herein or in a document or information
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document which also is,
or is deemed to be, incorporated by reference herein, modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY AND ALL OF THE FOREGOING DOCUMENTS AND INFORMATION THAT HAVE BEEN
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, OTHER THAN EXHIBITS TO SUCH
DOCUMENTS (UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO
SUCH DOCUMENTS). REQUESTS THEREFOR SHOULD BE DIRECTED TO JOHN A. MISIASZEK, VICE
PRESIDENT - FINANCE, TRANSMATION, INC., 10 VANTAGE POINT DRIVE, ROCHESTER, NEW
YORK 14624; TELEPHONE (716) 352-7777.
SELLING SHAREHOLDER
The following table sets forth certain information with respect to the
beneficial ownership of Common Stock, as of December 31, 1997 and as adjusted
to reflect the sale of all of the Shares
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offered hereby, by the Selling Shareholder. The Selling Shareholder has advised
the Company that he has sole voting and investment power with respect to all of
the Shares beneficially owned by him.
<TABLE>
<CAPTION>
COMMON STOCK NUMBER OF COMMON STOCK
BENEFICIALLY OWNED BEFORE SHARES BEING BENEFICIALLY OWNED AFTER
THE OFFERING OFFERED THE OFFERING (1)
------------ ------- ----------------
SELLING NO. OF PERCENT NO. OF PERCENT
SHAREHOLDER SHARES OF CLASS SHARES OF CLASS
----------- ------ -------- ------ --------
<S> <C> <C> <C> <C> <C>
William J. Berk 762,524 13.3% 762,524 0 0
</TABLE>
(1) Assumes that all Shares being offered are sold.
The Selling Shareholder was the Company's founder. He served as the
Company's President and Chief Executive Officer from 1964 until June 1994, and
as a director of the Company from 1964 until June 1996. He is now retired.
Pursuant to a Consulting Agreement with the Selling Shareholder dated
April 1, 1979 and amended April 1, 1990, the Company has agreed to retain him as
a consultant for 20 years commencing March 1, 1995, to pay him $30,000 a year
for the first ten years and $20,000 a year for the remainder, and to provide him
with certain fringe benefits, including reimbursement for medical expenses up to
$10,000 annually and for accounting and legal expenses up to $10,000 annually.
In addition, pursuant to a Disability, Supplemental Death Benefit and Retirement
Agreement with the Selling Shareholder dated April 1, 1979 and amended April 1,
1990, the Company has agreed to make annual payments to him, commencing March 1,
1995 and continuing for the rest of his life, in the amount of $96,456. Upon the
Selling Shareholder's death, his wife will be paid 60% of that amount annually
for the rest of her life. The payments due under this agreement are not insured
or funded nor are any assets segregated for the benefit of the Selling
Shareholder or his wife.
In addition, pursuant to a Stock Registration and Repurchase Agreement
with the Selling Shareholder dated April 1, 1979 and amended April 1, 1990 and
December 12, 1997, during the Selling Shareholder's lifetime and for five years
after his death, the Selling Shareholder and his estate have "piggyback"
registration rights, at the Company's expense (with certain exceptions), with
respect to all of his shares of Common Stock. In addition, within five years
after the Selling Shareholder's death, his estate has a one-time demand
registration right with respect to all of his shares of Common Stock and, at the
request of the Selling Shareholder's estate, the Company must, subject to
certain exceptions, redeem from his estate the maximum number of shares
permitted by section 303 of the Internal Revenue Code, at the market value of
the Common Stock at the time of his death. The Company and the Selling
Shareholder have also agreed to indemnify each other against certain
liabilities, including certain liabilities under the Securities Act. The Selling
Shareholder's rights under this agreement are personal to him and his estate,
and are not assignable or transferable to purchasers of the Shares pursuant to
this Prospectus. The Selling Shareholder's registration and redemption rights
under this agreement will be terminated upon the Selling Shareholder's sale of
all of the Shares as contemplated hereby.
8
<PAGE> 13
PLAN OF DISTRIBUTION
The Shares are being sold by the Selling Shareholder. The Company will
receive none of the proceeds from sales of the Shares. Sales may be made by the
Selling Shareholder on the Nasdaq at prices and on terms related to the then
current market price of the Common Stock, in privately negotiated transactions
at such prices as may be agreed upon, or in a combination of such methods of
sale. The Shares may be sold by the Selling Shareholder by any one or more of
the following methods:
(a) a block trade in which the broker or dealer so engaged will
attempt to sell the Shares as agent, but may position and resell
a portion of a block as principal to facilitate the transaction;
(b) purchases by a broker or dealer as principal, and resale by such
broker or dealer, for its account, pursuant to this Prospectus;
(c) ordinary open market brokerage transactions;
(d) transactions in which a broker or dealer solicits purchasers; and
(e) privately negotiated transactions.
The Selling Shareholder may effect such transactions by selling the
Shares to or through brokers or dealers, who may act as agent or principal. In
effecting sales, brokers and dealers engaged by the Selling Shareholder or by
the purchasers of Shares may arrange for other brokers or dealers to
participate. Such brokers or dealers may receive discounts, concessions or
commissions from the Selling Shareholder and/or purchasers of Shares for whom
such broker or dealer may act as agent or to whom such broker or dealer may sell
as principal, or both. Such discounts, concessions or commissions from the
Selling Shareholder or from such purchasers may be in excess of those customary
in the types of transactions involved.
The Selling Shareholder and such brokers and dealers who act in
connection with the sale of the Shares may be deemed to be "underwriters" within
the meaning of the Securities Act, and any discounts, concessions or commissions
received by them and any profit on any resale of the Shares as principal may be
deemed to be underwriting discounts and commissions under the Securities Act.
In addition, any Shares covered by this Prospectus may be sold by the
Selling Shareholder pursuant to Rule 144 under the Securities Act rather
pursuant to this Prospectus.
