Exhibit 10.13
UNIT AGREEMENT
UNIT AGREEMENT dated as of November 26, 1997 between COMFORCE Corporation,
a Delaware corporation (the "Company"), and The Bank of New York, a New York
banking corporation.
WHEREAS, the Company proposes to issue 20,000 Units (the "Units")
representing $20,000,000 principal amount of 15% Senior Secured PIK Debentures
due 2009 (the "Debentures") with 169,000 warrants (the "Warrants") to purchase
one share of common stock of the Company, par value $0.01 per share (the "Common
Stock"), to be issued upon exercise of the Warrants (the "Warrant Shares"),
representing approximately 1% of the outstanding Common Stock of the Company on
a fully diluted basis;
WHEREAS, the Company and The Bank of New York, in its capacity as warrant
agent for the Warrants (the "Warrant Agent") and indenture trustee and registrar
for the Debentures (the "Trustee"), desire to appoint The Bank of New York to
act as their agent for the purpose of issuing certificates ("Unit Certificates")
representing the Units and registration of transfers and exchanges thereof. The
Bank of New York in such capacity is referred to herein as the "Unit Agent";
WHEREAS, the Units will be exchangeable for the Debentures and Warrants
represented thereby and will be separately transferable, subject to compliance
with applicable securities laws, on the earliest to occur of (i) February 24,
1998, (ii) such earlier date as may be determined by NatWest Capital Markets
Limited, in its capacity as the initial purchaser of the Units with the consent
of the Company, (iii) upon the occurrence of a Change of Control of the Company
(as defined in that certain Indenture dated as of November 26, 1997 between the
Company and The Bank of New York, as Trustee), and (iv) the effective date of a
registered exchange offer for the Debentures (the "Separability Date");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Unit Agent. (a) The Company hereby appoints the
Unit Agent to act as agent for the Company in accordance with the instructions
set forth hereinafter in this Agreement, and the Unit Agent hereby accepts such
appointment.
(b) The Trustee and the Company hereby appoint the Unit Agent as a
co-registrar for the Debentures for so long as the Debentures are represented by
the Units. In its capacity as a co-registrar, the Unit Agent shall have the
rights and obligations provided for a registrar in the Indenture governing the
Debentures.
(c) The Warrant Agent and the Company hereby appoint the Unit Agent as an
agent of the Warrant Agent for the purposes of maintaining a register of the
registered owners of and the registration of transfers and exchanges of the
Warrants represented by the Units.
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SECTION 2. Unit Certificates. (a) The Units will initially be issued either
in global form (the "Global Units"), or in registered form as definitive Unit
certificates ("Physical Units") substantially in the form of Exhibit A attached
hereto. Any certificates evidencing the Global Units to be delivered pursuant to
this Agreement shall be substantially in the form set forth in Exhibit A
attached hereto, and shall bear the legend set forth in Exhibit B attached
hereto. Such Global Units shall represent such of the outstanding Units as shall
be specified therein and each shall provide that it shall represent the
aggregate Units from time to time endorsed thereon and that the aggregate
amounts of outstanding Units represented thereby may from time to time be
reduced or increased, as appropriate. Any endorsement of a Global Unit to
reflect the amount of any increase or decrease in the amount of outstanding
Units represented thereby shall be made by the Unit Agent and Depository (as
defined blow) in accordance with instructions given by the holder thereof. The
Depository Trust Company shall act as the Depository with respect to the Global
Units until a successor shall be appointed by the Company and the Unit Agent.
Upon written request, a Unit holder may receive from the Depository and Unit
Agent Physical Units as set forth in Section 5 below.
