$110,000,000
COMFORCE OPERATING, INC.
12% Senior Notes due 2007
PURCHASE AGREEMENT
COMFORCE OPERATING, INC.
$110,000,000
12% Senior Notes due 2007
PURCHASE AGREEMENT
-----------------------
November 19, 1997
Natwest Capital Markets Limited
000 Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
COMFORCE Operating, Inc., a Delaware corporation (the "Company") hereby
confirms its agreement with you (the "Initial Purchaser"), as set forth below.
1. The Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the Initial Purchaser $110,000,000
aggregate principal amount of its 12% Senior Notes due 2007 (the "Notes"). The
Notes are to be issued under an indenture (the "Indenture") to be dated as of
November 26, 1997, by and among the Company and Wilmington Trust Company, as
trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchaser without being
registered under the Securities Act of 1933, as amended (the "Act"), in reliance
on exemptions therefrom.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum dated November 1, 1997 (the "Preliminary
Memorandum") and will prepare a final offering memorandum dated November 19,
1997 (the "Final Memorandum"; the Preliminary Memorandum and the Final
Memorandum each herein being referred to as the "Memorandum") setting forth or
including a description of the terms of the Notes, the terms of the offering of
the Notes, a description of the Company and any material developments relating
to the Company occurring after the date of the most recent historical financial
statements included therein.
The Company and the Initial Purchaser will enter into a Registration Rights
Agreement (the "Registration Rights Agreement") prior to or concurrently with
the issuance of the Notes. Pursuant to the Registration Rights Agreement, under
the circumstances and the terms set forth therein, the Company will agree to
file with the Securities and Exchange Commission (the
"Commission"): (i) a registration statement on Form S-4 (the "Exchange Offer
Registration Statement") relating to a registered Exchange Offer (as defined in
the Registration Rights Agreement) for the Notes under the Act to offer to the
holders of the Notes the opportunity to exchange their Notes for an issue of
notes substantially identical to the Notes (except that (a) interest thereon
will accrue from the last date on which interest was paid on the Notes, or if no
such interest has been paid, from November 26, 1997, (b) such Notes will not
contain restrictions on transfer, and (c) such Notes will not contain provisions
relating to an increase in their interest rate under certain circumstances) that
would be registered under the Act (the "Exchange Notes"); or (ii) alternatively,
in the event that applicable interpretations of the Commission do not permit the
Company to effect the Exchange Offer or do not permit any holder of the Notes to
participate in the Exchange Offer, a shelf registration statement (the "Shelf
Registration Statement") to cover resales of Notes by such holders who satisfy
certain conditions relating to, including the provision of information in
connection with the Shelf Registration Statement.
2. Representations and Warranties. The Company represents and warrants to,
and agrees with the Initial Purchaser that:
(a) Neither the Preliminary Memorandum as of the date thereof nor the Final
Memorandum nor any amendment or supplement thereto as of the date thereof and at
all times subsequent thereto up to the Closing Date (as defined in Section 3
below) contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 2(a) do
not apply to statements or omissions made in reliance upon and in conformity
with information relating to the Initial Purchaser furnished to the Company in
writing by the Initial Purchaser expressly for use in the Preliminary
Memorandum, the Final Memorandum or any amendment or supplement thereto. The
Final Memorandum conforms in all material respects to the requirements of the
Act and the rules and regulations promulgated thereunder, as if it was a
prospectus filed as part of a registration statement on Form S-3 relating to the
Notes.
(b) As of the Closing Date, the Company will have the capitalization set
forth in the Final Memorandum; all of the outstanding shares of capital stock of
the Company have been, and as of the Closing Date will be, duly authorized and
validly issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights; there are no (i) options,
warrants or other rights to purchase from the Company, (ii) agreements or other
obligations of the Company to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of capital stock of or
ownership interests in the Company outstanding. The entities listed on Schedule
2 hereto are the only subsidiaries, direct or indirect of the Company
(collectively, the "Subsidiaries"). Except as disclosed on Schedule 2 or as
disclosed in the Final Memorandum, the Company does not own, directly or
indirectly, any capital stock or any other equity or long-term debt securities
or have any equity interest in any firm, partnership, joint venture, limited
liability company or other entity.
(c) The Company and each of the Subsidiaries has been duly incorporated, is
validly existing and is in good standing as a corporation under the laws of its
jurisdiction of incorporation, with all requisite corporate power and authority
to own its properties and conduct its business as now conducted, and as
described in the Final Memorandum; each of the Company and the Subsidiaries
is duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to
be so qualified would not, individually or in the aggregate, have a material
adverse effect on the general affairs, management, business, condition
(financial or otherwise), prospects or results of operations of the Company and
the Subsidiaries, taken as a whole (any such event, a "Material Adverse
Effect").
(d) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Notes. The Notes have been duly
and validly authorized by the Company and, when executed by the Company and
authenticated by the Trustee in accordance with the provisions of the Indenture
and, when delivered to and paid for by the Initial Purchaser in accordance with
the terms of this Agreement, will have been duly executed, issued and delivered
and will constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(e) The Company has all requisite power and authority to execute, deliver
and perform its obligations under the Exchange Notes and the Private Exchange
Notes (as defined in the Registration Rights Agreement). The Exchange Notes and
the Private Exchange Notes have been duly and validly authorized by the Company
and, when the Exchange Notes have been duly executed and delivered by the
Company and authenticated by the Trustee in accordance with the terms of the
Registration Rights Agreement and the Indenture, will constitute valid and
legally binding obligations of the Company, entitled to the benefits of the
Indenture, and are enforceable against the Company in accordance with their
terms, except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of equity
and the discretion of any court before which any proceeding therefor may be
brought.
(f) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Indenture. The Indenture meets the
requirements for qualification under the Trust Indenture Act of 1939, as amended
(the "TIA"). The Indenture has been duly and validly authorized by the Company
and, when executed and delivered by the Company (assuming the due authorization,
execution and delivery of the Indenture by the Trustee), will constitute a valid
and legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(g) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Registration Rights Agreement. The
Registration Rights Agreement has been duly and validly authorized by the
Company and, when executed and delivered by the Company, will constitute a valid
and legally binding agreement of the Company enforceable against the Company in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought.
(h) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
authorized and has been duly executed and delivered by the Company and (assuming
the due authorization, execution and delivery of this Agreement by the Initial
Purchaser) constitutes a valid legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement hereof may be subject to (i) bankruptcy, insolvency, reorganization
or other similar laws now or hereafter in effect relating the creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(i) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the performance of
this Agreement, the Registration Rights Agreement and the Indenture by the
Company or the consummation by the Company of the transactions contemplated
hereby and thereby that are to be completed on or before the Closing Date,
except such as have been obtained or disclosed in the Final Memorandum and such
as may be required under state securities or "Blue Sky" laws in connection with
the purchase and resale of the Notes by the Initial Purchaser. None of the
Company or the Subsidiaries is (i) in violation of its certificate of
incorporation or bylaws (or similar organizational document), (ii) in breach or
violation of any statute, judgment, decree, order, rule or regulation applicable
to any of them or any of their respective properties or assets, or (iii) in
breach of or in default under (nor has any event occurred which, with notice or
passage of time or both, would constitute a default under) or in violation of
any of the terms or provisions of any indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit, certificate,
contract or other agreement or instrument to which any of them is a party or to
which any of them or their respective properties or assets is subject
(collectively, "Contracts") except such violations, breaches or defaults that
would not, individually or in the aggregate, have a Material Adverse Effect.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture, and the Registration Rights Agreement and the
consummation by the Company of the transactions contemplated hereby and thereby,
and the fulfillment of the terms hereof and thereof, and the retention by
COMFORCE Corporation of NatWest Capital Markets Limited ("NatWest") pursuant to
those certain letter agreements (including the engagement and indemnity letter
agreements) dated as of August 1, 1997 (collectively, the "NatWest Engagement
Letter") and NatWest's acting as contemplated hereby and thereby, will not
conflict with or constitute or result in a breach of or a default under (or an
event which with notice or passage of time or both would constitute a default
under) or violation of any of (i) the terms or provisions of any Contract except
such conflicts, breaches, defaults or violations, that would not, individually
or in the aggregate, have a Material Adverse Effect (ii) the certificate of
incorporation or by-laws (or similar organizational document) of the Company or
any of the Subsidiaries, or (iii) any statute, judgment, decree, order, rule or
regulation applicable to the Company or any of the Subsidiaries or any of their
respective properties or assets except such conflicts, breaches, defaults or
violations that would not, individually or in the aggregate, have a Material
Adverse Effect.