The Company will pay all fees and expenses incident to the registration
of the Shares offered hereby, other than the following expenses which will be
borne by the Selling Shareholder: discounts and commissions payable to brokers
or dealers in respect of sales of the Shares, stock transfer taxes and (except
to the extent described below) the expenses of the Selling Shareholder's
counsel, accountants and other advisors. Pursuant to a Consulting Agreement with
the Selling Shareholder, the Company is obligated to reimburse him for
9
<PAGE> 14
accounting and legal expenses up to $10,000 annually. See "Selling Shareholder."
Accordingly, it is anticipated that the Company will reimburse the Selling
Shareholder, in an amount not to exceed $10,000, for accounting and legal
expenses incurred by him in connection with his sale of the Shares hereby. It is
estimated that the aggregate fees and expenses payable by the Company in
connection with the registration and offering of the Shares hereby will be
approximately $40,000.
The Shares initially will be offered for sale by the Selling
Shareholder through Joseph Charles and Associates, Inc. as Placement Agent (the
"Placement Agent"), pursuant to a placement agency agreement to arrange for the
placement of the Shares. The Placement Agent is not obligated to place any
minimum number of Shares. It intends to offer the Shares to selected
institutional purchasers at a price of $7.125 per share.
Except in the placement of the Shares to others, the Placement Agent is
not obligated to and does not intend to purchase any of the Shares offered
hereby.
Assuming a price to the public of $7.125 per share, the Selling
Shareholder has agreed to pay to the Placement Agent 40 1/2 cents for each Share
sold in this offering as the selling commission or discount. The Selling
Shareholder and the Company have each agreed to indemnify the Placement Agent
against certain liabilities, including liabilities under the Securities Act.
DESCRIPTION OF CAPITAL STOCK
OUTSTANDING AND COMMITTED SHARES. The Company is authorized to issue
15,000,000 shares of Common Stock, par value $.50 per share. As of December 31,
1997, there were outstanding 5,745,376 shares of Common Stock. In addition, an
aggregate of approximately 2,388,000 shares of Common Stock are subject to
issuance from time to time in the future under the Transmation, Inc. Amended and
Restated 1993 Stock Option Plan, the Transmation, Inc. Amended and Restated
Directors' Warrant Plan, the Transmation, Inc. Directors' Stock Plan, the
Transmation, Inc. Employees' Stock Purchase Plan and certain bonus arrangements
with senior management.
COMMON STOCK. The holders of Common Stock are entitled to one vote for
each share held of record on all matters to be voted on by the shareholders.
Shareholders have the right to cumulate votes in the election of directors if
certain notice procedures are complied with. The holders of Common Stock are
entitled to receive dividends when, as and if declared by the Board of Directors
out of funds legally available therefor. In the event of a liquidation,
dissolution or winding up of the Company, the holders of Common Stock are
entitled to share ratably in all assets remaining available for distribution to
them after payment of liabilities. Holders of Common Stock, as such, have no
conversion, preemptive or other subscription rights, and there are no redemption
provisions applicable to the Common Stock. All of the outstanding shares of
Common Stock are fully paid and non-assessable.
TRANSFER AGENT. The transfer agent and registrar for the Common Stock is
National City Bank, the address of which is Corporate Trust Administration, P.O.
Box 94915, Cleveland, Ohio 44101-4915.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
Under the Ohio General Corporation Law (the "OGCL"), a director's
liability to the Company or its shareholders for damages is limited solely to
those situations where it is proven by clear and convincing evidence that his
act or failure to act was undertaken with deliberate intent to cause injury to
the Company or undertaken with reckless disregard for the best interests of the
Company, and those situations involving unlawful loans, asset distributions,
dividend payments or share repurchases. As a result, shareholders may be unable
to recover monetary damages against directors for actions which constitute gross
negligence or which are in violation of their fiduciary duties, although it may
be possible to obtain injunctive or other equitable relief with respect to such
actions. If equitable remedies are found not to be available to shareholders
10
<PAGE> 15
for any particular case, shareholders may not have any effective remedy against
the challenged conduct.
The Company's Code of Regulations (the "Bylaws") provide for the
indemnification of the Company's directors, officers and authorized
representatives to the fullest extent permitted by Ohio law and provide that
potential indemnitees have the right to be paid by the Company for expenses
incurred in defending any proceeding as such expenses are incurred in advance of
the final disposition of such proceeding, provided that the indemnitee executes
any undertaking required under Ohio law to repay such amounts if a
non-appealable judicial decision determines that the indemnitee is not entitled
to indemnification. The Bylaws also provide that the Company may purchase
insurance on behalf of any potential indemnitee for protection against any
liability asserted against such person and incurred by such person in any
capacity, or arising out of his status as such, whether or not the Company would
have the power to indemnify such person under the Bylaws or under applicable
provisions of Ohio law. The Bylaws further provide that the Company may extend
indemnification rights to any employee or agent of the Company to such extent as
the Board of Directors may determine, up to the full indemnification permitted
under the Bylaws and Ohio law.
The Company and the Selling Shareholder have agreed to indemnify each
other against certain liabilities, including certain liabilities under the
Securities Act. See "Selling Shareholder."
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company has been
advised that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable.
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
The OGCL prohibits certain transactions, including mergers, sales of
assets and similar corporate transactions, involving Ohio corporations and
holders of 10% or more of their voting shares, unless certain advance approvals
are obtained or certain other conditions are met.
Furthermore, the Company's Articles of Incorporation require the
affirmative vote of the holders of at least 75% of the capital stock of the
Company entitled to vote in order to authorize: (i) any merger or consolidation
of the Company with any other corporation if such transaction would otherwise by
law require a vote of the shareholders; (ii) any combination or majority share
acquisition with or by any corporation if such transaction would otherwise by
law require a vote of the shareholders; or (iii) any lease, sale, exchange,
transfer or other disposition of all or substantially all of the assets of the
Company to any other person or entity; if, in any such event, such other
corporation, person or entity is the beneficial owner of 10% or more of the
outstanding capital stock of the Company entitled to vote thereon.