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(b) Legends. Each Unit Certificate evidencing the Units (and all Units
issued in exchange therefor or substitution thereof) shall bear a legend
substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, UNITED STATES PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
UNITED STATES PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k)
UNDER THE SECURITIES ACT AS IN EFFECT WITH RESPECT TO SUCH TRANSFER, RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE UNIT AGENT A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE UNIT AGENT), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT AN INITIAL INVESTOR THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR PURCHASING AS DESCRIBED IN CLAUSE (1)(B)
ABOVE SHALL NOT BE PERMITTED TO TRANSFER THIS SECURITY TO AN INSTITUTIONAL
ACCREDITED INVESTOR. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
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APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE UNIT AGENT, DEBENTURE
TRUSTEE OR THE WARRANT AGENT, AS THE CASE MAY BE. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR PURCHASING PURSUANT TO
CLAUSE (2)(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE UNIT AGENT AND THE ISSUER, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "UNITED
STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE UNIT AGENT
TO REFUSE TO REGISTER ANY TRANSFER OF THIS UNIT IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
Each Unit Certificate that is a Global Unit shall bear the following legend
in addition to any other legend required by law or this Agreement:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR UNITS IN
DEFINITIVE FORM, THIS UNIT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR
ANY SUCH NOMINEE, TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. TRANSFERS OF THIS GLOBAL UNIT SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED
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REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
The Regulation S Global Unit shall bear the following legend on the face
thereof:
THIS UNIT MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON (AS SUCH TERM IS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD
(AS DEFINED IN THAT CERTAIN INDENTURE DATED NOVEMBER 26, 1997, BETWEEN THE
COMPANY AND THE BANK OF NEW YORK, IN ITS CAPACITY AS TRUSTEE), AND NO
TRANSFER OR EXCHANGE OF THIS UNIT MAY BE MADE FOR AN INTEREST IN A PHYSICAL
UNIT UNTIL AFTER THE LATER OF THE DATE OF EXPIRATION OF THE RESTRICTED
PERIOD AND THE DATE ON WHICH THE PROPER REQUIRED CERTIFICATION RELATING TO
SUCH INTEREST HAS BEEN PROVIDED IN ACCORDANCE WITH THE TERMS OF THE UNIT
AGREEMENT, TO THE EFFECT THAT THE BENEFICIAL OWNER OR OWNERS OF SUCH
INTEREST ARE NOT U.S. PERSONS.
SECTION 3. Execution of Unit Certificates. (a) Each Unit Certificate shall
be signed on behalf of the Company by its Chairman of the Board or its
President, Chief Executive Officer, Chief Operating Officer, Treasurer, Chief
Financial Officer or a Vice President and by its Secretary or an Assistant
Secretary. Each such signature upon the Unit Certificates may be in the form of
a facsimile signature of the present or any future Chairman of the Board,
President, Vice President, Chief Financial Officer, Treasurer, Secretary or
Assistant Secretary and may be imprinted or otherwise reproduced on the Unit
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, President,
Chief Executive Officer, Chief Operating Officer, Vice President, Treasurer,
Chief Financial Officer, Secretary or Assistant Secretary, notwithstanding the
fact that at the time the Unit Certificates shall be countersigned and delivered
or disposed of he shall have ceased to hold such office.
In case any officer of the Company who shall have signed any of the Unit
Certificates shall cease to be such officer before the Unit Certificates so
signed shall have been countersigned by the Unit Agent, or disposed of by the
Company, such Unit Certificates nevertheless may be countersigned and delivered
or disposed of as though such person had not ceased to be such officer of the
Company; and any Unit Certificate may be signed on behalf of the Company by any
person who, at the actual date of the execution of such Unit Certificate, shall
be a proper officer of the
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Company to sign such Unit Certificate, although at the date of the execution of
this Unit Agreement any such person was not such officer.
Unit Certificates shall be dated the date of counter-signature by the Unit
Agent.
SECTION 4. Registration and Countersignature. The Unit Agent, on behalf of
the Company, shall number and register the Unit Certificates in a register as
they are issued by the Company.
Unit Certificates shall be manually countersigned by the Unit Agent and
shall not be valid for any purpose unless so countersigned. The Unit Agent
shall, upon written instructions of the Chairman of the Board, the President,
Chief Executive Officer, Chief Operating Officer, a Vice President, Chief
Financial Officer, Treasurer, the Secretary or an Assistant Secretary of the
Company, initially countersign and deliver not more than 20,000 Units and shall
thereafter countersign and deliver Units as otherwise provided in this
Agreement.
The Company and the Unit Agent may deem and treat the registered holder(s)
of the Unit Certificates as the absolute owner(s) thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone) for all purposes,
and neither the Company nor the Unit Agent shall be affected by any notice to
the contrary.