(k) The audited consolidated financial statements of the Company and the
Subsidiaries and of Uniforce Services, Inc. and its subsidiaries included in the
Preliminary Memorandum and the Final Memorandum present fairly in all material
respects the financial position, results of operations and cash flows of such
entities at the dates and for the periods to which they relate and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. The summary and selected
financial and statistical data in the Preliminary Memorandum and the Final
Memorandum present fairly in all material respects the information shown therein
and have been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated therein. Each
of Coopers & Xxxxxxx LLP and KPMG Peat Marwick LLP is an independent public
accounting firm within the meaning of the Act and the rules and regulations
promulgated thereunder.
(l) Except as noted in the Memorandum, the pro forma financial information
included in the Preliminary Memorandum and the Final Memorandum (i) comply as to
form in all material respects with the applicable requirements of Regulation S-X
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (ii) have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, and (iii) have been
properly computed on the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma financial
information included in the Preliminary Memorandum and the Final Memorandum are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(m) There is not pending or, to the knowledge of the Company and the
Subsidiaries, threatened any action, suit, proceeding, inquiry or investigation
to which the Company or any of the Subsidiaries is a party, or to which the
property or assets of the Company or any of the Subsidiaries are subject, before
or brought by any court, arbitrator or governmental agency or body which, if
determined adversely to the Company or any of the Subsidiaries would,
individually or in the aggregate, have a Material Adverse Effect or which seeks
to restrain, enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of the Notes to be sold hereunder or the consummation of the
other transactions described in the Preliminary Memorandum and the Final
Memorandum.
(n) Each of the Company and the Subsidiaries owns or possesses adequate
licenses or other rights to use all material patents, trademarks, service marks,
trade names, copyrights and know-how necessary to conduct the businesses now or
proposed to be operated by it as described in the Preliminary Memorandum and the
Final Memorandum, and none of the Company or the Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such infringement of
or conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights or know-how which, if such
assertion of infringement or conflict were sustained, would, individually or in
the aggregate, have a Material Adverse Effect.
(o) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, presently required or necessary to own or lease, as
the case may be, and to operate its respective properties and to carry on its
respective businesses as now or proposed to be conducted as set forth in the
Preliminary Memorandum and the Final
Memorandum (collectively, the "Permits"), except where the failure to obtain
such Permits would not, individually or in the aggregate, have a Material
Adverse Effect; each of the Company and the Subsidiaries has fulfilled and
performed all of its obligations with respect to such Permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of the rights
of the holder of any such Permit except where such revocation, termination or
impairment would not, individually or in the aggregate, have a Material Adverse
Effect; and none of the Company or the Subsidiaries has received any notice of
any proceeding relating to revocation or modification of any such Permit, except
as described in the Final Memorandum and except where such revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect.
(p) Since the date of the most recent financial statements appearing in the
Final Memorandum, except as described in the Final Memorandum, (i) none of the
Company or the Subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into or agreed to enter into any transactions or
Contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or Contracts could, individually or in
the aggregate, be material to the general affairs, management, business,
condition (financial or otherwise), prospects or results of operations of the
Company and the Subsidiaries, taken as a whole (a "Material Change"), (ii) none
of the Company or the Subsidiaries has purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock and (iii) other than as described in the Final
Memorandum, there shall not have been any change in the capital stock or
long-term indebtedness of the Company or the Subsidiaries which could,
individually or in the aggregate, constitute a Material Change.
(q) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and the
Subsidiaries, either individually or taken as a whole, from that set forth in
the Final Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(r) Each of the Company and the Subsidiaries has filed all necessary
federal, state, local and foreign income and franchise tax returns, and has paid
all taxes shown as due thereon; and, other than tax deficiencies which the
Company or any Subsidiary is contesting in good faith, and for which the Company
or such Subsidiary has provided adequate reserves, there is no tax deficiency
that has been asserted against the Company or any of the Subsidiaries.
(s) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which are reliable and accurate.
(t) None of the Company, the Subsidiaries or any agent acting on their
behalf has taken or will take any action that might cause this Agreement or the
sale of the Notes to violate Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
(u) Each of the Company and the Subsidiaries has good and marketable title
to all real property and good title to all personal property described in the
Preliminary Memorandum and the Final Memorandum as being owned by it and good
and marketable title to any leasehold estate
in the real and personal property described in the Preliminary Memorandum and
the Final Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Preliminary Memorandum
and the Final Memorandum or to the extent the failure to have such title or the
existence of such liens, charges, encumbrances or restrictions would not,
individually or in the aggregate, have a Material Adverse Effect. All Contracts
to which the Company or any of the Subsidiaries is a party or by which any of
them is bound are valid and enforceable against the Company or such Subsidiary,
and are valid and enforceable against the other party or parties thereto and are
in full force and effect with only such exceptions as would not, individually or
in the aggregate, have a Material Adverse Effect.
(v) There are no legal or governmental proceedings involving or affecting
the Company or any Subsidiary or any of their respective properties or assets
which would be required to be described in a prospectus pursuant to the Act that
are not described in the Preliminary Memorandum and the Final Memorandum, nor
are there any material contracts or other documents which would be required to
be described in a prospectus pursuant to the Act that are not described in the
Preliminary Memorandum and the Final Memorandum.
(w) Except as would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect (A) each of the Company and the
Subsidiaries is in compliance with and not subject to liability under applicable
Environmental Laws (as defined below), (B) each of the Company and the
Subsidiaries has made all filings and provided all notices required under any
applicable Environmental Law, and has and is in compliance with all Permits
required under any applicable Environmental Laws and each of them is in full
force and effect, (C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the knowledge
of the Company or any of the Subsidiaries, threatened against the Company or any
of the Subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any Environmental Law with
respect to any assets, facility or property owned, operated, leased or
controlled by the Company or any of the Subsidiaries, (E) none of the Company or
the Subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any comparable
state law, (F) no property or facility of the Company or any of the Subsidiaries
is (i) listed or proposed for listing on the National Priorities List under
CERCLA or is (ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to CERCLA,
or on any comparable list maintained by any state or local governmental
authority.
For purposes of this Agreement, "Environmental Laws" means the common law
and all applicable foreign and federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, law
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials, into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata),
(ii) the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials, and (iii)
underground and above ground storage tanks, and related piping, and emissions,
discharges, releases or threatened releases therefrom.
