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(Name of Selling Stockholder)
CUSTODY AGREEMENT AND POWER OF ATTORNEY
for Sale of Common Stock of
RCM TECHNOLOGIES, INC.
Attorney-in-Fact:
Xx. Xxxx Xxxxx
c/o RCM Technologies, Inc.
0000 XxXxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Custodian:
Xx. Xxxxx Xxxxxx
Assistant Secretary
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxx and Xx. Xxxxxx:
RCM Technologies, Inc., a Nevada corporation (the "Company") and the
undersigned (the "Selling Stockholder") propose to sell certain shares of Common
Stock, $.05 par value per share, of the Company (the "Common Stock") to
underwriters (the "Underwriters") for whom Xxxxxx Xxxxxxxxxx Xxxxx Inc. and
Xxxx Xxxxx Xxxx Xxxxxx Incorporated will act as representatives (the
"Representatives") for distribution under a Registration Statement on Form S-1
(the "Registration Statement") to the public at a price and on terms to be
hereafter determined. It is understood that at this time there is no commitment
on the part of the Underwriters to purchase any shares of Common Stock and no
assurance that an offering of Common Stock will take place. The shares of Common
Stock that the undersigned proposes to sell to the Underwriters pursuant to the
underwriting agreement hereinafter mentioned are referred to herein as the
"Shares."
1. Appointment and Powers of Attorney-in-Fact.
A. The undersigned hereby irrevocably constitutes and appoints Xxxx
Xxxxx (the "Attorney-in-Fact"), as his agent and attorney-in-fact, with full
power of substitution, with respect to all matters arising in connection with
the public offering and sale of the Shares, including, but not limited to, the
power and authority on behalf of the undersigned to do or cause to be done any
of the following things:
(i) prepare, execute and deliver an Underwriting Agreement
(the "Underwriting Agreement"), substantially in the form of the draft dated
June 3, 1997, delivered to the undersigned herewith, receipt of which is
acknowledged, but with such insertions, changes, additions or deletions
(including, but not limited to, the determination of the offering price of the
Shares) as the Attorney-in-Fact shall approve in his sole discretion, such
approval to be conclusively evidenced by the execution and delivery of the
Underwriting Agreement by the Attorney-in-Fact on behalf of the undersigned;
(ii) sell, assign, transfer and deliver the Shares to the
Underwriters pursuant to the Underwriting Agreement and deliver to the
Underwriters certificates for the Shares so sold (the price for such shares to
be the same as that paid by the Underwriters to the Company);
(iii) take any and all steps deemed necessary or desirable by
the Attorney-in-Fact in connection with the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act" ), the Securities
Exchange Act of 1934, as amended, and under the securities or "blue sky" laws of
various states and jurisdictions, including, without limitation, the giving or
making of such undertakings, representations and agreements and the taking of
such other steps as the Attorney-in-Fact may deem necessary or advisable;
(iv) instruct the Company and the Custodian, as hereinafter
defined, on all matters pertaining to the sale of the Shares and delivery of
certificates therefor;
(v) provide, in accordance with the Underwriting Agreement,
for the payment of expenses of the offering and sale of the Common Stock covered
by the Registration Statement; and
(vi) otherwise take all actions and do all things necessary or
proper, required, contemplated or deemed advisable or desirable by the
Attorney-in-Fact in his discretion, including the execution and delivery of any
documents, and generally act for and in the name of the undersigned with respect
to the sale of the Shares to the Underwriters and the reoffering of the Shares
by the Underwriters as fully as could the undersigned if then personally present
and acting.
B. The Attorney-in-Fact may act alone in exercising the rights and
powers conferred on the Attorney-in-Fact by this Custody Agreement and Power of
Attorney ("this Agreement"). The Attorney-in-Fact is hereby empowered to
determine, in his sole and absolute discretion, the time or times when, the
purposes for which, and the manner in which, any power herein conferred upon the
Attorney-in-Fact shall be exercised.
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C. The Custodian (as defined below), the Representatives, the Company
and all other persons dealing with the Attorney-in-Fact as such may rely and act
upon any writing believed in good faith to be signed by the Attorney-in-Fact.