SECTION 5. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Units. Prior to the Separability
Date, when Physical Units are presented to the Unit Agent with a request:
(i) to register the transfer of the Physical Units; or
(ii) to exchange such Physical Units for an equal number of Physical
Units of other authorized denominations,
The Unit Agent shall register the transfer or make the exchange as
requested if the requirements under this Agreement as set forth in this Section
5 for such transactions are met; provided, however, that the Physical Units
presented or surrendered for registration of transfer or exchange:
(x) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Unit Agent, duly executed by
the holder thereof or by his attorney, duly authorized in
writing; and
(y) in the case of Units the offer and sale of which have not been
registered under the Securities Act and are presented for
transfer or exchange prior to (x) the date which is two years
after the date of original issue and (y) such later date,
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if any, as may be required by any subsequent change in applicable
law (the "Resale Restriction Separation Date"), such Units shall
be accompanied by the following additional information and
documents, as applicable, however, it being understood that the
Unit Agent need not determine which clause (A) through (D) below
is applicable:
(A) if such Unit is being delivered to the Unit Agent by a
holder for registration in the name of such holder, without
transfer, a certification from such holder to that effect
(in substantially the form of Exhibit C hereto); or
(B) if such Unit is being transferred to a qualified
institutional buyer (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the
Securities Act or pursuant to an exemption for registration
in accordance with Rule 144 or Regulation S under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect (in substantially the form of Exhibit C hereto); or
(C) if such Unit is being transferred to an institutional
"accredited investor" within the meaning of subparagraph
(a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the
Securities Act, delivery of a Certificate of Transfer in the
form of Exhibit D hereto and an opinion of counsel and/or
other information satisfactory to the Company to the effect
that such transfer is in compliance with the Securities Act;
or
(D) if such Unit is being transferred in reliance on another
exemption from the registration requirements of the
Securities Act, a certification to that effect (in
substantially the form of Exhibit C hereto) and an opinion
of counsel reasonably acceptable to Company to the effect
that such transfer is in compliance with the Securities Act.
(b) Restrictions on Transfer of Physical Unit for a Beneficial Interest in
a Global Unit. A Physical Unit may not be exchanged for a beneficial interest in
a Global Unit except upon satisfaction of the requirements set forth below. Upon
receipt by the Unit Agent of a Physical Unit, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Unit Agent,
together with:
(i) certification, substantially in the form of Exhibit C hereto, that
such Physical Unit is being transferred to a qualified institutional buyer
(as defined in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act or in accordance
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with Regulation S under the Securities Act, or delivery of a Certificate of
transfer in the form of Exhibit D hereto if such Physical Unit is being
transferred to an accredited investor within the meaning of subparagraph
(a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the Securities Act; and
(ii) written instructions directing the Unit Agent to make, or to
direct the Depositary to make, and endorsement on the Global Unit to
reflect an increase in the aggregate amount of the Units represented by the
Global Unit,
then the Unit Agent shall cancel such Physical Unit and cause, or direct the
Depositary to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Unit Agent, the number of Units
represented by the Global Unit to be increased accordingly. If no Global Unit is
then outstanding, the Company shall issue and the Unit Agent shall authenticate
a new Global Unit in the appropriate amount.
(c) Transfer and Exchange of Global Units. The transfer and exchange of
Global Units or beneficial interests therein shall be effected through the
Depositary, in accordance with the Unit Agreement (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global Unit for a Physical Unit.
(i) Prior to the Separability Date, any person having a beneficial
interest in a Global Unit may upon request exchange such beneficial
interest for a Physical Unit. Upon receipt by the Unit Agent of written
instructions or such other form of instructions as is customary for the
Depositary from the Depositary or its nominee on behalf of any person
having a beneficial interest in a Global Unit and upon receipt by the Unit
Agent of a written order or such other form of instructions as is customary
for the Depositary or the person designated by the Depositary as having
such a beneficial interest containing registration instructions and, in the
case of any such transfer or exchange prior to the Resale Restriction
Separation Date, the following additional information and documents,
however, it being understood that the unit Agent need not determine which
clause (A) through (D) below is applicable:
(A) if such beneficial interest is being transferred to the
person designated by the Depositary as being the beneficial
owner, a certification from such person to that effect (in
substantially the form of Exhibit C hereto); or
(B) if such beneficial interest is being transferred to a
qualified institutional buyer (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the
Securities Act or pursuant
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to an exemption from registration in accordance with Rule
144 or Regulation S under the Securities Act or pursuant to
an effective registration statement under the Securities
Act, a certification to that effect from the transferee or
transferor (in substantially the form of Exhibit C hereto);
or
(C) if such beneficial interest is being transferred to an
institutional "accredited investor" within the meaning of
subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501
under the Securities act, delivery of a Certificate of
Transfer in the form of Exhibit D hereto and an opinion of
counsel and/or other information satisfactory to the Company
to the effect that such transfer is in compliance with the
Securities Act, or
(D) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of
the Securities Act, a certification to that effect from the
transferee or transferor (in substantially the form of
Exhibit C hereto) and an opinion of counsel from the
transferee or transferor reasonably acceptable to the
Company to the effect that such transfer is in compliance
with the Securities Act,
then the Unit Agent will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Unit Agent the aggregate
amount of the Global Unit to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the form of
an Officers' Certificate (as defined in Section 5(f) below), the Unit Agent will
authenticate and deliver to the transferee a Physical Unit.