Notwithstanding the foregoing, such restrictions do not apply if the Company's
Board of Directors approves a memorandum of understanding with the other
corporation, person or entity prior to the time it becomes the owner of 10% or
more of the outstanding shares of the Company's capital stock.
11
<PAGE> 16
Additionally, the affirmative vote of the holders of at least 75% of the capital
stock of the Company entitled to vote is required to amend, alter or repeal any
of the foregoing provisions of the Company's Articles of Incorporation.
Consequently, the OGCL and the Company's Articles of Incorporation may
have the effect of deterring merger proposals, tender offers or other attempts
to effect changes in control of the Company that are not negotiated and approved
by the Board of Directors or approved by the holders of at least 75% of the
Company's capital stock.
In addition, the Company's Board of Directors is divided into three
classes, with the members of each class serving for staggered three-year terms.
This structure makes it more difficult to effect a change in control of the
Company through election to the Board of Directors.
LEGAL MATTERS
The legality of the Shares offered hereby will be passed upon for the
Company by Harter, Secrest & Emery LLP, Rochester, New York.
EXPERTS
The consolidated financial statements of the Company appearing in its
Annual Report on Form 10-K for the year ended March 31, 1997 have been audited
by Price Waterhouse LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
Any audited financial statements hereafter incorporated by reference in
the Registration Statement of which this Prospectus is a part will be so
incorporated by reference herein in reliance upon the reports of independent
auditors pertaining to such financial statements (to the extent covered by
consents filed with the Commission) given upon the authority of such firm as
experts in auditing and accounting.
12
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses expected to be incurred by
the Registrant in connection with the offering of the Shares registered hereby.
All amounts, except the Securities and Exchange Commission registration fee, are
estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............ $ 1,878
Accounting Fees and Expenses................................... 5,000
Legal Fees and Expenses ....................................... 20,000
Reimbursement of Selling Shareholder's Accounting
and Legal Fees and Expenses ................................... 10,000
Miscellaneous Expenses ........................................ 3,122
---------
Total .................................... $ 40,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13 of the OGCL sets forth the conditions and limitations
governing the indemnification of officers, directors and other persons. Section
1701.13 provides that a corporation shall have the power to indemnify any person
who was or is a party or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation in a similar capacity with another corporation or entity, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement incurred in connection therewith if he acted in good faith and in a
manner that he reasonably believed to be in the best interests of the
corporation and, with respect to a criminal proceeding, had no reasonable cause
to believe that his conduct was unlawful. With respect to a suit by or in the
right of the corporation, indemnity may be provided to the foregoing persons
under Section 1701.13 on a basis similar to that set forth above, except that no
indemnity may be provided: (i) in respect of any claim, issue or matter as to
which such person has been adjudged to be liable to the corporation unless and
to the extent that the Court of Common Pleas or other court in which such
action, suit or proceeding was brought determines that despite the adjudication
of liability but in view of all the circumstances of the case such person is
entitled to indemnity for such expenses as such court deems proper; or (ii) the
action or suit is one in which the only liability asserted against a director is
pursuant to Section 1701.95 of the OGCL (which relates to unlawful loans,
dividends and distributions of assets). Moreover, Section 1701.13 provides for
mandatory indemnification of a director, officer, employee or agent of the
corporation to the extent that such person has been successful in defense of any
such action, suit or proceeding and provides that a corporation shall pay the
expenses of an officer or director in defending an action, suit or proceeding
upon receipt
II-1
<PAGE> 18
of an undertaking to repay such amounts if it is ultimately determined that such
person is not entitled to be indemnified. Section 1701.13 establishes provisions
for determining whether a given person is entitled to indemnification, and also
provides that the indemnification provided by or granted under Section 1701.13
is not exclusive of any rights to indemnity or advancement of expenses to which
such person may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise.
Article 6 of the Bylaws provides for the indemnification of the
Registrant's directors, officers and authorized representatives to the fullest
extent permitted by Ohio law and provides that potential indemnitees have the
right to be paid by the Registrant for expenses incurred in defending any
proceeding as such expenses are incurred in advance of the final disposition of
such proceeding, provided the indemnitee executes any undertaking required under
Ohio law to repay such amounts if a non-appealable judicial decision determines
that the indemnitee is not entitled to indemnification. The Bylaws also provide
that the Registrant may purchase insurance on behalf of any potential indemnitee
for protection against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of his status as such,
whether or not the Registrant would have the power to indemnify such person
under the Bylaws or under applicable provisions of Ohio law. The Bylaws further
provide that the Registrant may extend indemnification rights to any employee or
agent of the Registrant to such extent as the Board of Directors may determine,
up to the full indemnification permitted under the Bylaws and Ohio law.
ITEM 16. EXHIBITS.
(a) Exhibits:
*1.1 Form of Placement Agreement between William J. Berk and Joseph
Charles and Associates, Inc.
*1.2 Form of Agreement between the Registrant and Joseph Charles and
Associates, Inc.
4.1 Articles of Incorporation of the Registrant, as amended, are
incorporated herein by reference to Exhibit 4(a) to the
Registrant's Registration Statement on Form S-8 (Registration No.
33-61665) filed on August 8, 1995. Certificate of Amendment
thereto is incorporated herein by reference to Exhibit I to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996.
4.2 Bylaws of the Registrant, as amended, are incorporated herein by
reference to Exhibit (3) to the Registrant's Annual Report on Form
10-K for the year ended March 31, 1988.
4.3 Specimen Common Stock certificate is incorporated herein by
reference to Exhibit (4) to Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 (Registration No. 2-27910).