D. The Attorney-in-Fact shall not receive any compensation for his
services rendered hereunder, except that he shall be entitled to cause the
Custodian to pay, from the proceeds payable to the undersigned, the
undersigned's proportionate share of any out-of-pocket expenses incurred under
this Agreement.
2. Appointment of Custodian; Deposit of Shares.
A. In connection with and to facilitate the sale of the Shares to the
Underwriters, the undersigned hereby appoints American Stock Transfer & Trust
Company as custodian (the "Custodian") and herewith deposits with the Custodian
one or more certificates for Common Stock that represent not less than the total
number of Shares to be sold by the undersigned to the Underwriters, which number
is set forth on Schedule I hereto. Each such certificate so deposited is in
negotiable and proper deliverable form endorsed in blank with the signature of
the undersigned thereon guaranteed by a commercial bank or trust company in the
United States or by a member firm of the New York Stock Exchange, or is
accompanied by a duly executed stock power or powers in blank, bearing the
signature of the undersigned so guaranteed. The Custodian is hereby authorized
and directed, subject to the instructions of the Attorney-in-Fact, (a) to hold
in custody the certificate or certificates deposited herewith, (b) to deliver or
to authorize the Company's transfer agent to deliver the certificate or
certificates deposited hereunder (or replacement certificate(s) for the Shares)
to or at the direction of the Attorney-in-Fact in accordance with the terms of
the Underwriting Agreement and (c) to return or cause the Company's transfer
agent to return to the undersigned new certificate(s) for the shares of Common
Stock represented by any certificate deposited hereunder which are not sold
pursuant to the Underwriting Agreement. The Custodian shall be entitled to
customary compensation for the services to be rendered hereunder as set forth in
Schedule II attached hereto. Such compensation shall be paid to the Custodian by
the Company.
B. Until the Shares have been delivered to the Underwriters against
payment therefor in accordance with the Underwriting Agreement, the undersigned
shall retain all rights of ownership with respect to the Shares deposited
hereunder, including the right to vote and to receive all dividends and payment
thereon, except the right to retain custody of or dispose of such Shares, which
right is subject to this Agreement and the Underwriting Agreement.
3. Sale of Shares; Remitting Net Proceeds.
A. The Attorney-in-Fact is hereby authorized and directed to deliver or
cause the Custodian or the Company's Transfer Agent to deliver certificates for
the Shares to the Representatives, as provided in the Underwriting Agreement,
against delivery to the Attorney-in-Fact for the accounts of the undersigned of
the purchase price of the Shares, at the time and in the funds specified in the
Underwriting Agreement. The Attorney-in-Fact is authorized, on behalf of the
undersigned, to accept and acknowledge receipt of the payment of the purchase
price for the Shares and shall promptly remit to the undersigned his
proportionate share of the proceeds.
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4. Representations. Warranties and Agreements. The undersigned represents and
warrants to, and agrees with, the Company, the Attorney-in-Fact, the Custodian
and the Underwriters as follows:
A. The undersigned has full legal right, power and authority to enter
into and perform this Agreement and the Underwriting Agreement.
B. The undersigned has reviewed the representations and warranties to
be made by the undersigned as a Selling Stockholder contained in the
Underwriting Agreement, and hereby represents, warrants and covenants that each
of such representations and warranties is true and correct as of the date hereof
and, except as the undersigned shall have notified the Attorney-in-Fact pursuant
to paragraph F of the attached instructions, will be true and correct at all
times from the date hereof through and including the time of the closing of the
sale of the Shares to the Underwriters. The undersigned will promptly notify the
Attorney-in-Fact of any development that would make any such representation and
warranty untrue.
C. The undersigned is not directly or indirectly an affiliate of or
associated with any member of the National Association of Securities Dealers,
Inc.
D. Upon execution and delivery of the Underwriting Agreement by the
undersigned, the undersigned agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, each Underwriter and each person who controls the Company or any
Underwriter, and to contribute to amounts paid as a result of losses, claims,
damages, liabilities and expenses, as provided in Section 8(a) of the
Underwriting Agreement.
E. Upon execution and delivery of the Underwriting Agreement by the
undersigned, the undersigned agrees to be bound by and to perform each of the
covenants and agreements of the undersigned as a Selling Stockholder in the
Underwriting Agreement.