(ii) Physical Units issued in exchange for a beneficial interest in a
Global Unit pursuant to this Section 5(d) shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the unit Agent in writing. The Unit Agent shall deliver such
Physical Units to the persons in whose names such Units are so registered.
(e) Restrictions on Transfer and Exchange of Global Units. Notwithstanding
any other provisions of this Agreement (other than the provisions set forth in
subsection (f) of this Section 5), a Global Unit may not be transferred as a
whole except by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or any such nominee of such Depositary.
(f) Authentication of Physical Units in Absence of Depositary. If at any
time:
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(i) the Depositary for the Units notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Unit and a successor Depositary for the Global Unit is not appointed by
Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Unit Agent in
writing that it elects to cause the issuance of Physical Units in place of
the Global Unit under this Unit Agreement,
then the Company will execute, and the Unit Agent, upon receipt of an officers'
certificate signed by two officers of the Company (one of whom must be the
principal executive officer, principal financial officer or principal accounting
officer) (an "Officer's Certificate") requesting the authentication and delivery
of Physical Units, will authenticate and deliver Physical Units, in an aggregate
number equal to the aggregate number of Units represented by the Global Unit, in
exchange for such Global Unit.
(g) Legends.
(i) Except as permitted by the following paragraph (ii), and unless
specified in an Officer's Certificate delivered to the Unit Agent defined,
each Unit Certificate evidencing the Global Units (and all Units issued in
exchange therefor or substitution thereof) shall bear the legends required
by Section 2(b).
(ii) Upon any sale or transfer of a Unit pursuant to Rule 144 under
the Securities Act or an effective registration statement under the
Securities Act:
(A) in the case of any Unit that is a Physical Unit, the Unit
Agent shall permit the holder thereof to exchange such Unit
for a Physical Unit that does not bear the legend required
by Section 2(b) in respect of Global Units and rescind any
related restriction on the transfer of such Unit; and
(B) any such Unit represented by a Global Unit shall not be
subject to the provisions set forth in (i) above (such sales
or transfers being subject only to the provisions of Section
5(c) hereof); provided, however, that with respect to any
request for an exchange of a Unit that is represented by a
Global Unit for a Physical Unit that does not bear the
legend required by Section 2(b) in respect of Global Units,
which request is made in reliance upon Rule 144 under the
Securities Act, the holder thereof shall certify in writing
to the Unit Agent that such request is being made pursuant
to Rule 144 under the Securities Act (such certification to
be substantially in the form of Exhibit C hereto).
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(h) Cancellation and/or Adjustment of a Global Unit. At such time as all
beneficial interest in a Global Unit have either been exchanged for Physical
Units, exchanged, redeemed, repurchased or cancelled, such Global Unit shall be
returned to or retained and cancelled by the Unit Agent. At any time prior to
such cancellation, if any beneficial interest in a Global Unit is exchanged for
Physical Units, redeemed, repurchased or cancelled, the number of units
represented by such Global Unit shall be reduced and an endorsement shall be
made on such Global Unit, by the Unit Agent to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of Physical Units.
(i) Prior to the Separation Date, to permit registrations of transfers
and exchanges, Company shall deliver to the Unit Agent, upon execution of
this Agreement, and from time to time thereafter, sufficient inventory of
executed Physical Units and Global Units.
(ii) All Physical Units and Global Units issued upon any registration,
transfer or exchange of Physical Units or Global Units shall be the valid
obligations of Company, entitled to the same benefits under this Unit
Agreement as the Physical Units or Global Units surrendered upon the
registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any
Unit, the Unit Agent and the Company may deem and treat the person in whose
name any Unit is registered as the absolute owner of such Unit, and neither
the Unit Agent nor the Company shall be affected by notice to the contrary.
(j) No Duty to Monitor Compliance. The Unit Agent shall be under no duty to
monitor compliance with any federal, state or other securities laws.