(x) There is no strike, labor dispute, slowdown or work stoppage with the
employees of the Company or any of the Subsidiaries which is pending or, to the
knowledge of the Company or any of the Subsidiaries, threatened.
(y) Each of the Company and the Subsidiaries carries insurance in such
amounts and covering such risks as is adequate for the conduct of its business
and the value of its properties. Neither the Company nor any of its Subsidiaries
has received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order
to continue such insurance.
(z) None of the Company or the Subsidiaries has any material liability for
any prohibited transaction (within the meaning of Section 4975(c) of the Code or
Part 4 of Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) (or an accumulated funding deficiency within the meaning of
Section 412 of the Code or Section 302 of ERISA) or any complete or partial
withdrawal liability (within the meaning of Section 4201 of ERISA) with respect
to any pension, profit sharing or other plan which is subject to ERISA, to which
the Company or any of the Subsidiaries makes or ever has made a contribution and
in which any employee of the Company or of any Subsidiary is or has ever been a
participant. With respect to such plans, the Company and each Subsidiary is in
compliance in all material respects with all applicable provisions of ERISA.
(aa) Each of the Company and the Subsidiaries (i) makes and keeps accurate
books and records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(bb) None of the Company or the Subsidiaries will be an "investment
company" or "promoter" or "principal underwriter" for an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
(cc) The Notes, the Exchange Notes, the Indenture and the Registration
Rights Agreement will conform in all material respects to the descriptions
thereof in the Final Memorandum.
(dd) No holder of securities of the Company will be entitled to have such
securities registered under the registration statements required to be filed by
the Company pursuant to the Registration Rights Agreement other than as
expressly permitted thereby.
(ee) Immediately after the consummation of the transactions contemplated by
this Agreement, the fair value and present fair saleable value of the assets of
each of the Company and the Subsidiaries (each on a consolidated basis) will
exceed the sum of its stated liabilities and identified contingent liabilities;
none of the Company or the Subsidiaries (each on a consolidated basis) is, nor
will any of the Company or the Subsidiaries (each on a consolidated basis) be,
after giving effect to the execution, delivery and performance of this
Agreement, and the consummation
of the transactions contemplated hereby, (a) left with unreasonably small
capital with which to carry on its business as it is currently or proposed to be
conducted, (b) unable to pay its debts (contingent or otherwise) as they mature
or otherwise become due or (c) otherwise insolvent.
(ff) None of the Company, the Subsidiaries or any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any "security" (as defined in the
Act) which is or could be integrated with the sale of the Notes in a manner that
would require the registration under the Act of the Notes or (ii) engaged in any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the Notes or in
any manner involving a public offering within the meaning of Section 4(2) of the
Act. The Company has not distributed and will not distribute any offering
material in connection with the offering of the Notes other than the Final
Memorandum and any Preliminary Memorandum. No securities of the same class as
the Notes have been issued and sold by the Company within the six-month period
immediately prior to the date hereof.
(gg) Assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 8 hereof, it is not necessary in connection with
the offer, sale and delivery of the Notes to the Initial Purchaser in the manner
contemplated by this Agreement to register any of the Notes under the Act or to
qualify the Indenture under the TIA.
(hh) No securities of the Company or any Subsidiary are of the same class
(within the meaning of Rule 144A as promulgated under the Act ("Rule 144A")) as
the Notes and listed on a national securities exchange registered under Section
6 of the Exchange Act, or quoted in a U.S. automated inter-dealer quotation
system.
(ii) None of the Company or the Subsidiaries has taken, nor will any of
them take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Notes.
(jj) None of the Company or the Subsidiaries, or any person acting on any
of their behalf (other than the Initial Purchaser) has engaged in any directed
selling efforts (as that term is defined in Regulation S under the Act
("Regulation S")) with respect to the Notes; the Company and its respective
Affiliates and any person acting on any of their behalf (other than the Initial
Purchaser or any Affiliate of the Initial Purchaser) have complied with the
offering restrictions requirement of Regulation S.
(kk) Each of the Preliminary Memorandum and the Final Memorandum, as of its
respective date, contains all of the information that, if requested by a
prospective purchaser of the Notes, would be required to be provided to such
prospective purchaser to Rule 144A(d)(4) under the Act.
(ll) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Act.
(mm) Neither the Company nor any of its Subsidiaries nor, to the
Company'sknowledge, any officer or director purporting to act on behalf of the
Company or any of its Subsidiaries has at any time: (i) made any contributions
to anycandidate for political office, or failed
to disclose fully any such contributions, in violation of law, (ii) made any
payment of funds to, or received or retained any funds from, any state, federal
or foreign governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or allowed
by applicable law, (iii) violated or is in violation of the Foreign Corrupt
Practices Act of 1977, (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment or (v) engaged in any transactions,
maintained any bank account or used any corporate funds except for transactions,
bank accounts and funds which have been and are reflected in the normally
maintained books and records of the Company and its Subsidiaries.
(nn) Except as disclosed in any Memorandum, there are no material
outstanding loans or advances or material guarantees of indebtedness by the
Company or any of its Subsidiaries to or for the benefit of any of the officers
or directors of the Company or any of its Subsidiaries or any of the members of
the families of any of them.
(oo) Neither the Company nor any affiliate of the Company does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Florida Statutes Section 517.075.
(pp) None of the Company or the Subsidiaries has engaged or retained any
person, other than NatWest as the Initial Purchaser, to act as a financial
advisor, underwriter or placement agent in connection with the issuance of the
Notes and, except for the fees and expenses payable to Unterberg, Towbin, L.P.
as the Company's financial advisor in connection with the Uniforce Acquisition
and fees and expenses payable in connection with the issuance of the Notes as
described in the Final Memorandum, no person has the right to receive a material
amount of financial advisory, underwriting, placement, finder's or similar fees
in connection with, or as a result of, the issuance of the Notes and the
purchase of the Notes by the Initial Purchaser or the consummation of the other
transactions contemplated hereby.
(qq) Each of COMFORCE Corporation and COMFORCE Columbus, Inc. has all
requisite corporate power and authority to execute, deliver and perform its
obligations under that certain Agreement and Plan of Merger dated as of August
13, 1997, by and among COMFORCE Corporation, COMFORCE Columbus, Inc. and
Uniforce Services, Inc. (the "Merger Agreement"). The Merger Agreement has been
duly and validly authorized, executed and delivered by COMFORCE Corporation and
COMFORCE Columbus, Inc. and constitutes a valid and legally binding agreement of
COMFORCE Corporation and COMFORCE Columbus, Inc. enforceable against COMFORCE
Corporation and COMFORCE Columbus, Inc. in accordance with its terms, except
that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) to general principles of equity and the
discretion of any court before which any proceeding therefor may be brought.
(rr) On the Closing Date, the Company shall have consummated its offer to
purchase the Common Stock, par value $0.50 per share of Uniforce Services, Inc.
(the "Offer") pursuant to its tender offer statement on Schedule 14D-1 as filed
with the Commission on October 27, 1997 and such offer, and the consummation
thereof shall have complied in all material respects with all applicable laws,
including, without limitation, the Exchange Act and the rules and regulations
promulgated thereunder.