4.4 Revolving Credit and Term Loan Agreement dated April 4, 1997 among
the Registrant, Manufacturers and Traders Trust Company and State
Street Bank and Trust Company is incorporated herein by reference
to Exhibit 4(c) to the Registrant's Current Report on Form 8-K
dated April 4, 1997.
II-2
<PAGE> 19
*5.1 Opinion of Harter, Secrest & Emery LLP with respect to the
validity of the Registrant's Common Stock.
*23.1 Consent of Price Waterhouse LLP.
*23.2 Consent of Harter, Secrest & Emery LLP (included in Exhibit 5.1).
24.1 Power of Attorney.
99.1 Consulting Agreement dated April 1, 1979 between the Registrant
and William J. Berk, Disability, Supplemental Death Benefit and
Retirement Agreement dated April 1, 1979 between the Registrant
and William J. Berk, and Stock Registration and Repurchase
Agreement dated April 1, 1979 between the Registrant and William
J. Berk are incorporated herein by reference to Exhibit 10 to the
Registrant's Annual Report on Form 10-K for the year ended March
31, 1984.
99.2 Amendment to Consulting Agreement dated April 1, 1990 between the
Registrant and William J. Berk, Amendment to Disability,
Supplemental Death Benefit and Retirement Agreement dated April 1,
1990 between the Registrant and William J. Berk, and Amendment to
Stock Registration and Repurchase Agreement dated April 1, 1990
between the Registrant and William J. Berk are incorporated herein
by reference to Exhibit 10(b) to the Registrant's Annual Report on
Form 10-K for the year ended March 31, 1991.
99.3 Second Amendment to Stock Registration and Repurchase Agreement
dated December 12, 1997 between the Registrant and William J.
Berk.
- -----------------
* Filed with this Amendment.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
II-3
<PAGE> 20
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
II-4
<PAGE> 21
(2) For the purpose of determining any liability under the
Securities Act of 1933, 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-5
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Rochester, State of New York, on
February 5, 1998.
TRANSMATION, INC.
By: /s/ John A. Misiaszek
--------------------------------------
John A. Misiaszek
Vice President - Finance
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
President, Chief Executive
* Officer and Director (Prin- February 5, 1998
- ------------------------- cipal Executive Officer)
Robert G. Klimasewski
Vice President - Finance
/s/ John A. Misiaszek (Principal Financial Officer February 5, 1998
- ------------------------- and Principal Accounting
John A. Misiaszek Officer)
* Director February 5, 1998
- -------------------------
Angelo J. Chiarella
* Director February 5, 1998
- -------------------------
E. Lee Garelick
* Director February 5, 1998
- -------------------------
Nancy D. Hessler
* Director February 5, 1998
- -------------------------
Cornelius J. Murphy
* Director February 5, 1998
- -------------------------
John W. Oberlies
* Director February 5, 1998
- -------------------------
Harvey J. Palmer
* Director February 5, 1998
- -------------------------
Arthur M. Richardson
* Director February 5, 1998
- -------------------------
Philip P. Schulp
*By: /s/ John A. Misiaszek
-------------------------
John A. Misiaszek
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 23
INDEX TO EXHIBITS
*1.1 Form of Placement Agreement between William J. Berk and Joseph Charles
and Associates, Inc.
*1.2 Form of Agreement between the Registrant and Joseph Charles and
Associates, Inc.
4.1 Articles of Incorporation of the Registrant, as amended, are
incorporated herein by reference to Exhibit 4(a) to the Registrant's
Registration Statement on Form S-8 (Registration No. 33-61665) filed on
August 8, 1995. Certificate of Amendment thereto is incorporated herein
by reference to Exhibit I to the Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1996.
4.2 Bylaws of the Registrant, as amended, are incorporated herein by
reference to Exhibit (3) to the Registrant's Annual Report on Form 10-K
for the year ended March 31, 1988.
4.3 Specimen Common Stock certificate is incorporated herein by reference to
Exhibit (4) to Amendment No. 1 to the Registrant's Registration
Statement on Form S-1 (Registration No. 2-27910).
4.4 Revolving Credit and Term Loan Agreement dated April 4, 1997 among the
Registrant, Manufacturers and Traders Trust Company and State Street
Bank and Trust Company is incorporated herein by reference to Exhibit
4(c) to the Registrant's Current Report on Form 8-K dated April 4, 1997.
*5.1 Opinion of Harter, Secrest & Emery LLP with respect to the validity of
the Registrant's Common Stock.
*23.1 Consent of Price Waterhouse LLP.
*23.2 Consent of Harter, Secrest & Emery LLP (included in Exhibit 5.1).
24.1 Power of Attorney.
99.1 Consulting Agreement dated April 1, 1979 between the Registrant and
William J. Berk, Disability, Supplemental Death Benefit and Retirement
Agreement dated April 1, 1979 between the Registrant and William J.
Berk, and Stock Registration and Repurchase Agreement dated April 1,
1979 between the Registrant and William J. Berk are incorporated herein
by reference to Exhibit 10 to the Registrant's Annual Report on Form
10-K for the year ended March 31, 1984.
99.2 Amendment to Consulting Agreement dated April 1, 1990 between the
Registrant and William J. Berk, Amendment to Disability, Supplemental
Death Benefit and Retirement Agreement dated April 1, 1990 between the
Registrant and William J. Berk, and Amendment to Stock Registration and
Repurchase Agreement dated April 1, 1990 between the Registrant and
William J. Berk are incorporated herein by reference to Exhibit 10(b) to
the Registrant's Annual Report on Form 10-K for the year ended March 31,
1991.
II-7
<PAGE> 24
99.3 Second Amendment to Stock Registration and Repurchase Agreement dated
December 12, 1997 between the Registrant and William J. Berk.