SECTION 6. Separation of the Debentures and Warrants. After the
Separability Date, the Debentures and the Warrants represented by the Units
shall be separately transferable. Upon presentation after the Separability Date
of any Unit Certificate for exchange for Debentures and Warrants or for
registration of transfer or otherwise, (i) the Unit Agent shall notify the
Trustee and the Warrant Agent of the number of Units so presented, the
registered owner thereof, such owner's registered address, the nature of any
legends or restrictive endorsements set forth on such Unit Certificate and any
other information provided by the holder thereof in connection therewith, (ii)
the Trustee, if the requirements of the Indenture with respect to the Debentures
for such transaction and any applicable legend are met, shall promptly register,
authenticate and deliver a new Debenture in aggregate principal amount equal in
number aggregate principal amount of the Debentures represented by such Unit
Certificate in accordance with the direction of such holder and (iii) the
Warrant Agent, if its requirements for such transactions are met, shall promptly
countersign, register and deliver a new Warrant Certificate for the number of
Warrants previously represented by such Unit Certificate in accordance with the
directions of such holder. The Warrant Agent and the
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Trustee will notify the Unit Agent of any additional requirements in connection
with a particular transfer or exchange.
Following the Separability Date, no Unit Certificates shall be issued upon
transfer or exchange of Unit Certificates, or otherwise.
SECTION 7. Rights of Unit Holders. The registered owner of a Unit
Certificate shall have all the rights and privileges of a registered owner of
the Debentures represented thereby and the number of Warrants represented
thereby and shall be treated as the registered owner thereof for all purposes.
The Company agrees that it shall be bound by all provisions of the Indenture
governing the Debentures, the Debentures, the Warrant Agreement and the Warrants
and that the Debentures and Warrants represented by each Unit Certificate shall
be deemed valid and obligatory obligations of the Company.
SECTION 8. Unit Agent. The Unit Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of
which the Company and the holders of Units, by their acceptance thereof, shall
be bound:
(a) The statements contained herein and in the Unit Certificates shall
be taken as statements of the Company, and the Unit Agent assumes no
responsibility for the correctness of any of the same except such as
describe the Unit Agent or action taken or to be taken by it. The Unit
Agent assumes no responsibility with respect to the distribution of the
Unit Certificates except as herein otherwise provided.
(b) The Unit Agent shall not be responsible for and shall incur no
liability to the Company or any holder of the Units for any failure of the
Company to comply with any of the covenants in this Agreement or in the
Unit Certificates to be complied with by the Company.
(c) The Unit Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company) and the Unit Agent shall incur
no liability or responsibility to the Company or to any holder of any Unit
Certificate in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of
such counsel provided, that the foregoing clause shall not apply if the
Unit Agent is found to have acted with willful misconduct or gross
negligence.
(d) The Unit Agent shall incur no liability or responsibility to the
Company or to any holder of any Unit Certificate for any action taken in
reliance on any unit Certificate, certificate of shares, notice,
resolution, waiver, consent, order, certificate or other paper, document or
instrument believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties provided, that the foregoing
clause shall not apply if the Unit Agent is found to have acted with
willful misconduct or gross negligence.
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(e) The Company agrees to pay to the Unit Agent reasonable
compensation for all services rendered by the Unit Agent in connection with
this Agreement, to reimburse the Unit Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by
the Unit Agent in the connection with this Agreement and to indemnify the
Unit Agent and its agents, employees, directors, officers and affiliates
and save it and them harmless against any and all liabilities, losses and
expenses including, with out limitation, judgments, costs and counsel fees
and actual expenses, for anything done or omitted by the Unit Agent in
connection with this Agreement except as a result of the Unit Agent's gross
negligence or willful misconduct.
(f) The Unit Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action unless the
Company or one or more registered holders of Unit Certificates shall
furnish the Unit Agent with security and indemnity for any costs and
expenses which may be incurred acceptable to the Unit Agent. This provision
shall not affect the power of the Unit Agent to take such action as it may
consider proper, whether with or without any such security or indemnity.
All rights of action under this Agreement or under any of the Units my be
enforced by the Unit Agent without the possession of any of the Unit
Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Unit Agent shall be brought in its name as Unit Agent and any recovery of
judgment shall be for the ratable benefit of the registered holders of the
Units, as their respective rights or interests may appear.
(g) The Unit Agent, and any stockholder, director, officer or employee
of it (the "Related Parties"), may buy, sell or deal in any of the
securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Unit Agent under this Agreement. Nothing herein shall preclude the
Unit Agent or such Related Parties from acting in any other capacity for
the Company or for any other legal entity.