Any certificate signed by any officer of the Company or any Subsidiary and
delivered to the Initial Purchaser or to counsel for the Initial Purchaser shall
be deemed a joint and several representation and warranty by the Company and
each of the Subsidiaries to the Initial Purchaser as to the matters covered
thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company the principal amount of Notes set forth opposite its
name on Schedule 1 hereto at 97.0000% of their principal amount. One or more
certificates in definitive form for the Notes that the Initial Purchaser has
agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Initial Purchaser requests upon notice
to the Company at least 36 hours prior to the Closing Date, shall be delivered
by or on behalf of the Company to the Initial Purchaser, against payment by or
on behalf of the Initial Purchaser of the purchase price therefor by wire
transfer to such account or accounts as the Company shall specify prior to the
Closing Date, or by such means as the parties hereto shall agree prior to the
Closing Date. Such delivery of and payment for the Notes shall be made at the
offices of White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 A.M., New York time, on November 26, 1997, or at such other place, time or
date as the Initial Purchaser, on the one hand, and the Company, on the other
hand, may agree upon, such time and date of delivery against payment being
herein referred to as the "Closing Date." The Company will make such certificate
or certificates for the Notes available for inspection and packaging by the
Initial Purchaser at such place as designated by the Initial Purchaser at least
24 hours prior to the Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser proposes to
make an offering of the Notes at the price and upon the terms set forth in the
Final Memorandum, as soon as practicable after this Agreement is entered into
and as in the judgment of the Initial Purchaser is advisable.
5. Covenants of the Company and the Subsidiaries. The Company covenants and
agrees with the Initial Purchaser that:
(a) The Company will not amend or supplement the Final Memorandum or any
amendment or supplement thereto unless the Initial Purchaser shall previously
have been advised and furnished a copy of such amendment or supplement for a
reasonable period of time prior to the proposed amendment or supplement and as
to which the Initial Purchaser shall have consented. The Company will promptly,
upon the reasonable request of the Initial Purchaser or counsel for the Initial
Purchaser, make any amendments or supplements to the Preliminary Memorandum or
the Final Memorandum that may be necessary or advisable in connection with the
resale of the Notes by the Initial Purchaser.
(b) The Company will cooperate with the Initial Purchaser in arranging for
the qualification of the Notes for offering and sale under the securities or
"Blue Sky" laws of which jurisdictions as the Initial Purchaser may designate
and will continue such qualifications in effect for as long as may be necessary
to complete the resale of the Notes; provided, however, that in connection
therewith, none of the Company or any Subsidiary shall be required to qualify as
a foreign corporation or to execute a general consent to service of process in
any jurisdiction or subject
itself to taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(c) If, at any time prior to the completion of the distribution by the
Initial Purchaser of the Notes or the Private Exchange Notes, any event occurs
or information becomes known as a result of which the Final Memorandum as then
amended or supplemented would, in the judgment of the Company or in the
reasonable opinion of your counsel include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if for any other reason it is necessary at any time to amend or supplement the
Final Memorandum to comply with applicable law, the Company will promptly notify
the Initial Purchaser thereof and will prepare, at the expense of the Company,
an amendment or supplement to the Final Memorandum that corrects such statement
or omission or effects such compliance.
(d) The Company will, without charge, provide to the Initial Purchaser and
to counsel for the Initial Purchaser as many copies of the Preliminary
Memorandum and the Final Memorandum or any amendment or supplement thereto as
the Initial Purchaser may reasonably request.
(e) The Company will apply the net proceeds from the sale of the Notes as
set forth under "Use of Proceeds" in the Final Memorandum.
(f) From the Closing Date until the date that no Notes are outstanding
under the Indenture, the Company will furnish to the Initial Purchaser copies of
all reports and other communications (financial or otherwise) furnished by the
Company to the Trustee, or the holders of the Notes and, as soon as available,
copies of any reports or financial statements furnished to or filed by the
Company with the Commission or any national securities exchange on which any
class of securities of the Company may be listed.
(g) Prior to the Closing Date, the Company and the Subsidiaries will
furnish to the Initial Purchaser, as soon as they have been prepared, a copy of
any unaudited interim financial statements of the Company and the Subsidiaries
for any period subsequent to the period covered by the most recent financial
statements appearing in the Final Memorandum.
(h) None of the Company, the Subsidiaries or any of their Affiliates will
sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any "security" (as defined in the Act) which could be integrated with the
sale of the Notes in a manner which would require the registration under the Act
of the Notes.
(i) None of the Company or the Subsidiaries will engage in any form of
"general solicitation" or "general advertising" (as those terms are used in
Regulation D under the Act) in connection with the offering of the Notes or in
any manner involving a public offering of the Notes within the meaning of
Section 4(2) of the Act.
(j) None of the Company, the Subsidiaries or their Affiliates nor any
person acting on its or their behalf will engage, in any directed selling
efforts (as that term is defined in Regulation S) with respect to the Notes, and
will comply, and will have its Affiliates and each person acting on
its or their behalf comply, with the offering restrictions requirements of
Regulation S.
(k) For so long as any of the Notes remain outstanding, the Company and the
Subsidiaries will make available, upon request, to any seller of such Notes the
information specified in Rule 144A(d)(4) under the Act, unless the Company and
the Subsidiaries are then subject to Section 13 or 15(d) of the Exchange Act.
(l) For a period of 180 days from the date of the Final Memorandum, the
Company and the Subsidiaries will not offer for sale, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file a registration statement
for, or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than the Notes or the Exchange Notes or the Private Exchange
Notes) without the prior written consent of the Initial Purchaser;
(m) During the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial Purchaser, the
Company and the Subsidiaries will not, and will not permit any of their
affiliates (as defined in Rule 144 under the Securities Act) to, resell any of
the Notes that have been reacquired by them, except for Notes purchased by the
Company or any of its affiliates and resold in a transaction registered under
the Securities Act;
(n) In connection with the offering of the Notes, until the Initial
Purchaser shall have notified the Company of the completion of the resale of the
Notes, the Company and the Subsidiaries will not, and will cause their
affiliated purchasers (as defined under the Exchange Act) not to, either alone
or with one or more other persons, bid for or purchase, for any account in which
it or any of its affiliated purchasers has a beneficial interest, any Notes, or
attempt to induce any person to purchase any Notes; and not to, and to cause its
affiliated purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent, active trading in or of raising the price of the Notes;
(o) The Company and the Subsidiaries will not take any action prior to the
execution and delivery of the Indenture which, if taken after such execution and
delivery, would have violated any of the covenants contained in the Indenture;
(p) The Company and the Subsidiaries will not take any action prior to
Closing Date which would require the Final Memorandum to be amended or
supplemented pursuant to Section 5(c);
(q) Prior to the Closing Date, the Company and the Subsidiaries will not
issue any press release or other communication directly or indirectly or hold
any press conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except for
routine oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the Initial
Purchaser is notified), without the prior written consent of the Initial
Purchaser, unless in the judgment of the Company and its counsel, after
notification to the Initial Purchasers, such press release or communication is
required by law; and
(r) The Company will use its best efforts to (i) permit the Notes to be
designated PORTAL securities in accordance with the rules and regulations
adopted by the NASD relating to
trading in the Private Offerings, Resales and Trading through Automated Linkages
market (the "Portal Market") and (ii) permit the Notes to be eligible for
clearance and settlement through the Depository Trust Company.