- --------------------
* Filed with this Amendment.
II-8
<PAGE> 1
Exhibit 1.1
PLACEMENT AGREEMENT
-------------------
January __, 1998
Joseph Charles and Associates, Inc.
2500 North Military Trail
Suite 300
Boca Raton, FL 33431
Dear Sir:
William J. Berk (the "Selling Shareholder") residing at 9258 Vista Del
Lago (21A), Boca Raton, Florida 33428, proposes to sell an aggregate of 762,524
shares (the "Shares") of Common Stock (the "Common Stock") ($0.50 par value) of
Transmation, Inc. (with its subsidiaries, the "Company"), an Ohio corporation
with offices at 10 Vantage Point Drive, Rochester, New York 14624. The Selling
Shareholder confirms as follows his respective agreements with you.
1. Registration Statement and Prospectus: The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder (collectively called the
"Act") a registration statement on Form S-3 (File No. 333- 42345), relating to
the Shares. As used in this Agreement, the term "Registration Statement" means
such registration statement including exhibits and financial statements and
schedules and the documents specified in the Prospectus under the caption
"Incorporation of Certain Documents By Reference", as amended, when it becomes
effective, and the term "Prospectus" means the prospectus filed on behalf by the
Company with the Commission pursuant to Rule 424(b) under the Act.
2. Agreements to Sell: Subject to all the terms and conditions of this
agreement, you agree to purchase the Shares from the Selling Shareholder, or use
your best efforts to place the Shares on behalf of the Selling Shareholder, from
time to time within ten days from the date hereof, at a purchase price of
$_________ net to the Selling Shareholder per share. A confirmation slip or
slips shall be issued by you evidencing each transaction.
3. Delivery and Payment: Delivery of and payment for the Shares shall
be made on the settlement date as specified in confirmation slips issued by you
or Bear Stearns & Company, or your clearing broker in the regular way. The
settlement date so specified (hereinafter the "Closing" or the "Closing Date")
shall be no later than three (3) days following the transaction date specified
on any confirmation slip issued by you for the sale of any of the Shares.
Delivery of certificates for the Shares in negotiable form shall be
made into an account established in my name with Bear Stearns & Company
(courtesy of you) at least two business days prior to the entry of any order for
the purchase by you or the placement by you of the Shares. Payment of the
purchase price therefor by wire transfer of immediately available funds to an
account designated by Selling Shareholder shall be made on the Closing Date or
such later date as the certificates are delivered to you in deliverable form.
<PAGE> 2
4. Representations and Warranties of the Selling Shareholder: The
Selling Shareholder represents and warrants to you that:
(a) The Selling Shareholder now is, and at the time of delivery will
be, the lawful owner of the number of Shares to be sold by such Selling
Shareholder and at the time of delivery thereof will have valid and marketable
title to such Shares, free and clear of any claim, lien, encumbrance, security
interest, community property right, restriction on transfer or other defect in
title and now and at the time of delivery of such Shares will have, full legal
right, power and authorization, and any approval required by law, to sell,
assign, transfer and deliver such Shares in the manner provided in this
Agreement.
(b) When the Registration Statement becomes effective and at all times
subsequent thereto through the Closing Date, such parts of the Registration
Statement and Prospectus, and any supplements or amendments thereto and the
documents incorporated by reference therein, as they relate to the Selling
Shareholder and are based on information furnished in writing to the Company by
or on behalf of the Selling Shareholder expressly for use in the Registration
Statement, the Prospectus, any preliminary prospectus or any such supplement or
amendment will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, in each case in light of the
circumstances under which they were made.
(c) Such Selling Shareholder will cooperate, to the extent required, in
connection with the registration or qualification of the Shares under the
securities or Blue Sky laws of such jurisdictions as may be designated by you.
(d) The Selling Shareholder has not taken and will not take, directly
or indirectly, any action designed to, or which has constituted or which might
reasonably be expected to cause or result in, stabilization or manipulation of
the price of the Common Stock.
(e) The Selling Shareholder has his own counselors and advisors upon
whom he has relied; he has not relied on you in determining to sell the Shares.
The Selling Shareholder is aware of the fact that you may recommend to your
clients or others that they purchase the Shares, and that such investment may
prove to be profitable to your clientele.
5. You hereby agree to indemnify and hold harmless the Selling
Shareholder to the same extent as the indemnity from the Company to you and the
Selling Shareholder contained in the first and second paragraphs of Section 4 of
the letter to you from the Company dated the date of this letter, but only with
respect to information relating to you furnished in writing by you expressly for
use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Selling Shareholder in respect of which
indemnity may be sought against you, you shall have the rights and duties given
to the Company in such letter.
The Selling Shareholder hereby agrees to indemnify and hold harmless
the Company, its directors and officers (who shall be deemed third-party
beneficiaries hereof), you, and each person, if any, who controls the Company or
you within the meaning of Section 15 of the Securities Act or Section 20 of the
1934 Act, to the same extent as the indemnity from the Company to you and the
Selling Shareholder contained in the first paragraph of paragraph 4 of
2
<PAGE> 3
a letter to you from the Company dated the date of this letter, but only with
respect to information relating to such Selling Shareholder furnished in writing
by or on behalf of the Selling Shareholder expressly for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
preliminary prospectus. In case any action or proceeding shall be brought
against the Company, its directors or officers, you, or any such controlling
person, in respect of which indemnity may be sought against the Selling
Shareholder, the Selling Shareholder shall have the rights and duties given to
the Company, and the Company or its directors or officers or you or such
controlling person shall have the rights and duties given to you, by the second
paragraph of Section 4 of the foregoing letter dated the date of this Agreement.
The indemnity agreements contained in this Section 5 and the
representations and warranties of the Selling Shareholder contained in this
Agreement shall remain operative and in full force and effect regardless of (a)
any investigation made by or on behalf of you, by or on behalf of any person
controlling you, or by or on behalf of the Company, its directors and officers
or any person controlling the Company, (b) acceptance of any of the Shares and
payment therefor or (c) any termination of this Agreement.