F. The undersigned agrees to deliver to the Attorney-in-Fact such
documentation as the Attorney-in-Fact, the Company or the Underwriters or any of
their respective counsel may reasonably request in order to effectuate any of
the provisions hereof or of the Underwriting Agreement, all of the foregoing to
be in form and substance satisfactory in all respects to the Attorney-in-Fact.
The foregoing representations, warranties and agreements are made for
the benefit of, and may be relied upon by, the Attorney-in-Fact, the Company,
the Custodian, the Underwriters and their respective representatives, agents and
counsel and are in addition to, and not in limitation of, the representations,
warranties and agreements of the Selling Stockholder in the Underwriting
Agreement.
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5. Irrevocability of Instruments: Termination of this Agreement.
A. This Agreement, the deposit of the Shares pursuant hereto and all
authority hereby conferred, is granted, made and conferred subject to and in
consideration of (i) the interests of the Attorney-in-Fact, the Underwriters and
the Company in and for the purpose of completing the transactions contemplated
hereunder and by the Underwriting Agreement and (ii) the completion of the
registration of Common Stock pursuant to the Registration Statement and the
other acts of the above-mentioned parties from the date hereof to and including
the execution and delivery of the Underwriting Agreement in anticipation of the
sale of Common Stock, including the Shares, to the Underwriters; and the
Attorney-in-Fact is hereby further vested with an estate, right, title and
interest in and to the Shares deposited herewith for the purpose of irrevocably
empowering and securing to him authority sufficient to consummate said
transactions. Accordingly, this Agreement shall be irrevocable prior to June 30,
1997, and shall remain in full force and effect until that date. The undersigned
further agrees that this Agreement shall not be terminated by operation of law
or upon the occurrence of any event whatsoever, including the death, disability
or incompetence of any of the undersigned. If any event referred to in the
preceding sentence shall occur, whether with or without notice thereof to the
Attorney-in-Fact, any of the Underwriters or any other person, the
Attorney-in-Fact shall nevertheless be authorized and empowered to deliver and
deal with the Shares deposited under the Agreement by the undersigned in
accordance with the terms and provisions of the Underwriting Agreement and this
Agreement as if such event had not occurred.
B. If the sale of the Shares contemplated by this Agreement is not
completed by June 30, 1997, this Agreement shall terminate (without affecting
any lawful action of the Attorney-in-Fact or the Custodian prior to such
termination), and the Attorney-in-Fact shall cause the Custodian to return to
the undersigned all certificates for the Shares deposited hereunder, but only
after having received payment of any expenses to be paid or borne by the Selling
Stockholder. The undersigned hereby covenants with the Attorney-in-Fact that if
for any reason the sale of the Shares contemplated hereby shall not be
consummated, the undersigned shall pay all expenses payable by the Selling
Stockholder hereunder or under the Underwriting Agreement.
6. Liability and Indemnification of the Attorney-in-Fact and Custodian. The
Attorney-in-Fact and the Custodian assume no responsibility or liability to the
undersigned or to any other person, other than to deal with the Shares, the
proceeds from the sale of the Shares and any other shares of Common Stock
deposited with the Custodian pursuant to the terms of this Agreement in
accordance with the provisions hereof. The duties and obligations of the
Custodian shall be limited to and determined solely by the express provisions of
this Agreement, and no implied duties or obligations shall be read into this
Agreement against the Custodian. The undersigned hereby agrees to indemnify and
hold harmless the Attorney-in-Fact and the Custodian, and their respective
officers, agents, successors, assigns and personal representatives with respect
to any act or omission of or by any of them in good faith in connection with any
and all matters within the scope of this Agreement or the Underwriting
Agreement; provided, however, that the Attorney-in-Fact and the Custodian may be
liable to the undersigned for any such act or omission to the extent
attributable to gross negligence or fraud. The Custodian may consult with
counsel of its own choice and shall have full and complete authorization and
protection for any action taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel.
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7. Interpretation.
A. The representations, warranties and agreements of the undersigned
contained herein and in the Underwriting Agreement shall survive the sale and
delivery of the Shares and the termination of this Agreement.
B. The validity, enforceability, interpretation and construction of
this Agreement shall be determined in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the State of
New York, and this Agreement shall inure to the benefit of, and be binding upon,
the undersigned and the undersigned's heirs, executors, administrators,
successors and assigns, as the case may be.
C. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any such provision shall be prohibited by or invalid under applicable
law, it shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
D. The use of the masculine gender in this Agreement includes the
feminine and neuter, and the use of the singular includes the plural, wherever
appropriate.
8. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned has executed this Custody Agreement and
Power of Attorney this ________ day of _____________, 1997.
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Signature of Selling Stockholder (Please sign exactly as your
Guaranteed by: Stockholder name appears on your
stock certificate(s).)
Name and address to
which notices and funds shall be
sent:
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(NAME)
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(STREET)
-----------------------------------
(CITY, STATE, ZIP CODE)
(NOTE: The signature of the Selling Stockholder must be guaranteed by a
commercial bank or trust company in the United States or by a member firm of the
New York Stock Exchange.)
ACCEPTED by the Attorney-in-Fact ACCEPTED by the Custodian
as of the date above set forth: as of the date above set forth:
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___________________________________ By: ______________________________
SEE THE ATTACHED INSTRUCTIONS
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INSTRUCTIONS
(For completing the Custody Agreement and Power of Attorney)
A. You have been sent five copies of the Custody Agreement and Power of
Attorney (the "Agreement"). Please complete and return four copies of the
Agreement and stock certificate(s) as set forth in paragraph D below. A fully
executed copy of the Agreement will be returned to you; a fully executed copy of
the Agreement and your stock certificate(s) will be retained by the Custodian;
and a fully executed copy of the Agreement will be delivered to the
Attorney-in-Fact and to the Representatives.
B. Complete Schedule I attached hereto.
C. Each copy of this Agreement and each stock certificate or stock
power deposited hereunder must be executed by you with your signature on this
Agreement and the stock certificate(s) or the accompanying stock power
guaranteed by a commercial bank or trust company in the United States or any
broker that is a member firm of the New York Stock Exchange. Please sign the
stock certificate(s) or stock power and the Agreement exactly as your name
appears on your stock certificate(s).
D. Endorsed stock certificate(s) or stock certificate(s) with stock
powers attached along with all four executed copies of the completed Agreement
should be promptly returned by hand delivery or by certified mail appropriately
insured to:
Xx. Xxxxx Xxxxxx
Assistant Secretary
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
If sent through the mail, it is recommended that the certificate(s) not be
endorsed, but an executed stock power be sent under separate cover from the
certificate(s).
E. If any certificate that you submit represents a greater number of
Shares than the aggregate number of Shares that you agree to sell pursuant to
the Underwriting Agreement, the Custodian will cause to be delivered to you in
due course, but not earlier than ten days after the closing for the purchase of
Shares by the Underwriters, a certificate for the excess number of Shares.
F. For purposes of discharging your obligations under the Underwriting
Agreement, please contact Xxxxx X. Xxxxxx of Xxxxxx Xxxxxxxxxx Xxxxx Inc. if any
information or representation included in the foregoing Agreement or the
Underwriting Agreement should change, or if you become aware of any new
information, at any time prior to termination of the period referred to in the
Underwriting Agreement.
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(Name of Selling Stockholder)
SCHEDULE I
Certificate(s) for Shares of Common Stock of
RCM TECHNOLOGIES, INC.
deposited under
Custody Agreement and Power of Attorney
Number of Shares of Number of Shares of
Common Stock Common Stock from this
Certificate Number Represented by Certificate Certificate to Be Sold*
--------------- ------------------------- -------------------------
--------------- ------------------------- -------------------------
--------------- ------------------------- -------------------------
--------------- ------------------------- -------------------------
--------------- ------------------------- -------------------------
--------------- ------------------------- -------------------------
Total: _________________________
*If fewer than all shares represented by a certificate are to be sold, indicate
below, if desired for income tax purposes, the date of purchase or purchase
price of the particular shares to be sold.
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SCHEDULE II
Fees of Custodian
Custodial Fees......................................................$____