6. Expenses. The Company agrees to pay all costs and expenses incident to
the performance of their obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
the transactions contemplated hereby, including any costs of printing the
Preliminary Memorandum and the Final Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchaser of copies of the foregoing documents, (iii)
the fees and disbursements of counsel, accountants and any other experts or
advisors retained by the Company, (iv) preparation (including printing),
issuance and delivery to the Initial Purchaser of the Notes, (v) the
qualification of the Notes under state securities and "Blue Sky" laws, including
filing fees and fees and disbursements of counsel for the Initial Purchaser
relating thereto, (vi) the Company's expenses in connection with any meetings
with prospective investors in the Notes, (vii) fees and expenses of the Trustee
including fees and expenses of counsel, (viii) all expenses and listing fees
incurred in connection with the application for quotation of the Notes on the
PORTAL Market, (ix) any fees charged by investment rating agencies for the
rating of the Notes. If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchaser
set forth in Section 7 hereof is not satisfied, because this Agreement is
terminated or because of any failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on their part to
be performed or satisfied hereunder (other than solely by reason of a default by
the Initial Purchaser of their obligations hereunder after all conditions
hereunder have been satisfied in accordance herewith), the Company agrees to
promptly reimburse the Initial Purchaser upon demand for all out-of-pocket
expenses (including all fees, disbursements and charges of White & Case, counsel
for the Initial Purchaser) that shall have been incurred by the Initial
Purchaser in connection with the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchaser's Obligations. The obligation of the
Initial Purchaser to purchase and pay for the Notes shall, in its sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received the
opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of
Xxxxxxx, Keevican & Xxxxx, counsel for the Company in form and substance
satisfactory to counsel for the Initial Purchaser, substantially to the effect
that:
(i) Each of the Company and the material Subsidiaries is duly incorporated,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Final Memorandum. Each of the Company and the material
Subsidiaries is duly qualified as a foreign corporation and is in good standing
in the jurisdictions set forth below such Subsidiaries' name on Schedule A
attached to such opinion.
(ii) The Company has the authorized and issued capital stock set forth in
the Final
Memorandum. To the knowledge of Doepken Keevican & Xxxxx, the Subsidiaries
constitute all the subsidiaries of the Company and the Company will own the
percentage of the issued and outstanding stock (or other equity securities) of
each of the Subsidiaries set forth on Schedule 2 hereto. All of the outstanding
shares of capital stock of the Company and the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar rights; all of the outstanding
shares of capital stock of the Subsidiaries are owned, directly or indirectly,
by the Company, free and clear of all security interests perfected, or
otherwise, and free and clear of all other liens, encumbrances, equities and
claims or restrictions on transferability or voting in each case other than a
pledge of the shares of such Subsidiary pursuant to the provisions of the New
Credit Facility.
(iii) Except as set forth in the Final Memorandum, (A) to the knowledge of
such counsel no options, warrants or other rights to purchase from the Company
or any Subsidiary shares of capital stock or ownership interests in the Company
or any Subsidiary are outstanding, (B) no agreements or other obligations of the
Company or any Subsidiary to issue, or other rights to cause the Company or any
Subsidiary to convert, any obligation into, or exchange any securities for,
shares of capital stock or ownership interests in the Company or any Subsidiary
are outstanding and (C) no holder of securities of the Company or any Subsidiary
is entitled to have such securities registered under a registration statement
filed by the Company and the Subsidiaries pursuant to the Registration Rights
Agreement.
(iv) The Company has all requisite corporate power and authority to
execute, deliver and perform its respective obligations under this Agreement,
the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the
Indenture is in sufficient form for qualification under the TIA; the Indenture
has been duly and validly authorized by the Company and, when duly executed and
delivered by the Company (assuming the due authorization, execution and delivery
thereof by the Trustee), will constitute the valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought.
(v) The Global Note (as such term is defined in the Indenture) is, and each
other Note, when issued, will be, in the form contemplated by the Indenture. The
Global Note and each other Note has been duly and validly authorized by the
Company and when duly executed and delivered by the Company and, in the case of
the Global Note, when paid for by the Initial Purchaser in accordance with the
terms of this Agreement (assuming the due authorization, execution and delivery
of the Indenture by the Trustee and due authentication and delivery of the Notes
by the Trustee in accordance with the Indenture), will constitute the valid and
legally binding obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company in accordance with their terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought.
(vi) The Exchange Notes and the Private Exchange Notes have been duly and
validly authorized by the Company, and when the Exchange Notes and the Private
Exchange Notes
have been duly executed and delivered by the Company in accordance with the
terms of the Registration Rights Agreement and the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee and due
authentication and delivery of the Exchange Notes and the Private Exchange Notes
by the Trustee in accordance with the Indenture), will constitute the valid and
legally binding obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company in accordance with their terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought.
(vii) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement; the Registration Rights Agreement has been duly and validly
authorized by the Company and, when duly executed and delivered by the Company
(assuming due authorization, execution and delivery thereof by the Initial
Purchaser), will constitute the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought. No
holder of securities of the Company nor COMFORCE Corporation, nor any of the
Subsidiaries will be entitled to have such securities registered under the
registration statement required to be filed pursuant to the Registration Rights
Agreement.
(viii) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; this Agreement and the
consummation by the Company of the transactions contemplated hereby have been
duly and validly authorized, executed and delivered by the Company and (assuming
the due authorization, execution and delivery of this Agreement by the Initial
Purchaser) constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy insolvency, reorganization
or other similar laws now or hereafter in effect relating to creditors rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(ix) The Indenture, the Notes (when issued, authorized and delivered), the
Exchange Notes (when issued, authorized and delivered), Private Exchange Notes
(if and when issued, authorized and delivered) and the Registration Rights
Agreement conform in all material respects to the descriptions thereof contained
in the Final Memorandum and the Statements in the Final Memorandum under
"Description of Notes" and "Notes Exchange Offer and Registration Rights"
insofar as they describe the provisions of the documents and instruments therein
described, constitute fair summaries thereof in all material respects.
(x) No legal or governmental proceedings are pending or, to the knowledge
of such counsel, threatened to which any of the Company is a party or to which
the property or assets of the Company is subject before or brought by any court,
arbitrator or governmental agency or body which, if determined adversely to the
Company, would result, individually or in the aggregate, in a Material Adverse
Effect, or which seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance or sale of the Notes to be sold hereunder or
the consummation of the other transactions described in the Final Memorandum.
(xi) None of the Company or any material Subsidiary is (i) in violation of
its certificate of incorporation or bylaws (or similar organizational document)
or (ii) to the knowledge of such counsel, in breach or violation of any
judgment, decree or order of any court, arbitrator or governmental body, agency
or authority applicable to any of them or any of their respective properties or
assets.
(xii) The execution and delivery of this Agreement, the Indenture, the
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby (including, without limitation, the issuance and
sale of the Notes to the Initial Purchaser) will not conflict with or constitute
or result in a breach or a default under (or an event which with notice or
passage of time or both would constitute a default under) or violation of any of
(i) the terms or provisions of any Contract known to such counsel, (ii) the
certificate of incorporation or bylaws (or similar organizational document) of
the Company or any material Subsidiary, or (iii) (assuming compliance with all
applicable state securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 8 hereof) any
statute, judgment, decree, order, rule or regulation which, in such counsel's
experience, is normally applicable both to general business corporations which
are not engaged in regulated business activities and to transactions of the type
contemplated by the Final Memorandum.
(xiii) No consent, approval, authorization or order of any governmental
authority is required for the issuance and sale by the Company of the Notes to
the Initial Purchaser or the other transactions contemplated hereby, except such
as are disclosed in the Final Memorandum or as may be required under Blue Sky
laws, as to which such counsel need express no opinion, and those which have
previously been obtained.
(xiv) There are no legal or governmental proceedings involving or affecting
the Company or the Subsidiaries or any of their respective properties or assets
which would be required to be described in a prospectus pursuant to the Act that
are not described in the Final Memorandum nor are there any material contracts
or other documents which would be required to be described in a prospectus
pursuant to the Act that are not described in the Final Memorandum.