6. Conditions of Your Obligations. Your obligations hereunder are
subject to the following conditions:
(a) The Registration Statement shall have become effective.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
pending or contemplated by the Commission.
(c) The representations and warranties of the Selling Shareholder in
this Agreement shall be true and correct, in all material respects, on and as of
the Closing Date; and the Selling Shareholder shall have complied with all
agreements and satisfied all conditions on his part to be performed or satisfied
at or prior to the Closing Date.
(d) Subsequent to the effective date of the Registration Statement
through the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in or affecting particularly the
business or financial affairs of the Company which would materially and
adversely affect the market for the Shares.
(e) Berk shall furnish you such further certificates and documents as
you shall have reasonably requested.
7. Representations of Joseph Charles & Associates, Inc.: You represent
and warrant to the Selling Shareholder that:
(a) This letter is duly authorized by you and is a legal, valid and
binding agreement enforceable against you in accordance with its terms, except
as the enforceability of the indemnification provisions hereof may be limited
under applicable Federal or state securities laws.
3
<PAGE> 4
(b) You are a corporation legally incorporated and validly existing in
good standing under the laws of the State in which you are incorporated. You
have full corporate power and authority to deliver this letter.
(c) You are not in violation of your charter or by-laws; the execution
and delivery of this Agreement, the performance of the terms herein and the
consummation of the transactions herein contemplated will not conflict with or
constitute a breach of, or a default under your charter or by-laws, or, to your
knowledge, any agreement, indenture, mortgage, deed of trust or other agreement
or instrument to which you are a party or by which you are bound, or, to your
knowledge, any law, administrative regulation or order of any court or
governmental agency or authority applicable to you.
8. Effective Date of Agreement: This Agreement shall become effective
when signed by all the parties hereto.
9. Miscellaneous: Notice given pursuant to any of the provisions of
this Agreement shall be in writing and shall be mailed or delivered (a) to the
Selling Shareholder c/o Michael V. Mitrione, Esq., Gunster, Yoakley,
Valdes-Fauli & Stewart, P.A., 777 South Flagler Drive, Suite 500 East, West Palm
Beach, Florida 33401-6194, (b) to the Company at its offices or (c) to you at
your address.
This Agreement has been made solely for the benefit of you, the Selling
Shareholder and the controlling persons, directors and officers referred to in
Section 5 hereof, and to the extent described, the Company and its directors and
officers and their respective successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" as used in this Agreement shall not include a purchaser
of Shares from you, or a purchaser from the Selling Shareholder in the event you
act as agent for the Selling Shareholder.
The section headings in the Agreement have been inserted as a matter of
convenience of reference and are not part of this Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
This Agreement may be executed in any number of counterparts which,
taken together, shall constitute but one and the same instrument.
- -----------------------------------------
William J. Berk, Selling Shareholder
JOSEPH CHARLES AND ASSOCIATES, INC.
By:
--------------------------------------
4
<PAGE> 1
Exhibit 1.2
TRANSMATION, INC.
10 Vantage Point Drive
Rochester, New York 14624
January ___, 1998
Joseph Charles and Associates, Inc.
2500 North Military Trail
Suite 300
Boca Raton, FL 33431
Madames and Gentlemen:
William J. Berk (the "Selling Shareholder") residing at 9258 Vista Del
Lago (21A), Boca Raton, Florida 33428, proposes to sell an aggregate of 762,524
shares (the "Shares") of Common Stock (the "Common Stock") ($0.50 par value) of
Transmation, Inc. (with its subsidiaries, the "Company"). The Company has
certain obligations to the Selling Shareholder pursuant to a certain agreement,
and in order to facilitate the sale of the Shares by the Selling Shareholder, it
has written this letter to you at his request.
1. The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder
(collectively called the "Act") a registration statement on Form S-3 (File No.
333-42345), relating to the Shares. As used in this Agreement, the term
"Registration Statement" means such registration statement including exhibits
and financial statements and schedules and the documents specified in the
Prospectus under the caption "Incorporation of Certain Documents By Reference",
as amended, when it becomes effective, and the term "Prospectus" means the
prospectus filed on behalf by the Company with the Commission pursuant to Rule
424(b) under the Act.
2. (a) The Company will notify you promptly, and (if requested by you)
will confirm such advice in writing, (1) when the Registration Statement has
become effective and when any post effective amendment thereto becomes
effective, (2) of any request by the Commission for amendments or supplements to
the Registration Statement or the Prospectus or for additional information, (3)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose and (4) of the happening of any event during the period mentioned in
paragraph (d) below which in the judgment of the Company makes any statement of
a material fact made in the Registration Statement or the Prospectus untrue or
which requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible moment.
(b) The Company will furnish to you, without charge, two
signed copies of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules and all exhibits
(including those incorporated therein by reference).
<PAGE> 2
(c) The Company will give you advance notice of its intention
to file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, and will not file any such amendment or supplement
to which you shall in a timely manner reasonably object in writing.
(d) On the effective date of the Registration Statement and
thereafter from time to time, the Company will deliver to you, without charge,
such number of copies of the Prospectus or any amendment or supplement thereto
as may be reasonably necessary to effectuate the sale or placement of the
Shares. The Company consents to the use of the Prospectus or any amendment or
supplement thereto by you and by all dealers to whom the Shares may be sold,
both in connection with the offering or sale of the Shares and for such period
of time thereafter as the Prospectus is required by law to be delivered in
connection therewith. If during such period of time any event shall occur which
in the judgment of the Company or your counsel should be set forth in the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission an appropriate supplement or
amendment thereto, and will deliver to you, without charge, such number of
copies thereof as you or the Selling Shareholder may reasonably request.