(h) The Unit Agent shall act hereunder solely as agent for the
Company, the Trustee and the Warrant Agent, and its duties shall be
determined solely by the provisions hereof. The Unit Agent shall not be
liable for anything which it may do or refrain from doing in connection
with this Agreement except for its own gross negligence or bad faith or
willful misconduct.
(i) Before the Unit Agent acts or refrains from acting with respect to
any matter contemplated by this Unit Agreement, it may require:
(1) an officers' certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in
this Unit Agreement relating to the proposed action have
been complied with; and
-13-
(2) an opinion of counsel for the Company stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with.
Each officers' certificate or opinion of counsel with respect to compliance
with a condition or covenant provided for in this Unit Agreement shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
The Unit Agent shall not be liable for any action it takes or omits to take
in good faith in reliance on any such certificate or opinion.
(j) In the absence of bad faith on its part, the Unit Agent may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Unit
Agent and conforming to the requirements of this Unit Agreement. However, the
Unit Agent shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Unit Agreement.
(k) The Unit Agent may rely and shall be fully protected in relying upon
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Unit Agent need not investigate any fact or matter
stated in the document.
(l) The Unit Agent may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
SECTION 9. Notices to Company and Unit Agent, Trustee and Warrant Agent.
Any notice or demand authorized by this Agreement to be given or made to or on
the Company shall be sufficiently given or made when and if deposited in the
mail, first class or registered, postage paid, addressed
-14-
If to the Company:
COMFORCE Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Doepken, Keevican & ▇▇▇▇▇
58th Floor, USX Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇▇▇▇
If to the Unit Agent, Warrant Agent or the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The parties hereto by notice to the other parties may designate additional
or different addresses for subsequent communications or notice.
Any notice to be mailed to a holder of Units shall be mailed to him or her
at the address that appears on the register of Units maintained by the Unit
Agent. Copies of any such communication shall also be mailed to the Unit Agent,
Trustee and Warrant Agent. The Unit Agent shall furnish the Company, the Trustee
or the Warrant Agent promptly when requested with a list of registered holders
of Units for the purpose of mailing any notice or communication to the holders
of the Debentures or Warrants and at such other times as may be reasonably
requested.
SECTION 10. Change of Unit Agent. The Unit Agent may resign and be
discharged from its duties under this Agreement by giving to the Company 30
days' notice in writing; provided that the Unit Agent may not resign unless it
simultaneously resigns as Trustee under the Indenture governing the Debentures
and as Warrant Agent under the Warrant Agreement. The Unit Agent may be removed
by like notice to the Unit Agent from the Company. If the Unit Agent shall
resign or
-15-
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Unit Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Unit Agent or by any holder of the Units (who shall with such
notice submit his Unit for inspection by the Company), then the resigning or
incapacitated Unit Agent or any such holder may apply to any court of competent
jurisdiction for the appointment of a successor to the Unit Agent. Pending
appointment of a successor to the Unit Agent, either by the Company or by such
court, the duties of the Unit Agent shall be carried out by the Company. Any
successor Unit Agent, whether appointed by the Company or such a court, shall be
a suitable alternate, experi enced in these duties and in good standing,
incorporated under the laws of the United States of America or any State thereof
or the District of Columbia and having at the time of its appointment as Unit
Agent a combined capital and surplus of at least $500,000,000. After
appointment, the successor Unit Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Unit
Agent without further act or deed; but the former Unit Agent shall deliver and
transfer to the successor Unit Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for such purpose. Failure to file any notice provided for in this
Section 9, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Unit Agent or the appointment of
the successor Unit Agent, as the case may be. In the event of such resignation
or removal, the Company or the successor Unit Agent shall mail by first class
mail, postage prepaid, to each holder of the Units, written notice of such
removal or resignation and the name and address of such successor Unit Agent.
SECTION 11. Supplements and Amendments. The Company, the Trustee, the
Warrant Agent and the Unit Agent may from time to time supplement or amend this
Agreement without the approval of any holders of Unit Certificates in order to
cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company, the Trustee, the Warrant Agent and the Unit Agent may deem
necessary or desirable and which shall not in any way adversely affect the
interests of the holders of Unit Certificates. Any amendment or supplement to
this Agreement that has a material adverse effect on the interests of the Unit
holders shall require the written consent of registered holders of a majority of
the then outstanding Units.