(xv) The Company and each of the Subsidiaries possesses all Permits
presently required or necessary to own or lease, as the case may be, and to
operate its respective properties and to carry on its respective businesses as
now or proposed to be conducted as described in the Preliminary Memorandum and
the Final Memorandum, except where the failure to obtain such Permits would not,
individually or in the aggregate, have a Material Adverse Effect; each of the
Company and the Subsidiaries to the knowledge of Doepken, Keevican & Xxxxx has
fulfilled and performed all of its obligations with respect to such Permits and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Permit except where such
revocation, termination or impairment would not, individually or in the
aggregate, have a Material Adverse Effect; and to the knowledge of Doepken,
Keevican & Xxxxx, none of the Company or the Subsidiaries has received any
notice of any proceeding relating to revocation or modification of any such
Permit, except as described in the Final Memorandum and except where such
revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect.
(xvi) Based on lien searches performed with respect to the Company and the
Subsidiaries, the real and personal property of the Company described in the
Preliminary Memorandum and the Final Memorandum is free and clear of all liens,
charges, encumbrances or restrictions, except as described in the Preliminary
Memorandum and the Final Memorandum or to the extent that the failure to have
such title or the existence of such liens, charges, encumbrances or restrictions
would not, individually or in the aggregate, have a Material Adverse Effect.
(xvii) None of the Company or the Subsidiaries is, or immediately after the
sale of the Notes to be sold hereunder and the application of the proceeds from
such sale (as described in the Final Memorandum under the caption "Use of
Proceeds") will be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(xviii) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Act.
(xix) No registration under the Act of the Notes is required in connection
with the sale of the Notes to the Initial Purchaser as contemplated by this
Agreement and the Final Memorandum or in connection with the initial resale of
the Notes by the Initial Purchaser in accordance with Section 8 of this
Agreement, and prior to the commencement of the Exchange Offer or the
effectiveness of the Shelf Registration Statement (as defined in the
Registration Rights Agreement), the Indenture is not required to be qualified
under the TIA, in each case assuming (i) that the purchasers who buy such Notes
in the initial resale thereof are qualified institutional buyers as defined in
Rule 144A promulgated under the Act ("QIBs") or accredited investors as defined
in Rule 501(a) (1), (2), (3) or (7) promulgated under the Act ("Accredited
Investors"), (ii) the accuracy of the Initial Purchaser's representations in
Section 8 hereof and those of the Company contained in this Agreement regarding
the absence of a general solicitation in connection with the sale of such Notes
to the Initial Purchaser and the initial resale thereof and (iii) the due
performance by the Initial Purchaser of the agreements set forth in Section 8
hereof.
(xx) Neither the consummation of the transactions contemplated by this
Agreement nor the sale, issuance, execution or delivery of the Notes will
violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
(xxi) COMFORCE Corporation and COMFORCE Columbus, Inc. (the "Merger
Parties") have all requisite corporate power and authority to execute, deliver
and perform its obligations under the Merger Agreement. The Merger Agreement has
been duly and validly authorized, executed and delivered by the Merger Parties
and will constitute a valid and legally binding agreement of the Merger Parties
enforceable against the Merger Parties in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
At the time the foregoing opinion is delivered, Xxxxxxx, Keevican & Xxxxx
shall additionally state that it has participated in conferences with officers
and other representatives of the
Company and the Subsidiaries, representatives of the independent public
accountants for the Company, representatives of the Initial Purchaser and
counsel for the Initial Purchaser, at which conferences the contents of the
Final Memorandum and related matters were discussed, and, although it has not
independently verified and is not passing upon and assumes no responsibility for
the accuracy, completeness or fairness of the statements contained in the Final
Memorandum, no facts have come to its attention which lead it to believe that
the Final Memorandum, on the date thereof or at the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that such firm need express no opinion with respect to the
financial statements and related notes thereto and the other financial,
statistical and accounting data included in the Final Memorandum). In rendering
such opinion, Xxxxxxx, Xxxxxxxx & Xxxxx shall have received and may rely upon
such certificates and other documents and information as it may reasonably
request to pass on such matters. The opinion of Xxxxxxx, Keevican & Xxxxx
described in this Section shall be rendered to the Initial Purchaser at the
request of the Company and shall so state therein. If requested by the Trustee,
Xxxxxxx, Keevican & Xxxxx shall allow the Trustee to rely on its opinion and
shall expressly so state.
References to the Final Memorandum in this subsection (a) shall include any
amendment or supplement thereto prepared in accordance with the provisions of
this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchaser shall have received the
opinion, in form and substance satisfactory to the Initial Purchaser, dated as
of the Closing Date and addressed to the Initial Purchaser, of White & Case,
counsel for the Initial Purchaser, with respect to certain legal matters
relating to this Agreement and such other related matters as the Initial
Purchaser may reasonably require. In rendering such opinion, White & Case shall
have received and may rely upon such certificates and other documents and
information as it may reasonably request to pass upon such matters.
(c) On the Closing Date, the Initial Purchaser shall have received the
opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of
Xxxxxxxx, Xxxxxx & Finger, counsel to the Trustee, in form and substance
satisfactory for counsel to the Initial Purchasers, dated the Closing Date,
substantially to the effect that:
(i) Wilmington Trust Company is a trust company validly existing and in
good standing under the laws of the State of Delaware.
(ii) Wilmington Trust Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Indenture.
The Indenture has been duly and validly authorized by Wilmington Trust Company
and will constitute a valid and legally binding agreement of Wilmington Trust
Company, enforceable against it in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization
or other similar laws applicable to trust companies established in the State of
Delaware now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity and the discretion of the court before which
any proceeding therefor may be brought (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(iii) The Notes delivered to the Initial Purchasers on the Closing Date
have been duly authenticated by the Trustee in accordance with the terms of the
Indenture.
(iv) The execution, delivery and performance by the Trustee of the
Indenture does not and will not require the authorization, consent or approval
of, the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency regulating
the banking and trust activities of the Trustee.
(d) The Initial Purchaser shall have received from each of Coopers &
Xxxxxxx LLP and KPMG Peat Marwick LLP and Xxxxxx Xxxxxxxx LLP comfort letters
dated the date hereof and the Closing Date, in form and substance satisfactory
to counsel for the Initial Purchaser.
(e) On the Closing Date, the Initial Purchaser shall have received the
Indenture and the Registration Rights Agreement, duly authorized, executed and
delivered by each of the parties thereto, in form and substance satisfactory to
counsel for the Initial Purchaser, and containing such terms and conditions that
are usual and customary in transactions similar to those contemplated hereby and
thereby, dated the Closing Date and each such agreement shall be in full force
and effect according to its terms.
(f) The Initial Purchaser shall have received good standing certificates
for the Company and each of the Subsidiaries from their respective states of
incorporation and from each of the respective jurisdictions where each of them
is qualified to do business as a foreign corporation, in each case in form and
substance satisfactory to counsel for the Initial Purchaser.
(g) The representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date; the statements of
the Company's officers made pursuant to any certificate delivered in accordance
with the provisions hereof shall be true and correct on and as of the date made
and on and as of the Closing Date; the Company shall have performed all
covenants and agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date; and, except as
described in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), subsequent to the date of the most recent
financial statements in such Final Memorandum, there shall have been no event or
development that, individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect.
(h) The sale of the Notes hereunder shall not be enjoined (temporarily or
permanently) on the Closing Date.
(i)The Notes shall have been approved by the NASD for trading in the PORTAL
Market.