(e) Prior to any public offering of the Shares by you, the
Company will cooperate with you and your counsel in connection with the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you request; provided, that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it is not now
so subject. The Company will pay all fees and expenses (including counsel fees
and expenses as provided by Section 2(g)) relating to qualification of the
Shares under such securities or Blue Sky laws.
(f) The Company will make generally available to its security
holders an earnings statement which satisfies the provisions of Section 11(a) of
the Act.
(g) The Company will pay all expenses in connection with (1)
the Company's preparation, duplication and filing of the Registration Statement
and the Prospectus, (2) your counsel's review of the preliminary and final forms
of Blue Sky memoranda and other counsel fees related to Blue Sky qualification
in an amount not to exceed $1,000, (3) the issuance and delivery of certificates
for the Shares, (other than transfer taxes, provided that the Selling
Shareholder will pay any transfer taxes applicable to the sale of the Shares to
you), (4) furnishing such copies of the Registration Statement, the Prospectus,
all amendments and supplements thereto, as you may reasonably request for use in
connection with the offering and sale of the Shares by you or by dealers to whom
Shares may be sold, and (5) any fees required to be paid by you to the National
Association of Securities Dealers, Inc.
(h) You understand and acknowledge that the Company has no
obligation to maintain the effectiveness of the Registration Statement beyond
the period during which the Prospectus is required by law to be delivered.
2
<PAGE> 3
3. The Company represents and warrants to you and to the Selling
Shareholder (who shall be deemed a third party beneficiary of this Agreement)
that:
(a) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus and has not, to the knowledge
of the Company, instituted any proceeding with respect to such an order. Each
preliminary prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Act, complied when so filed in all material respects with the Act, and when
the Registration Statement becomes effective and at all times subsequent thereto
up to the settlement date or dates of the sale of the Shares, the Registration
Statement and the Prospectus, and any supplements or amendments thereto, will
fully comply with the provisions of the Act, and the Registration Statement and
the Prospectus at all such times will 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 not misleading, except that this
representation and warranty does not apply to statements or omissions in the
Registration Statement or the Prospectus or any preliminary prospectus made in
reliance upon information furnished to the Company in writing by you or by the
Selling Shareholder.
(b) This letter, to the extent that it contains obligations to
you or the Selling Shareholder, is duly authorized by the Company and is a
legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforceability of the
indemnification provisions hereof may be limited under applicable Federal or
state securities laws.
(c) The Company is a corporation legally incorporated and
validly existing in good standing under the laws of the State of Ohio. The
Company has full corporate power and authority to deliver this letter.
(d) The Company is not in violation of its charter or by-laws
in any material respect; the execution and delivery of this Agreement, the
registration of the Shares and the performance of the terms herein and the
consummation of the transactions herein contemplated will not conflict with or
constitute a breach of, or a default under the charter or by-laws of the
Company, or, to the Company's knowledge, any agreement, indenture, mortgage,
deed of trust or other agreement or instrument to which the Company is a party
or by which it is bound, or, to the Company's knowledge, any law, administrative
regulation or order of any court or governmental agency or authority applicable
to the Company.
(e) The accountants who have certified the financial
statements incorporated by reference in the Registration Statement and the
Prospectus are independent accountants as required by the Act. The consolidated
financial statements (which term as used in this Agreement includes all related
notes and schedules) of the Company incorporated by reference in the
Registration Statement fairly present in all material respects the financial
position and results of operations of the Company at the respective dates and
for the respective periods to which they apply. Such financial statements have
in all material respects been prepared in accordance with generally accepted
principles of accounting consistently applied throughout the periods involved.
3
<PAGE> 4
(f) All outstanding shares of Common Stock have been duly and
validly authorized and issued, are fully paid and non-assessable and free from
preemptive rights. The Common Stock conforms to the description thereof
contained in the Prospectus.
(g) The Company has not taken and will not take, directly or
indirectly, any action designed to, or which has constituted or which might
reasonably be expected to cause or result in, stabilization or manipulation of
the price of the Common Stock.
4. The Company agrees to indemnify and hold harmless you and the
Selling Shareholder, and each person, if any, who controls you within the
meaning of either Section 15 of the Act or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any such untrue statement
or omission or allegation thereof based upon information furnished in writing to
the Company expressly for use therein by you or by the Selling Shareholder.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against you or the Selling Shareholder or any
person controlling you in respect of which indemnity may be sought from the
Company, you or the Selling Shareholder or controlling person shall promptly
notify the Company in writing, and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to you or such
Selling Shareholder, as the case may be, and the payment of all reasonable
expenses. You or the Selling Shareholder or controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at your
expense or at the expense of the Selling Shareholder or controlling person
unless (a) the Company has agreed to pay such fees and expenses or (b) the
Company shall have failed to assume the defense of such action or proceeding and
to employ counsel reasonably satisfactory to you or the Selling Shareholder in
any such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both you or the Selling
Shareholder or controlling person and the Company, and you or the Selling
Shareholder or controlling person shall have been advised by counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case, if you or the
Selling Shareholder or controlling person notifies the Company in writing that
it elects to employ separate counsel at the expense of the Company, the Company
shall not have the right to assume the defense of such action or proceeding on
behalf of you or the Selling Shareholder or such controlling person it being
understood, however, that the Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for you and your controlling persons
or more than one firm of attorneys at any time for the Selling Shareholder which
firm shall be designated in writing by you or by the Selling Shareholder, as the
case may be). The Company shall not be liable for any settlement of any such
action or
4
<PAGE> 5
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless you, the Selling
Shareholder and any such controlling person from and against any loss or
liability by reason of such settlement or judgment.
You agree to indemnify and hold harmless the Company, and its directors
and officers, the Selling Shareholder and each person, if any, who controls the
Company within the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), to the same extent
as the indemnity from the Company to you and the Selling Shareholder contained
in the first paragraph of this Section 4, but only with respect to information
relating to you furnished in writing by you expressly for use in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any preliminary prospectus. In case any action or proceeding shall be brought
against the Company or its directors or officers, the Selling Shareholder or any
such controlling person, in respect of which indemnity may be sought against
you, you shall have the rights and duties given to the Company, and the Company
or its directors or officers or such Selling Shareholder or controlling person
shall have the rights and duties given to you, by the preceding paragraph.
The indemnity agreements contained in this Section 4 and the
representations and warranties of the Company and the Selling Shareholder
contained in this Agreement or in the Placement Agreement between you and the
Selling Shareholder shall remain operative and in full force and effect
regardless of (a) any investigation made by or on behalf of you, by or on behalf
of any person controlling you, or by or on behalf of the Company, its directors
and officers or the Selling Shareholder or any person controlling the Company or
the Selling Shareholder, (b) acceptance of any of the Shares and payment
therefor or (c) any termination of this Agreement.
5. (a) Attached hereto is a letter, dated the date of this letter from
Messrs. Harter, Secrest & Emery to the effect that except as to financial
statements and schedules included therein, as to which such counsel need not
refer, such counsel (1) believes that the Registration Statement and the
Prospectus and any supplements or amendments thereto comply as to form in all
material respects with the Act, and (2) has no reason to believe that the
Registration Statement or the Prospectus at the time the Registration Statement
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (as amended or
supplemented, if applicable) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(b) The Company will furnish you such further certificates and
documents as you shall have reasonably requested.
6. Representations of Joseph Charles & Associates, Inc.: You represent
and warrant to the Company that:
(a) This letter is duly authorized by you and is a legal,
valid and binding agreement enforceable against you in accordance with its
terms, except as the enforceability of the indemnification provisions hereof may
be limited under applicable Federal or state securities laws.
5
<PAGE> 6
(b) You are a corporation legally incorporated and validly
existing in good standing under the laws of the State in which you are
incorporated. You have full corporate power and authority to deliver this
letter.
(c) You are not in violation of your charter or by-laws; the
execution and delivery of this Agreement, the performance of the terms herein
and the consummation of the transactions herein contemplated will not conflict
with or constitute a breach of, or a default under your charter or by-laws, or,
to your knowledge, any agreement, indenture, mortgage, deed of trust or other
agreement or instrument to which you are a party or by which you are bound, or,
to your knowledge, any law, administrative regulation or order of any court or
governmental agency or authority applicable to you.
7. Miscellaneous: Notice given pursuant to any of the provisions of
this Agreement shall be in writing and shall be mailed or delivered (a) to the
Company at the office of the Company, to the Selling Shareholder at his
residence, or to you at your address. Any notice hereunder may be made by telex
or telephone, but if so made shall be subsequently confirmed in writing.
This letter has been sent solely for the benefit of you, the Company
and to the extent described for the benefit of the Selling Shareholder and of
the controlling persons, directors and officers referred to in Section 4 hereof,
and their respective heirs, legal representatives, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
letter. The term "successors and assigns" as used in this letter shall not
include a purchaser of Shares from you, or from the Selling Shareholder in the
event you act as agent for the Selling Shareholder.
The terms of this letter shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
TRANSMATION, INC.
By:
-----------------------------
ACCEPTED:
JOSEPH CHARLES & ASSOCIATES, INC.
By:
----------------------------
6
<PAGE> 1
Exhibit 5.1
[letterhead of Harter, Secrest & Emery LLP]
February 5, 1998
Transmation, Inc.
10 Vantage Point Drive
Rochester, New York 14624
Re: Transmation, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-3, as amended (Registration No. 333-42345), filed under the
Securities Act of 1933, as amended (the "Registration Statement"), with the
Securities and Exchange Commission in respect of the proposed sale by a certain
selling shareholder of Transmation, Inc., an Ohio corporation (the
"Corporation") so identified in the Registration Statement (the "Selling
Shareholder") of 762,524 authorized and issued shares of the Common Stock, par
value $.50 per share, of the Corporation (the "Common Stock"), subject to
effectiveness of the Registration Statement.
We have examined the following corporate records and proceedings of the
Corporation in connection with the preparation of this opinion: its Articles of
Incorporation, as amended to date; its Code of Regulations, as in force and
effect on this date; its minute books, containing minutes and records of other
proceedings of its shareholders and its Board of Directors to the date hereof;
the Registration Statement and related Prospectus which constitutes a part
thereof; applicable provisions of the laws of the State of Ohio; and such other
documents and matters as we have deemed necessary in the circumstances.
In rendering this opinion, we have made such examination of laws as we
have deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates of officers of the Corporation, certificates and documents issued
by public officials and authorities, and information received from searchers of
public records.
Based upon and in reliance on the foregoing, we are of the opinion that:
1. The Corporation has been duly incorporated and is validly existing
under the laws of the State of Ohio.
<PAGE> 2
Transmation, Inc.
February 5, 1998
Page 2
2. The shares of Common Stock to be sold by the Selling Shareholder upon
the effectiveness of the Registration Statement will, when sold and paid for as
described in the Registration Statement, be validly authorized and legally
issued and outstanding, fully paid and non-assessable.
We hereby consent to be named in the Registration Statement and to the
use of our name under the caption "Legal Matters" set forth in the related
Prospectus which constitutes a part of the Registration Statement, as attorneys
who will pass upon the legality of the shares of Common Stock offered thereby,
and we hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Harter, Secrest & Emery LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
May 14, 1997 with respect to the consolidated financial statements of
Transmation, Inc. appearing on page 18 of the Annual Report on Form 10-K for the
year ended March 31, 1997. We also consent to the reference to us under the
headings "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Rochester, New York
February 5, 1998