SECTION 12. Successors. All covenants and provisions of this Agreement by
or for the benefit of the Company, the Trustee, the Warrant Agent or the Unit
Agent shall bind and inure to the benefit of their respective successors and
assigns hereunder.
SECTION 13. Governing Law. THIS AGREEMENT AND EACH UNIT CERTIFICATE ISSUED
HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE, WITHOUT REGARD
-16-
TO THE CONFLICT OF LAW RULES THEREOF.
SECTION 14. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Trustee, the Warrant Agent, the Unit Agent and the registered holders of the
Unit Certificates any legal or equitable right, remedy or claim under this
Agreement, but this Agreement shall be for the sole and exclusive benefit of the
Company, the Trustee, the Warrant Agent, the Unit Agent and the registered
holders of the Unit Certificates.
SECTION 15. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
COMFORCE CORPORATION
By __________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee,
Warrant Agent and Unit Agent
By __________________________
Name:
Title:
-18-
EXHIBIT A
---------
[FORM OF SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
UNITED STATES PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT
IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR)" OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT,
WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT WITH RESPECT TO SUCH TRANSFER,
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR
TO SUCH TRANSFER, FURNISHES TO THE UNIT AGENT A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE UNIT
AGENT), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT AN
INITIAL INVESTOR THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR PURCHASING AS DESCRIBED IN CLAUSE (1)(B) ABOVE
SHALL NOT BE PERMITTED TO TRANSFER THIS SECURITY TO AN
INSTITUTIONAL ACCREDITED INVESTOR, IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE UNIT AGENT,
IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR PURCHASING PURSUANT TO CLAUSE (2)(C) ABOVE, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE UNIT
AGENT AND THE ISSUER, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE
TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "UNITED STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE UNIT AGENT TO REFUSE TO
REGISTER ANY TRANSFER OF THIS UNIT IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
COMFORCE CORPORATION
Units Consisting of
$1,000 Principal Amount of 15%
Senior Secured PIK Debentures due 2009
and 8.45 Warrants, each to Purchase One Share of Common Stock
No. CUSIP No. [ ]
COMFORCE Corporation, a Delaware corporation (the "Company"), which term
includes any successor corporation, hereby certifies that [ ] is the owner
of [ ] Units as described above, transferable only on the books of the
Company by the holder thereof in person or by his or her duly authorized
attorney on surrender of this Certificate properly endorsed. Each Unit consists
of $1,000 principal amount of 15% Senior Secured PIK Debentures due 2009 (the
"Debentures") and 8.45 Warrants (the "Warrants"), each to purchase one share of
Common Stock, par value $0.01 per share, of the Company. This Unit is issued
pursuant to the Unit Agreement (the "Unit Agreement") dated as of November 26,
1997 among the Company and The Bank of New York, as Unit Agent (the "Unit
Agent"), Trustee and Warrant Agent, and is subject to the terms and provisions
contained therein, to all of which terms and provisions the holder of this Unit
Certificate consents by acceptance hereof. The terms of the Debentures are
governed by an Indenture dated as of November 26, 1997 (the "Indenture"),
between the Company and The Bank of New York, as Trustee, and are subject to the
terms and provisions contained therein, to all of which terms and provisions the
holder of this Unit Certificate consents by acceptance hereof.
Reference is made to the further provisions of this Unit Certificate
contained herein, which will for all purposes have the same effect as if set
forth at this place. Reference is also made to the Warrant Agreement (the
"Warrant Agreement") dated as of November 26, 1997 between the Company and The
Bank of New York, as Warrant Agent, which governs the terms of the Warrants, to
all of which terms and provisions the holder of this Unit Certificate consents
by acceptance hereof. Copies of the Unit Agreement, the Indenture and the
Warrant Agreement are on file at the office of the Company, available to any
holder on written request and without cost.
The Debentures and Warrants of the Company represented by this Unit
Certificate shall be immediately detachable and separately transferable until
the next day after the sale by the Initial Purchasers.
Dated:
COMFORCE CORPORATION
By________________________
Name:
Title:
Countersigned:
THE BANK OF NEW YORK
as Unit Agent
By___________________________
Name:
Title:
SCHEDULE OF INCREASES OR DECREASES OF DEBENTURES
The following increases or decreases in this Global Debenture have been
made:
Number of
Amount of Amount of Debentures of
decrease in increase in this Global Signature of
Number of Number of Debenture authorized
Date of Debentures of Debentures of following such signatory of
Exchange this Global this Global decrease or Trustee
Debenture Debenture increase
--------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
(Insert assignee's soc. sec or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
Date:_____________________
Your Signature:__________________________
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:
------------------------------
(Signatures must be guaranteed
by an "eligible guarantor
institution" meeting the
requirements of the Unit
Agent, which requirements will
include membership or
participation in the
Securities Transfer Agents
Medallion Program ("STAMP") or
such other "signature
guarantee program" as may be
determined by the Unit Agent
in addition to, or in
substitution for, STAMP, all
in accordance with the
Securities Exchange Act of
1934, as amended.)
EXHIBIT B
---------
[LEGEND FORM FOR GLOBAL UNITS]
Any Global Unit authenticated and delivered hereunder shall bear a legend
which would be in addition to any other legends required in the case of a
Restricted Security) in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR UNITS IN DEFINITIVE
FORM, THIS UNIT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE
DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE, TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. TRANSFERS OF
THIS GLOBAL UNIT SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE,
AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EXHIBIT C
---------
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OR TRANSFER OF UNITS
Re: Units (the "Units") of COMFORCE Corporation each consisting of $1,000
principal amounts of 15% Senior Secured PIK Debentures and 8.45
Warrants to purchase one share of Common Stock.
This Certificate relates to ____ Units held in* ____ book-entry or* ____
certificated form by ____ (the "Transferor").
The Transferor.*
_ has requested the Unit Agent by written order to deliver in exchange for
its beneficial interest in the Global Unit held by the depositary a Unit or
Units in definitive, registered form of authorized denominations and an
aggregate number equal to its beneficial interest in such Global Unit (or the
portion thereof indicated above); or
_ has requested the Unit Agent by written order to exchange or register the
transfer of a Unit or Units.
In connection with such request and in respect of each such Unit, the
Transferor does hereby certify that the Transferor is familiar with the Unit
Agreement relating to the above captioned Units and the restrictions on
transfers thereof as provided in Section 5 of such Unit Agreement, and that the
transfer of this Unit does not require registration under the Securities Act of
1933, as amended (the "Securities Act"), because[*]:
_ Such Unit is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 5(a)(y)(A) or Section 5(d)(i)(A) of the
Unit Agreement).
_ Such Unit is being transferred to a qualified institutional buyer (as
defined in Rule 144A under the Securities Act) in reliance on Rule 144A or in
accordance with Regulation S under the Securities Act.
_ Such Unit is being transferred in accordance with Rule 144 under the
Securities Act.
Exhibit C
Page 2
_ Such Unit is being transferred in accordance with Regulation S under the
Securities Act.
_ Such Unit is being transferred in reliance on and in compliance with an
exemption from the registration requirements of the Securities Act, other than
Rule 144A or Rule 144 or Regulation S under the Securities Act. An opinion of
counsel to the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate.
----------------------------------
[INSERT NAME OF TRANSFEROR]
By:_______________________________
Date:_________________________
*Check applicable box.
EXHIBIT D
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Units (the "Units") of COMFORCE Corporation each consisting of $1,000
principal amount of 15% Senior Secured PIK Debentures and 8.45 Warrants to
purchase one share of Common Stock
Ladies and Gentlemen:
In connection with our proposed purchase of Units, of the Company, we
confirm that:
1. We have received such information as we deem necessary in order to make
our investment decision.
2. We understand that any subsequent transfer of the Units is subject to
certain restrictions and conditions set forth in the Unit Agreement and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Units except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Units have not been
registered under the Securities Act, and that the Securities may not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Units, we will do so only (A) to the Company
or any subsidiary thereof, (B) inside the United States in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as defined
therein), (C) inside the United States to an institutional "accredited investor"
(as defined below) that, prior to such transfer, furnishes to the Unit Agent a
signed letter substantially in the form hereof, (D) outside the United States in
accordance with Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available), or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing Units
from us a
Exhibit D
Page 2
notice advising such purchaser that resales of the Units are restricted as
stated herein.
4. We understand that, on any proposed resale of Units, we will be required
to furnish to the Unit Agent and the Company, such certification, legal opinions
and other information as the Unit Agent and the Company may reasonably require
to confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Units purchased by us will bear a legend to the
foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Units, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or their investment, as the case may be.
6. We are acquiring the Units purchased by us for our account or for one or
more accounts (each of which is an institutional "accredited investor") as to
each of which we exercise sole investment discretion.
Exhibit D
Page 3
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
(Name of Transferor)
By:_____________________________
(Authorized Signatory)