(j) There shall not have occurred any invalidation of Rule 144A under the
Securities Act by any court or any withdrawal or proposed withdrawal of any rule
or regulation under the Securities Act or the Exchange Act by the Commission or
any amendment or proposed amendment thereof by the Commission which in the
judgment of the Initial Purchaser would materially impair the ability of the
Initial Purchaser to purchase, hold or effect resales of the Securities as
contemplated hereby.
(k) There shall not have occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, of the Company and the Subsidiaries, taken as
a whole, from that set forth in the Final Memorandum that constitutes a Material
Adverse Effect and that makes it, in the Initial Purchaser's judgment,
impracticable to market the Notes on the terms and in the manner contemplated in
the Final Memorandum.
(l) Subsequent to the date of the most recent financial statements in the
Final Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), the conduct of the business and operations of the Company shall
not have been interfered with by strike, fire, flood, hurricane, accident or
other calamity (whether or not insured) or by any court or governmental action,
order or decree, and, except as otherwise stated therein, the properties of the
Company shall not have sustained any loss or damage (whether or not insured) as
a result of any such occurrence, except any such interference, loss or damage
which would not, individually or in the aggregate, have a Material Adverse
Effect.
(m) No securities of the Company shall have been downgraded or placed on
any "watch list" for possible downgrading by any nationally recognized
statistical rating organization.
(n) The Initial Purchaser shall have received certificates of the Company,
dated the Closing Date, signed by their respective Chairman of the Board,
President or any Senior Vice President and the Chief Financial Officer, to the
effect that:
(i) The representations and warranties of the Company contained in this
Agreement are true and correct as of the date hereof and as of the Closing Date,
and the Company has performed all covenants and agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to
the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the
most recent financial statements in the Final Memorandum (exclusive of any
amendment or supplement thereto after the date hereof), no event or events have
occurred, no information has become known nor does any condition exist that,
individually or in the aggregate, would have a Material Adverse Effect;
(iii) The sale of the Notes hereunder has not been enjoined (temporarily or
permanently); and
(iv) such other information as the Initial Purchaser may reasonably
request.
(o) COMFORCE Columbus Inc.'s tender offer for any and all outstanding
shares of Uniforce Services, Inc. the "Uniforce Tender Offer") shall have
expired, without the waiver of any material condition to the consummation
thereof set forth in COMFORCE Columbus Inc.'s Offer to Purchase, as amended
through the date hereof, and COMFORCE Columbus, Inc. shall have accepted for
payment an amount of shares of the common stock of Uniforce Services, Inc. equal
to no less than two thirds of all such shares issued and outstanding.
(p) The Initial Purchaser shall have received a certificate from the
corporate secretary of the Company, dated the Closing Date, attaching certified
copies of (i) all resolutions of the Board
of Directors of the Company or COMFORCE Corporation, as the case may be,
authorizing the transactions contemplated by this Agreement and (b) the Merger
Agreement, including, without limitation, approving the offering of the
Securities, the entering into this Agreement, the Indenture and the Registration
Rights Agreement, (ii) the certificate of incorporation and by-laws of the
Company, (iii) the Merger Agreement, and (iv) certifying the names and true
signatures of those officers of the Company executing any documents contemplated
by this Agreement.
(q) On or prior to the Closing Date, the Company shall have entered into a
Credit Agreement, to be dated as of November 26, 1997, among the Company, Xxxxxx
Financial, Inc., and any other financial institutions from time to time party
thereto, (the "Xxxxxx Facility") which in the sole judgment of the Initial
Purchaser, shall have been entered into on substantially the terms described in
the Final Memorandum.
(r) The Offering of 20,000 Units (the "Units") representing $20,000,000
aggregate principal amount of the 15% Senior Secured PIK Debentures due 2009 of
COMFORCE Corporation and 8.45 Warrants to purchase one share of Common Stock of
COMFORCE Corporation, in the sole judgment of the Initial Purchaser, shall have
been consummated as described in the Final Memorandum.
On or before the Closing Date, the Initial Purchaser and counsel for the
Initial Purchaser shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and the Subsidiaries as
they shall have heretofore reasonably requested from the Company and the
Subsidiaries.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchaser and counsel for the Initial Purchaser. The Company and the
Subsidiaries shall furnish to the Initial Purchaser such conformed copies of
such documents, opinions, certificates, letters, schedules and instruments in
such quantities as the Initial Purchaser shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. The Initial Purchaser
agrees with the Company that (i) it has not and will not solicit offers for, or
offer or sell, the Notes by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Act; and (ii) it has and will solicit offers for the Notes only from, and will
offer the Notes only to (A) in the case of offers inside the United States, (x)
persons whom the Initial Purchaser reasonably believes to be QIBs or, if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
the Initial Purchaser that each such account is a QIB, to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A or (y) a limited number of other
institutional investors reasonably believed by the Initial Purchaser to be
Accredited Investors that, prior to their purchase of the Notes, deliver to the
Initial Purchaser a letter containing the representations and agreements set
forth in Appendix A to the Final Memorandum and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers," which term shall include dealers or other professional fiduciaries
in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)); provided, however, that, in the case of this clause (B), in purchasing
such Notes such persons are deemed to have represented and agreed as provided
under the caption "Transfer Restrictions" contained in the Final Memorandum.
The Initial Purchaser represents and warrants that it is a QIB, with such
knowledge and experience in financial and business matters as are necessary in
order to evaluate the merits and risks of an investment in the Notes. The
Initial Purchaser agrees to comply with the applicable provisions of Rule 144A
and Regulation S under the Act. The Initial Purchaser hereby acknowledges that
the Company and, for purposes of the opinions to be delivered to the Initial
Purchaser pursuant to Section 7(a) hereof, counsel to the Company will rely upon
the accuracy and truth of the representations contained in this Section 8 and
the Initial Purchaser hereby consents to such reliance.
9. Indemnification and Contribution. (a) The Company and the Subsidiaries
jointly and severally agree to indemnify and hold harmless the Initial Purchaser
and its respective affiliates, directors, officers, agents, representatives
general partners and employees of such Initial Purchaser or its affiliates, and
each other person, if any, who controls the Initial Purchaser or its affiliates
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the full extent lawful against any losses, claims, damages, expenses or
liabilities (or action in respect thereof, including, without, limitation,
shareholder derivative actions and arbitration proceedings) to which the Initial
Purchaser or such other person may become subject under the Act, the Exchange
Act or otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Memorandum or any amendment or supplement thereto or any
application or other document, or any amendment or supplement thereto, executed
by the Company or the Subsidiaries or based upon written information furnished
by or on behalf of the Company or the Subsidiaries filed in any jurisdiction in
order to qualify the Notes under the securities or "Blue Sky" laws thereof or
filed with any securities association or securities exchange (each an
"Application");
(ii) the omission or alleged omission to state, in any Memorandum or any
amendment or supplement thereto or any Application, a material fact required to
be stated therein or necessary to make the statements therein not misleading; or
(iii) any breach of any of the representations and warranties of the
Company and the Subsidiaries set forth in this Agreement or the Registration
Rights Agreement,
and will reimburse, as incurred, the Initial Purchaser and each such other
person for any legal or other expenses incurred by the Initial Purchaser or such
other person in connection with investigating, defending against or appearing as
a third-party witness in connection with any such loss, claim, damage, liability
or action; provided, however, the Company and the Subsidiaries will not be
liable in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Memorandum or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information concerning the Initial Purchaser furnished
to the
Company by the Initial Purchaser specifically for use therein. This indemnity
agreement will be in addition to any liabilities or obligations that the Company
and the Subsidiaries may otherwise have to the indemnified parties, including
without limitation the indemnification obligations of the Company pursuant to
the NatWest Engagement. The Company and the Subsidiaries shall not be liable
under this Section 9 for any settlement of any claim or action effected without
its prior consent, which shall not be unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company, their directors, their officers and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any Memorandum or any amendment or supplement thereto or any
Application, or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Memorandum or any amendment or
supplement thereto or any Application, or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
concerning the Initial Purchaser, furnished to the Company or the Subsidiaries
by the Initial Purchaser specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Company, or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that the Initial Purchaser may
otherwise have to the indemnified parties. The Initial Purchaser shall not be
liable under this Section 9 for any settlement of any claim or action effected
without their written consent, which shall not be unreasonably withheld. The
Company and the Subsidiaries shall not, without the prior written consent of the
Initial Purchaser, effect any settlement or compromise of any pending or
threatened proceeding in respect of which the Initial Purchaser is or could have
been a party, or indemnity could have been sought hereunder by any Initial
Purchaser, unless such settlement (A) includes an unconditional written release
of the Initial Purchaser, in form and substance reasonably satisfactory to the
Initial Purchaser, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of the Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action for which such indemnified party is
entitled to indemnification under this Section 9, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 9, notify the indemnifying party of the commencement thereof in
writing; but the omission to so notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; provided, however, that if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have been advised by counsel that there may be one or
more legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, or
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after receipt by the indemnifying party of notice of the
institution of such action, then, in each such case, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Initial Purchaser
in the case of paragraph (a) of this Section 9 or either the Company or any of
the Subsidiaries in the case of paragraph (b) of this Section 9, representing
the indemnified parties under such paragraph (a) or paragraph (b), as the case
may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld), unless such
indemnified party waived in writing its rights under this Section 9, in which
case the indemnified party may effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 9 is unavailable to an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof), each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Notes or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one
hand and the Initial Purchaser on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of commissions and
before deducting expenses) received by the Company and the Subsidiaries bear to
the total discounts and commissions received by the Initial Purchaser. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand, or the Initial Purchaser on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission or alleged statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Initial Purchaser agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this paragraph (d), the
Initial Purchaser shall not be obligated to make contributions hereunder that in
the aggregate exceed the total discounts, commissions and other compensation
received by the Initial Purchaser under this Agreement, less the aggregate
amount of any damages that the Initial Purchaser has otherwise been required to
pay by reason of the untrue or alleged untrue statements or the omissions or
alleged omissions to state a material fact, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchaser, and each director of the Company, each officer of the Company
and each person, if any, who controls the Company or the Subsidiaries within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Company.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, their
respective officers and the Initial Purchaser set forth in this Agreement or
made by or on behalf of them pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company, any of their respective officers or directors, the Initial
Purchaser or any other person referred to in Section 9 hereof and (ii) delivery
of and payment for the Notes. The respective agreements, covenants, indemnities
and other statements set forth in Sections 6, 9 and 15 hereof shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchaser by notice to the Company given prior to the
Closing Date in the event that the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on their respective
part to be performed or satisfied hereunder at or prior thereto or, if at or
prior to the Closing any of the following shall have occurred:
(i) any of the Company or the Subsidiaries shall have sustained any loss or
interference with respect to its businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any strike, labor dispute, slow down or work stoppage or any legal or
governmental proceeding, which loss or interference has had, has or could be
reasonably likely to have a Material Adverse Effect, or there shall have been,
in the sole judgment of the Initial Purchaser, any event or development that,
individually or in the aggregate, has or could
be reasonably likely to have a Material Adverse Effect (including without
limitation a change in control of the Company or the Subsidiaries), except in
each case as described in the Final Memorandum (exclusive of any amendment or
supplement thereto);
(ii) there shall have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, of the Company and the Subsidiaries, taken as
a whole, from that set forth in the Final Memorandum that is material and
adverse and that makes it, in the Initial Purchaser's judgment, impracticable to
market the Notes on the terms and in the manner contemplated in the Final
Memorandum.
(iii) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange or the National Association of Securities Dealers, Inc. or the
setting of minimum prices for trading on such exchange or market shall have
occurred or trading of any securities of the Company shall have been suspended
on any exchange or in any over-the-counter market;
(iv) a banking moratorium shall have been declared by New York or United
States authorities;
(v) there shall have been (A) an outbreak or escalation of hostilities
between the United States and any foreign power, (B) an outbreak or escalation
of any other insurrection or armed conflict involving the United States, (C) any
material change in the financial markets of the United States or (D) any other
national or international calamity or emergency which, in the case of (A), (B),
(C) or (D) above and in the sole judgment of the Initial Purchaser, makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes as contemplated by the Final Memorandum;
(vi) the taking of any action by any federal, state or local government or
agency in respect of its monetary or fiscal affairs that has a material adverse
effect on the financial markets in the United States, and would, in the sole
judgment of the Initial Purchaser, make it impracticable or inadvisable to
market the Notes;
(vii) the proposal, enactment, publication, decree, or other promulgation
of any federal or state statute, regulation, rule or order of any court or other
governmental authority which, in the sole judgment of the Initial Purchaser,
would have a Material Adverse Effect;
(viii) any securities of the Company shall have been downgraded or placed
on any "watch list" for possible downgrading by any nationally recognized
statistical rating organization;
(ix) the Uniforce Tender Offer shall not have been consummated within ten
days of the date hereof;
(x) it shall have become impracticable, in the sole judgment of the Initial
Purchaser, for the Company to enter into the Xxxxxx Facility on the terms
described in the Final Memorandum; or
(xi) it shall have become impractical, in the sole judgment of the Initial
Purchaser,
for the Company to consummate the offering of the Units, on the terms described
in the Final Memorandum.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Sections
6 and 10 hereof.
12. Information Supplied by the Initial Purchaser. The statements set forth
in the last paragraph on the cover page of the Final Memorandum, the sixth
through ninth paragraphs under the heading "Note Plan of Distribution" and the
fifth through eighth paragraphs under the heading "Units Plan of Distribution,"
in the Final Memorandum (to the extent any such statements relate to the Initial
Purchaser) constitute the only information furnished by the Initial Purchaser to
the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and, if sent
to the Initial Purchaser, shall be mailed or delivered to (i) NatWest Capital
Markets Limited, 000 Xxxxxxxxxx, Xxxxxx, Xxxxxxx, Attention: Xxxxx Xxxx; with a
copy to White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx X. Xxxxxxx, Esq.; if sent to the Company, shall be mailed or
delivered to the Company at 0000 Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxx with a copy to Xxxxxxx, Keevican & Xxxxx, 58th Floor, USX
Tower, Pittsburgh, Pennsylvania 15219 Attention: Xxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; and one business day
after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be binding
upon the Initial Purchaser, the Company and their respective successors and
legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (i) the indemnities of the
Company and the Subsidiaries contained in Section 9 of this Agreement shall also
be for the benefit of any person or persons who control the Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Initial Purchaser contained in Section 9 of this
Agreement shall also be for the benefit of the directors of the Company and
officers and any person or persons who control the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of Notes
from the Initial Purchaser will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS
THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and the Initial Purchaser.
Very truly yours,
COMFORCE OPERATING, INC.
/s/ Xxxx X. Xxxxxx
By:_______________________
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
NATWEST CAPITAL MARKETS LIMITED
By:_________________________
Name:
Title:
