-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Dp/Kfe908JpV22mQET03plTpz1sVMlE1wAf53EjCCoRjCTi+JfBI18FZTWal/f+m xuosAvPPf75FcZqP8VPTEg== 0000950152-98-000716.txt : 19980206 0000950152-98-000716.hdr.sgml : 19980206 ACCESSION NUMBER: 0000950152-98-000716 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980205 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRANSMATION INC CENTRAL INDEX KEY: 0000099302 STANDARD INDUSTRIAL CLASSIFICATION: INSTRUMENTS FOR MEAS & TESTING OF ELECTRICITY & ELEC SIGNALS [3825] IRS NUMBER: 160874418 STATE OF INCORPORATION: OH FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-42345 FILM NUMBER: 98522108 BUSINESS ADDRESS: STREET 1: 10 VANTAGE PT CITY: ROCHESTER STATE: NY ZIP: 14624 BUSINESS PHONE: 7163527777 MAIL ADDRESS: STREET 1: 10 VANTAGE PT CITY: ROCHESTER STATE: NY ZIP: 14624 S-3/A 1 TRANSMATION, INC. FORM S-3/AMENDMENT #1 1 As filed with the Securities and Exchange Commission on February 5, 1998 REGISTRATION NO. 333-42345 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ AMENDMENT NO. 1 to FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 TRANSMATION, INC. (Exact name of Registrant as specified in its charter) OHIO 16-0874418 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 10 VANTAGE POINT DRIVE ROCHESTER, NEW YORK 14624 (716) 352-7777 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ROBERT G. KLIMASEWSKI PRESIDENT AND CHIEF EXECUTIVE OFFICER TRANSMATION, INC. 10 VANTAGE POINT DRIVE ROCHESTER, NEW YORK 14624 (716) 352-7777 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: Susan Mascette Brandt, Esq. Harter, Secrest & Emery LLP 700 Midtown Tower Rochester, New York 14604-2070 (716) 232-6500 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] 2 If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. 3 PROSPECTUS 762,524 SHARES OF COMMON STOCK TRANSMATION, INC. All of the 762,524 shares of Common Stock, par value $.50 per share (the "Common Stock"), of Transmation, Inc., an Ohio corporation ("Transmation" or the "Company"), offered hereby (the "Shares") are being offered for the account of a certain shareholder of the Company (the "Selling Shareholder"). The Company will receive none of the proceeds from the sale of the Shares. The Common Stock is listed on the Nasdaq National Market System (the "Nasdaq") under the symbol "TRNS." On February 2, 1998, the closing price of the Common Stock on the Nasdaq was $8.00 per share. The Shares may be sold by the Selling Shareholder in transactions on the Nasdaq at prices and on terms related to the then current market price of the Common Stock, in privately negotiated transactions at such prices as may be agreed upon, or in a combination of such methods of sale. In connection with any sales, the Selling Shareholder and any brokers or dealers participating in such sales may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, as amended (the "Securities Act"). See "Plan of Distribution." The Company will pay all fees and expenses incident to the registration of the Shares offered hereby, other than the following expenses which will be borne by the Selling Shareholder: discounts and commissions payable to brokers or dealers in respect of sales of the Shares, stock transfer taxes and (except to the extent covered by a certain expense reimbursement obligation of the Company) the expenses of the Selling Shareholder's counsel, accountants and other advisors. See "Plan of Distribution" and "Selling Shareholder." SEE "RISK FACTORS" STARTING ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS TO BE CONSIDERED BY PROSPECTIVE INVESTORS. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
=========================================================================================== Price to Public Placement Agent Fees(1) Proceeds to Selling Shareholder - ------------------------------------------------------------------------------------------- Per Share $7.125 $0.405 $6.72 - ------------------------------------------------------------------------------------------- Total $5,432,984 $308,822 $5,124,162 ===========================================================================================
(1) The Shares initially will be offered for sale by the Selling Shareholder through Joseph Charles and Associates, Inc. as Placement Agent (the "Placement Agent"), pursuant to a placement agency agreement. The Placement Agent is not obligated to place any minimum number of Shares. Except in the placement of the Shares to others, the Placement Agent is not obligated to and does not intend to purchase any of the Shares offered hereby. On the basis of a price to the public of $7.125 per share as specified above, the Selling Shareholder has agreed to pay the Placement Agent the fee specified above as the selling commission or discount. The Selling Shareholder and the Company have each agreed to indemnify the Placement Agent against certain liabilities, including liabilities under the Securities Act. See "Plan of Distribution." The date of this Prospectus is February 5, 1998. 4 NO PERSON IS AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND ANY INFORMATION OR REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE HEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Reports, proxy statements and other information filed by the Company with the Commission can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at 7 World Trade Center, Suite 1300, New York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can also be obtained from the Commission at prescribed rates through its Public Reference Section at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission maintains a Website (http://www.sec.gov) that contains reports, proxy statements and other information required of registrants, such as the Company, that file electronically with the Commission. The Company has filed with the Commission a Registration Statement on Form S-3 under the Securities Act with respect to the Common Stock offered hereby (including all amendments or supplements thereto, the "Registration Statement"). This Prospectus, which forms a part of the Registration Statement, does not contain all the information set forth in the Registration Statement, certain parts of which have been omitted in accordance with the rules and regulations of the Commission. Statements contained herein concerning the provisions of certain documents are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference. 5 THE COMPANY Transmation, Inc., an Ohio corporation organized in 1964, is primarily engaged in the sale and distribution, development, manufacture and service of electronic instrumentation which is used principally for measurement, indication and transmission of information. The principal products sold and serviced by Transmation fall within two main categories: - Test, measurement and calibration equipment - Instruments used for calibrating, measuring and testing many physical parameters in industry and science. These products are manufactured by Transmation or by other manufacturers and are distributed and serviced by Transmation. - Process monitoring instrumentation - A line of instrumentation which measures low level signals, proportional to some parameter such as temperature, and then amplifies the measurement to permit transmission to a receiving device which may be used to alter the process or trigger an alarm. Certain of these products may be used to monitor one or more points of a process by multiplexing information into one or more digital devices. These products are manufactured, distributed and serviced by Transmation. Products and services sold range in price from approximately $100 for a single calibration service to more than $200,000 for a large multiplexing system. The principal market for Transmation's products and services is within the process industry and is primarily directed to the petroleum refining and chemical manufacturing industries, and secondarily to the pulp and paper, gas pipeline and primary metals industries. Transmation's sales are accomplished through a catalog distribution division, the Transcat/EIL Division ("Transcat/EIL"), a manufacturing division, the Instrument Division, a manufacturing subsidiary, Altek Industries Corp. ("Altek"), and four foreign sales subsidiaries. Sales of test, measurement and calibration equipment and services are principally made through Transcat/EIL, which sells through a catalog distributed to existing and prospective customers, and through direct salespeople in selected locations in the United States and Canada. Transcat/EIL sells Transmation-manufactured products and resells the products of approximately 200 other manufacturers through an annual catalog, which is currently approximately 550 pages. To date, more than one million catalogs have been distributed through this part of Transmation's sales and marketing effort. In addition to the annual catalog, Transcat/EIL makes periodic mailings to existing and prospective customers to spur additional sales as well as to generate names for future catalog or product mailings. In addition to catalog sales, Transmation engages in direct sales of test, measurement and calibration equipment and services as well as process monitoring instrumentation. The Company employs over 30 direct sales people in Transcat/EIL and four sales managers in the Instrument Division and Altek. Two sales people are employed in Australia to manage Far Eastern sales representative or distributor organizations and to direct sell in Australia. The Company also maintains one regional sales manager in Singapore. In addition, the Company has arrangements with over 65 sales representative and distributor organizations, each employing one or 6 more sales engineers, located in other areas of concentrated demand for Transmation's products in the United States, Canada, the Far East, Central and South America, Australia, the Middle East and Eastern and Western Europe. These sales representatives and distributors either promote Transmation's products on a commission basis or purchase them from Transmation at a discount and resell to end users at a gross price. The Company's Transcat/EIL CalXPress operations, which are ISO 9002 registered, provide periodic calibration and repair services for customers owning instrumentation manufactured by others and by Transmation. At December 31, 1997, there were Transcat/EIL CalXPress facilities in 14 locations in the United States and Canada. The Company's two manufacturing operations, both located in Rochester, New York, primarily develop, manufacture and sell electronic and pneumatic instrumentation used to calibrate and test instrumentation used primarily in the process industries. The Instrument Division's facility has ISO 9001 registration. The Company's value added operations, which customize, modify and repair analog gauges, are located in Dayton, Ohio, Buffalo, New York and Baltimore, Maryland. Since the beginning of the last fiscal year, Transmation has expanded its business through two acquisitions: ALTEK ACQUISITION. In April 1996 the Company acquired all of the stock of Altek, a manufacturer of electronic calibration equipment, for cash and notes aggregating $4.8 million, and 300,000 shares of Common Stock. As a result of this acquisition, the Company's sales have increased by more than $5 million annually. EIL ACQUISITION. In April 1997 the Company acquired substantially all of the assets of the Sales and Service Division of E.I.L. Instruments, Inc., a distributor and servicer of electronic test, measurement and calibration instrumentation, for $22 million in cash and the value of certain assumed liabilities (subject to post-closing adjustment). As a result of this acquisition, the Company has added a significant base of potential new customers, a value added meter modification business and several new product lines, and has significantly increased its overall capabilities to provide repair, calibration and certification services. Transmation's future performance will depend substantially on its ability to integrate and manage its acquired businesses and operations, to respond to competitive developments, to further develop markets for its products and services, to anticipate future customer needs and to provide solutions for customers in a timely, cost-effective manner. The Company's principal executive offices are located at 10 Vantage Point Drive, Rochester, New York 14624. Its telephone number is (716) 352-7777. FORWARD-LOOKING STATEMENTS This Prospectus and the documents incorporated herein by reference may contain forward- looking statements based on current expectations, estimates and projections about Transmation's industry, management's beliefs and assumptions made by management. Words such as "antici- 2 7 pates," "expects," "intends," "plans," "believes," "seeks," "estimates," variations of such words and similar expressions are intended to identify such forward-looking statements. These statements are not guarantees of future performance and are subject to certain risks, uncertainties and assumptions that are difficult to forecast. Therefore, actual results may differ materially from those expressed or forecast in any such forward-looking statements. Such risks and uncertainties include, in addition to those set forth herein under "Risk Factors," those noted in the documents incorporated herein by reference. Transmation undertakes no obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise. RISK FACTORS PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE FACTORS SET FORTH BELOW, IN ADDITION TO THE OTHER INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS, IN EVALUATING AN INVESTMENT IN THE COMMON STOCK OFFERED HEREBY. INTEGRATION OF ACQUISITIONS AND MANAGEMENT OF GROWTH. Since April 1, 1996, the Company has acquired one manufacturing business and one business engaged in the distribution and service of products. See "The Company." This has resulted in a 150% increase in the Company's work force, the addition of one manufacturing facility, the addition of three value added operations and the addition of ten service facilities. The Company is in the process of integrating the acquired operations and efforts are underway to assimilate into Transmation the products and services formerly sold independently by the acquired businesses, their operations, corporate cultures, product lines, personnel, management information systems, financial control systems, facilities infrastructure and customer relationships. There can be no assurance that the Company will be successful in these efforts. If the Company is unable to integrate and manage all of the elements of these acquisitions effectively and efficiently, it could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. In addition, if the Company continues to experience rapid growth, a significant strain may be placed on its financial, management and other resources. The Company's ability to manage growth effectively will require it to continue to improve its operational and financial control systems, infrastructure and management information systems, and to attract, train, motivate, manage and retain key employees. There can be no assurance that the Company will be successful in doing so. If the Company is not able to manage growth effectively, there could be a material adverse effect on the Company's business, prospects, results of operations and financial condition. COMPETITION. The market to which the Company sells the products it manufactures is highly competitive, and the Company expects that competition will increase in the future. Failure to keep pace with rapid technological advances, which characterize the industry, could adversely affect the Company's competitive position with respect to the products it manufactures and the way it distributes its products. In its manufacturing operations, the Company competes on the basis of price, performance, inventory availability, quality, reliability and customer service and support. To maintain its competitive position with respect to manufactured product, the Company must continue to develop new products, periodically enhance its existing products, 3 8 reduce its cost of manufacturing such products, maintain the quality of its products and compete effectively in the areas described above. Although the Company believes that its products are competitive in each of the above-described areas, there can be no assurance that existing or future competitors, some of which have greater financial resources than the Company, will not introduce comparable or superior products incorporating more advanced technology at lower prices. The Company's competitors are numerous, ranging from large corporations to many relatively small and highly specialized firms. Although no single company competes in all of the Company's product markets, some of the major competitors which compete in the Company's individual product markets include Fluke Corporation, Beta (a division of Hathaway Corporation) and certain divisions of Ametek Corporation. Some of these competitors have more extensive sales, distribution, engineering, manufacturing and/or marketing capabilities and substantially greater financial, technological and personnel resources than does the Company. The markets to which the Company through Transcat/EIL sells products and related services is also highly competitive. Competition for sales in distribution and service is quite fragmented and ranges from large, well financed national distributors to small local distribution organizations and service providers, as well as the manufacturers of the products themselves. Transcat/EIL competes on the basis of price, inventory availability, service quality and customer service and support. To maintain its competitive position with respect to such products and services, the Company must continually demonstrate to customers its commitment to achieving the highest level of performance possible for a distributor and compete effectively in the areas described above. There can be no assurance that the Company will be successful in doing so. DEPENDENCE ON SUPPLIERS. Products required for Transcat/EIL's sales are generally available from only one source per product (the manufacturer), although on occasion substitutions of product are possible. If the Company's source for a particular product is unable to deliver such product or delivers product of unacceptable or unusable quality, the Company may have no acceptable alternative product to satisfy customers' demands. In such event, customers may choose to order products through competitors of the Company, which could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. In addition, a portion of the Company's manufacturing operations is dependent on the ability of suppliers to deliver completed products, sub-assemblies or components in time to meet critical distribution and manufacturing schedules. In certain instances, important parts and components are available through fewer suppliers than the Company deems suitable. In the event that certain of the Company's suppliers should fail to deliver components to the Company or deliver components of an unacceptable or unusable quality, delays in the production of the Company's products could result, which in turn could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. FOREIGN SALES. A significant portion of Transmation's sales are generated outside of the United States, primarily as the result of sales of products distributed through the Transcat/EIL catalog. Approximately 27.8% of Transmation's sales in the fiscal year ended March 31, 1997 resulted from sales in foreign countries, as compared with 20.7% of sales in the fiscal year ended March 31, 1996 and 22.7% of sales in the fiscal year ended March 31, 1995. Management believes that until recently, the relatively lower value of the dollar compared to foreign 4 9 currencies has had a positive effect on international sales. However, increased strength of the dollar, particularly compared to currencies of Pacific Rim countries, could negatively affect future international sales. In addition, Transmation's revenues are subject to the customary risks of operating in an international environment, including the potential imposition of trade or foreign exchange restrictions, tariff and other tax increases, fluctuations in exchange rates and unstable political situations, any one or more of which could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. ABILITY TO RESPOND TO RAPID CHANGE. The Company's future success will depend in part on its ability to enhance its current products and develop or acquire and market new products which keep pace with technological developments and evolving industry standards as well as respond to changes in customer needs. The market for the Company's products is characterized by rapidly changing technology, evolving industry standards and customer demands, and frequent new product introductions and enhancements. The Company will be required to manage its strategic position effectively in a rapidly changing environment. There can be no assurance that the Company will be successful in developing or acquiring product enhancements or new products to address changing technologies and customer requirements adequately, that it will introduce such products on a timely basis, or that any such products or enhancements will be successful in the marketplace. The Company's delay or failure to develop or acquire technological improvements or to adapt its products to technological change could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. DEPENDENCE UPON KEY PERSONNEL. The Company's success depends in part upon the retention of key senior management and technical personnel, particularly Robert G. Klimasewski, its President and Chief Executive Officer, and Eric W. McInroy, its Executive Vice President and Chief Operating Officer. The loss of the services of any of the Company's key personnel could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. ABILITY TO ATTRACT QUALIFIED PERSONNEL. The Company believes that its future success also depends upon its ability to attract and retain additional highly skilled technical, professional, management and sales and marketing personnel. The market for skilled employees has historically been, and the Company expects that it will continue to be, intensely competitive. The Company's inability to attract and retain qualified employees could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. DEPENDENCE ON NEW PRODUCTS AND TECHNOLOGICAL CHANGE. The Company participates in markets where the timely introduction of new products is critical to the success and market acceptance of such products. The Company's new product development programs are subject to delays due to unforeseen complexities in product design that arise during the development process. When encountered, these complexities may cause delays in product introductions or costly design modifications which could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. PRODUCT RECALLS, POTENTIAL LIABILITY AND INSURANCE. Many of the instruments which the Company designs and manufacturers are used in the petroleum refining and chemical manufacturing industries. The tolerance for error in the design, manufacture or use of these products 5 10 may be small or non-existent. If an instrument designed or manufactured by the Company is found to be defective, whether due to design or manufacturing defects, improper use of the product or other reasons, the instrument may need to be recalled, possibly at the Company's expense. Furthermore, the adverse effect of a product recall on the Company might not be limited to the cost of the recall on the Company. Recalls, especially if accompanied by unfavorable publicity or termination of customer contracts, could result in substantial costs, loss of revenues and diminution of the Company's reputation, each of which could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. In addition, the manufacture and sale of the instruments manufactured by the Company also involves the risk of product liability claims. The Company evaluates its insurance coverage from time to time in view of developments in its business and products currently under development. Product liability insurance is expensive and, in the future, may not be available on acceptable terms, in sufficient amounts, or at all. A successful claim brought against the Company in excess of its insurance coverage or any material claim for which insurance coverage is denied or limited could have a material adverse effect on the Company's business, prospects, results of operations and financial condition. DEPENDENCE ON PROPRIETARY RIGHTS. The Company's success and ability to compete depends in part upon protecting its proprietary rights in its products, its name and its trade names. There can be no assurance that the measures taken by the Company will be adequate to deter misappropriation of its products, its name and its trade names or independent third-party development of its products, or that its intellectual property rights can be successfully enforced or defended if challenged. Given the continuing development of technology, there can be no assurance that certain aspects of the Company's products do not or will not infringe upon the existing or future proprietary rights of others or that, if licenses or rights are required to avoid infringement, such licenses or rights could be obtained or obtained on terms that would not have a material adverse effect on the Company, if at all. ENVIRONMENTAL REGULATION. The Company's operations are subject to federal, state, local and foreign laws and regulations governing, among other things, emissions to air, discharge to waters and the generation, handling, storage, transportation, treatment and disposal of waste and other materials. The Company believes that its business, operations and facilities have been and are being operated in compliance in all material respects with applicable environmental and health and safety laws and regulations, many of which provide for substantial fines and criminal sanctions for violations. However, the operation of manufacturing facilities entails risks in these areas and there can be no assurance that the Company will not incur material costs or liabilities. In addition, potentially significant expenditures could be required in order to comply with evolving environmental and health and safety laws, regulations or requirements that may be adopted or imposed in the future. LIMITATIONS ON TAKEOVERS. Certain provisions of the Company's Articles of Incorporation and Bylaws may have the effect of discouraging a third party from making an acquisition proposal for the Company and may thereby inhibit a change in control of the Company under circumstances that could give the shareholders the opportunity to realize a premium over the then-prevailing market prices. Specifically, mergers and certain other corporate actions with a 10% shareholder of the Company require the approval of 75% of the Common Stock entitled to vote, and the Company's Board of Directors is divided into three classes, with the members 6 11 of each class serving for staggered three-year terms. See "Provisions With Possible Anti-Takeover Effects." INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by the Company with the Commission (Commission File No. 0-3905) pursuant to the Exchange Act are incorporated herein by reference: (1) the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1997; (2) the Company's Current Report on Form 8-K dated April 4, 1997; (3) the Company's Current Report on Form 8-K dated June 19, 1997; (4) the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997; (5) the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997; and (6) all other documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of this offering of the Shares. Any statement contained herein or in a document or information incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY AND ALL OF THE FOREGOING DOCUMENTS AND INFORMATION THAT HAVE BEEN INCORPORATED BY REFERENCE IN THIS PROSPECTUS, OTHER THAN EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS). REQUESTS THEREFOR SHOULD BE DIRECTED TO JOHN A. MISIASZEK, VICE PRESIDENT - FINANCE, TRANSMATION, INC., 10 VANTAGE POINT DRIVE, ROCHESTER, NEW YORK 14624; TELEPHONE (716) 352-7777. SELLING SHAREHOLDER The following table sets forth certain information with respect to the beneficial ownership of Common Stock, as of December 31, 1997 and as adjusted to reflect the sale of all of the Shares 7 12 offered hereby, by the Selling Shareholder. The Selling Shareholder has advised the Company that he has sole voting and investment power with respect to all of the Shares beneficially owned by him.
COMMON STOCK NUMBER OF COMMON STOCK BENEFICIALLY OWNED BEFORE SHARES BEING BENEFICIALLY OWNED AFTER THE OFFERING OFFERED THE OFFERING (1) ------------ ------- ---------------- SELLING NO. OF PERCENT NO. OF PERCENT SHAREHOLDER SHARES OF CLASS SHARES OF CLASS ----------- ------ -------- ------ -------- William J. Berk 762,524 13.3% 762,524 0 0
(1) Assumes that all Shares being offered are sold. The Selling Shareholder was the Company's founder. He served as the Company's President and Chief Executive Officer from 1964 until June 1994, and as a director of the Company from 1964 until June 1996. He is now retired. Pursuant to a Consulting Agreement with the Selling Shareholder dated April 1, 1979 and amended April 1, 1990, the Company has agreed to retain him as a consultant for 20 years commencing March 1, 1995, to pay him $30,000 a year for the first ten years and $20,000 a year for the remainder, and to provide him with certain fringe benefits, including reimbursement for medical expenses up to $10,000 annually and for accounting and legal expenses up to $10,000 annually. In addition, pursuant to a Disability, Supplemental Death Benefit and Retirement Agreement with the Selling Shareholder dated April 1, 1979 and amended April 1, 1990, the Company has agreed to make annual payments to him, commencing March 1, 1995 and continuing for the rest of his life, in the amount of $96,456. Upon the Selling Shareholder's death, his wife will be paid 60% of that amount annually for the rest of her life. The payments due under this agreement are not insured or funded nor are any assets segregated for the benefit of the Selling Shareholder or his wife. In addition, pursuant to a Stock Registration and Repurchase Agreement with the Selling Shareholder dated April 1, 1979 and amended April 1, 1990 and December 12, 1997, during the Selling Shareholder's lifetime and for five years after his death, the Selling Shareholder and his estate have "piggyback" registration rights, at the Company's expense (with certain exceptions), with respect to all of his shares of Common Stock. In addition, within five years after the Selling Shareholder's death, his estate has a one-time demand registration right with respect to all of his shares of Common Stock and, at the request of the Selling Shareholder's estate, the Company must, subject to certain exceptions, redeem from his estate the maximum number of shares permitted by section 303 of the Internal Revenue Code, at the market value of the Common Stock at the time of his death. The Company and the Selling Shareholder have also agreed to indemnify each other against certain liabilities, including certain liabilities under the Securities Act. The Selling Shareholder's rights under this agreement are personal to him and his estate, and are not assignable or transferable to purchasers of the Shares pursuant to this Prospectus. The Selling Shareholder's registration and redemption rights under this agreement will be terminated upon the Selling Shareholder's sale of all of the Shares as contemplated hereby. 8 13 PLAN OF DISTRIBUTION The Shares are being sold by the Selling Shareholder. The Company will receive none of the proceeds from sales of the Shares. Sales may be made by the Selling Shareholder on the Nasdaq at prices and on terms related to the then current market price of the Common Stock, in privately negotiated transactions at such prices as may be agreed upon, or in a combination of such methods of sale. The Shares may be sold by the Selling Shareholder by any one or more of the following methods: (a) a block trade in which the broker or dealer so engaged will attempt to sell the Shares as agent, but may position and resell a portion of a block as principal to facilitate the transaction; (b) purchases by a broker or dealer as principal, and resale by such broker or dealer, for its account, pursuant to this Prospectus; (c) ordinary open market brokerage transactions; (d) transactions in which a broker or dealer solicits purchasers; and (e) privately negotiated transactions. The Selling Shareholder may effect such transactions by selling the Shares to or through brokers or dealers, who may act as agent or principal. In effecting sales, brokers and dealers engaged by the Selling Shareholder or by the purchasers of Shares may arrange for other brokers or dealers to participate. Such brokers or dealers may receive discounts, concessions or commissions from the Selling Shareholder and/or purchasers of Shares for whom such broker or dealer may act as agent or to whom such broker or dealer may sell as principal, or both. Such discounts, concessions or commissions from the Selling Shareholder or from such purchasers may be in excess of those customary in the types of transactions involved. The Selling Shareholder and such brokers and dealers who act in connection with the sale of the Shares may be deemed to be "underwriters" within the meaning of the Securities Act, and any discounts, concessions or commissions received by them and any profit on any resale of the Shares as principal may be deemed to be underwriting discounts and commissions under the Securities Act. In addition, any Shares covered by this Prospectus may be sold by the Selling Shareholder pursuant to Rule 144 under the Securities Act rather pursuant to this Prospectus. The Company will pay all fees and expenses incident to the registration of the Shares offered hereby, other than the following expenses which will be borne by the Selling Shareholder: discounts and commissions payable to brokers or dealers in respect of sales of the Shares, stock transfer taxes and (except to the extent described below) the expenses of the Selling Shareholder's counsel, accountants and other advisors. Pursuant to a Consulting Agreement with the Selling Shareholder, the Company is obligated to reimburse him for 9 14 accounting and legal expenses up to $10,000 annually. See "Selling Shareholder." Accordingly, it is anticipated that the Company will reimburse the Selling Shareholder, in an amount not to exceed $10,000, for accounting and legal expenses incurred by him in connection with his sale of the Shares hereby. It is estimated that the aggregate fees and expenses payable by the Company in connection with the registration and offering of the Shares hereby will be approximately $40,000. The Shares initially will be offered for sale by the Selling Shareholder through Joseph Charles and Associates, Inc. as Placement Agent (the "Placement Agent"), pursuant to a placement agency agreement to arrange for the placement of the Shares. The Placement Agent is not obligated to place any minimum number of Shares. It intends to offer the Shares to selected institutional purchasers at a price of $7.125 per share. Except in the placement of the Shares to others, the Placement Agent is not obligated to and does not intend to purchase any of the Shares offered hereby. Assuming a price to the public of $7.125 per share, the Selling Shareholder has agreed to pay to the Placement Agent 40 1/2 cents for each Share sold in this offering as the selling commission or discount. The Selling Shareholder and the Company have each agreed to indemnify the Placement Agent against certain liabilities, including liabilities under the Securities Act. DESCRIPTION OF CAPITAL STOCK OUTSTANDING AND COMMITTED SHARES. The Company is authorized to issue 15,000,000 shares of Common Stock, par value $.50 per share. As of December 31, 1997, there were outstanding 5,745,376 shares of Common Stock. In addition, an aggregate of approximately 2,388,000 shares of Common Stock are subject to issuance from time to time in the future under the Transmation, Inc. Amended and Restated 1993 Stock Option Plan, the Transmation, Inc. Amended and Restated Directors' Warrant Plan, the Transmation, Inc. Directors' Stock Plan, the Transmation, Inc. Employees' Stock Purchase Plan and certain bonus arrangements with senior management. COMMON STOCK. The holders of Common Stock are entitled to one vote for each share held of record on all matters to be voted on by the shareholders. Shareholders have the right to cumulate votes in the election of directors if certain notice procedures are complied with. The holders of Common Stock are entitled to receive dividends when, as and if declared by the Board of Directors out of funds legally available therefor. In the event of a liquidation, dissolution or winding up of the Company, the holders of Common Stock are entitled to share ratably in all assets remaining available for distribution to them after payment of liabilities. Holders of Common Stock, as such, have no conversion, preemptive or other subscription rights, and there are no redemption provisions applicable to the Common Stock. All of the outstanding shares of Common Stock are fully paid and non-assessable. TRANSFER AGENT. The transfer agent and registrar for the Common Stock is National City Bank, the address of which is Corporate Trust Administration, P.O. Box 94915, Cleveland, Ohio 44101-4915. LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS Under the Ohio General Corporation Law (the "OGCL"), a director's liability to the Company or its shareholders for damages is limited solely to those situations where it is proven by clear and convincing evidence that his act or failure to act was undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company, and those situations involving unlawful loans, asset distributions, dividend payments or share repurchases. As a result, shareholders may be unable to recover monetary damages against directors for actions which constitute gross negligence or which are in violation of their fiduciary duties, although it may be possible to obtain injunctive or other equitable relief with respect to such actions. If equitable remedies are found not to be available to shareholders 10 15 for any particular case, shareholders may not have any effective remedy against the challenged conduct. The Company's Code of Regulations (the "Bylaws") provide for the indemnification of the Company's directors, officers and authorized representatives to the fullest extent permitted by Ohio law and provide that potential indemnitees have the right to be paid by the Company for expenses incurred in defending any proceeding as such expenses are incurred in advance of the final disposition of such proceeding, provided that the indemnitee executes any undertaking required under Ohio law to repay such amounts if a non-appealable judicial decision determines that the indemnitee is not entitled to indemnification. The Bylaws also provide that the Company may purchase insurance on behalf of any potential indemnitee for protection against any liability asserted against such person and incurred by such person in any capacity, or arising out of his status as such, whether or not the Company would have the power to indemnify such person under the Bylaws or under applicable provisions of Ohio law. The Bylaws further provide that the Company may extend indemnification rights to any employee or agent of the Company to such extent as the Board of Directors may determine, up to the full indemnification permitted under the Bylaws and Ohio law. The Company and the Selling Shareholder have agreed to indemnify each other against certain liabilities, including certain liabilities under the Securities Act. See "Selling Shareholder." Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or controlling persons of the Company pursuant to the foregoing provisions or otherwise, the Company has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS The OGCL prohibits certain transactions, including mergers, sales of assets and similar corporate transactions, involving Ohio corporations and holders of 10% or more of their voting shares, unless certain advance approvals are obtained or certain other conditions are met. Furthermore, the Company's Articles of Incorporation require the affirmative vote of the holders of at least 75% of the capital stock of the Company entitled to vote in order to authorize: (i) any merger or consolidation of the Company with any other corporation if such transaction would otherwise by law require a vote of the shareholders; (ii) any combination or majority share acquisition with or by any corporation if such transaction would otherwise by law require a vote of the shareholders; or (iii) any lease, sale, exchange, transfer or other disposition of all or substantially all of the assets of the Company to any other person or entity; if, in any such event, such other corporation, person or entity is the beneficial owner of 10% or more of the outstanding capital stock of the Company entitled to vote thereon. Notwithstanding the foregoing, such restrictions do not apply if the Company's Board of Directors approves a memorandum of understanding with the other corporation, person or entity prior to the time it becomes the owner of 10% or more of the outstanding shares of the Company's capital stock. 11 16 Additionally, the affirmative vote of the holders of at least 75% of the capital stock of the Company entitled to vote is required to amend, alter or repeal any of the foregoing provisions of the Company's Articles of Incorporation. Consequently, the OGCL and the Company's Articles of Incorporation may have the effect of deterring merger proposals, tender offers or other attempts to effect changes in control of the Company that are not negotiated and approved by the Board of Directors or approved by the holders of at least 75% of the Company's capital stock. In addition, the Company's Board of Directors is divided into three classes, with the members of each class serving for staggered three-year terms. This structure makes it more difficult to effect a change in control of the Company through election to the Board of Directors. LEGAL MATTERS The legality of the Shares offered hereby will be passed upon for the Company by Harter, Secrest & Emery LLP, Rochester, New York. EXPERTS The consolidated financial statements of the Company appearing in its Annual Report on Form 10-K for the year ended March 31, 1997 have been audited by Price Waterhouse LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. Any audited financial statements hereafter incorporated by reference in the Registration Statement of which this Prospectus is a part will be so incorporated by reference herein in reliance upon the reports of independent auditors pertaining to such financial statements (to the extent covered by consents filed with the Commission) given upon the authority of such firm as experts in auditing and accounting. 12 17 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth the expenses expected to be incurred by the Registrant in connection with the offering of the Shares registered hereby. All amounts, except the Securities and Exchange Commission registration fee, are estimated. Securities and Exchange Commission Registration Fee............ $ 1,878 Accounting Fees and Expenses................................... 5,000 Legal Fees and Expenses ....................................... 20,000 Reimbursement of Selling Shareholder's Accounting and Legal Fees and Expenses ................................... 10,000 Miscellaneous Expenses ........................................ 3,122 --------- Total .................................... $ 40,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 1701.13 of the OGCL sets forth the conditions and limitations governing the indemnification of officers, directors and other persons. Section 1701.13 provides that a corporation shall have the power to indemnify any person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation in a similar capacity with another corporation or entity, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement incurred in connection therewith if he acted in good faith and in a manner that he reasonably believed to be in the best interests of the corporation and, with respect to a criminal proceeding, had no reasonable cause to believe that his conduct was unlawful. With respect to a suit by or in the right of the corporation, indemnity may be provided to the foregoing persons under Section 1701.13 on a basis similar to that set forth above, except that no indemnity may be provided: (i) in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless and to the extent that the Court of Common Pleas or other court in which such action, suit or proceeding was brought determines that despite the adjudication of liability but in view of all the circumstances of the case such person is entitled to indemnity for such expenses as such court deems proper; or (ii) the action or suit is one in which the only liability asserted against a director is pursuant to Section 1701.95 of the OGCL (which relates to unlawful loans, dividends and distributions of assets). Moreover, Section 1701.13 provides for mandatory indemnification of a director, officer, employee or agent of the corporation to the extent that such person has been successful in defense of any such action, suit or proceeding and provides that a corporation shall pay the expenses of an officer or director in defending an action, suit or proceeding upon receipt II-1 18 of an undertaking to repay such amounts if it is ultimately determined that such person is not entitled to be indemnified. Section 1701.13 establishes provisions for determining whether a given person is entitled to indemnification, and also provides that the indemnification provided by or granted under Section 1701.13 is not exclusive of any rights to indemnity or advancement of expenses to which such person may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise. Article 6 of the Bylaws provides for the indemnification of the Registrant's directors, officers and authorized representatives to the fullest extent permitted by Ohio law and provides that potential indemnitees have the right to be paid by the Registrant for expenses incurred in defending any proceeding as such expenses are incurred in advance of the final disposition of such proceeding, provided the indemnitee executes any undertaking required under Ohio law to repay such amounts if a non-appealable judicial decision determines that the indemnitee is not entitled to indemnification. The Bylaws also provide that the Registrant may purchase insurance on behalf of any potential indemnitee for protection against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the Registrant would have the power to indemnify such person under the Bylaws or under applicable provisions of Ohio law. The Bylaws further provide that the Registrant may extend indemnification rights to any employee or agent of the Registrant to such extent as the Board of Directors may determine, up to the full indemnification permitted under the Bylaws and Ohio law. ITEM 16. EXHIBITS. (a) Exhibits: *1.1 Form of Placement Agreement between William J. Berk and Joseph Charles and Associates, Inc. *1.2 Form of Agreement between the Registrant and Joseph Charles and Associates, Inc. 4.1 Articles of Incorporation of the Registrant, as amended, are incorporated herein by reference to Exhibit 4(a) to the Registrant's Registration Statement on Form S-8 (Registration No. 33-61665) filed on August 8, 1995. Certificate of Amendment thereto is incorporated herein by reference to Exhibit I to the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996. 4.2 Bylaws of the Registrant, as amended, are incorporated herein by reference to Exhibit (3) to the Registrant's Annual Report on Form 10-K for the year ended March 31, 1988. 4.3 Specimen Common Stock certificate is incorporated herein by reference to Exhibit (4) to Amendment No. 1 to the Registrant's Registration Statement on Form S-1 (Registration No. 2-27910). 4.4 Revolving Credit and Term Loan Agreement dated April 4, 1997 among the Registrant, Manufacturers and Traders Trust Company and State Street Bank and Trust Company is incorporated herein by reference to Exhibit 4(c) to the Registrant's Current Report on Form 8-K dated April 4, 1997. II-2 19 *5.1 Opinion of Harter, Secrest & Emery LLP with respect to the validity of the Registrant's Common Stock. *23.1 Consent of Price Waterhouse LLP. *23.2 Consent of Harter, Secrest & Emery LLP (included in Exhibit 5.1). 24.1 Power of Attorney. 99.1 Consulting Agreement dated April 1, 1979 between the Registrant and William J. Berk, Disability, Supplemental Death Benefit and Retirement Agreement dated April 1, 1979 between the Registrant and William J. Berk, and Stock Registration and Repurchase Agreement dated April 1, 1979 between the Registrant and William J. Berk are incorporated herein by reference to Exhibit 10 to the Registrant's Annual Report on Form 10-K for the year ended March 31, 1984. 99.2 Amendment to Consulting Agreement dated April 1, 1990 between the Registrant and William J. Berk, Amendment to Disability, Supplemental Death Benefit and Retirement Agreement dated April 1, 1990 between the Registrant and William J. Berk, and Amendment to Stock Registration and Repurchase Agreement dated April 1, 1990 between the Registrant and William J. Berk are incorporated herein by reference to Exhibit 10(b) to the Registrant's Annual Report on Form 10-K for the year ended March 31, 1991. 99.3 Second Amendment to Stock Registration and Repurchase Agreement dated December 12, 1997 between the Registrant and William J. Berk. - ----------------- * Filed with this Amendment. ITEM 17. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the Prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; II-3 20 (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. (i) The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. II-4 21 (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-5 22 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rochester, State of New York, on February 5, 1998. TRANSMATION, INC. By: /s/ John A. Misiaszek -------------------------------------- John A. Misiaszek Vice President - Finance Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to Registration Statement has been signed by the following persons in the capacities and on the dates indicated. President, Chief Executive * Officer and Director (Prin- February 5, 1998 - ------------------------- cipal Executive Officer) Robert G. Klimasewski Vice President - Finance /s/ John A. Misiaszek (Principal Financial Officer February 5, 1998 - ------------------------- and Principal Accounting John A. Misiaszek Officer) * Director February 5, 1998 - ------------------------- Angelo J. Chiarella * Director February 5, 1998 - ------------------------- E. Lee Garelick * Director February 5, 1998 - ------------------------- Nancy D. Hessler * Director February 5, 1998 - ------------------------- Cornelius J. Murphy * Director February 5, 1998 - ------------------------- John W. Oberlies * Director February 5, 1998 - ------------------------- Harvey J. Palmer * Director February 5, 1998 - ------------------------- Arthur M. Richardson * Director February 5, 1998 - ------------------------- Philip P. Schulp *By: /s/ John A. Misiaszek ------------------------- John A. Misiaszek Attorney-in-Fact
II-6 23 INDEX TO EXHIBITS *1.1 Form of Placement Agreement between William J. Berk and Joseph Charles and Associates, Inc. *1.2 Form of Agreement between the Registrant and Joseph Charles and Associates, Inc. 4.1 Articles of Incorporation of the Registrant, as amended, are incorporated herein by reference to Exhibit 4(a) to the Registrant's Registration Statement on Form S-8 (Registration No. 33-61665) filed on August 8, 1995. Certificate of Amendment thereto is incorporated herein by reference to Exhibit I to the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996. 4.2 Bylaws of the Registrant, as amended, are incorporated herein by reference to Exhibit (3) to the Registrant's Annual Report on Form 10-K for the year ended March 31, 1988. 4.3 Specimen Common Stock certificate is incorporated herein by reference to Exhibit (4) to Amendment No. 1 to the Registrant's Registration Statement on Form S-1 (Registration No. 2-27910). 4.4 Revolving Credit and Term Loan Agreement dated April 4, 1997 among the Registrant, Manufacturers and Traders Trust Company and State Street Bank and Trust Company is incorporated herein by reference to Exhibit 4(c) to the Registrant's Current Report on Form 8-K dated April 4, 1997. *5.1 Opinion of Harter, Secrest & Emery LLP with respect to the validity of the Registrant's Common Stock. *23.1 Consent of Price Waterhouse LLP. *23.2 Consent of Harter, Secrest & Emery LLP (included in Exhibit 5.1). 24.1 Power of Attorney. 99.1 Consulting Agreement dated April 1, 1979 between the Registrant and William J. Berk, Disability, Supplemental Death Benefit and Retirement Agreement dated April 1, 1979 between the Registrant and William J. Berk, and Stock Registration and Repurchase Agreement dated April 1, 1979 between the Registrant and William J. Berk are incorporated herein by reference to Exhibit 10 to the Registrant's Annual Report on Form 10-K for the year ended March 31, 1984. 99.2 Amendment to Consulting Agreement dated April 1, 1990 between the Registrant and William J. Berk, Amendment to Disability, Supplemental Death Benefit and Retirement Agreement dated April 1, 1990 between the Registrant and William J. Berk, and Amendment to Stock Registration and Repurchase Agreement dated April 1, 1990 between the Registrant and William J. Berk are incorporated herein by reference to Exhibit 10(b) to the Registrant's Annual Report on Form 10-K for the year ended March 31, 1991. II-7 24 99.3 Second Amendment to Stock Registration and Repurchase Agreement dated December 12, 1997 between the Registrant and William J. Berk. - -------------------- * Filed with this Amendment. II-8 EX-1.1 2 EXHIBIT 1.1 1 Exhibit 1.1 PLACEMENT AGREEMENT ------------------- January __, 1998 Joseph Charles and Associates, Inc. 2500 North Military Trail Suite 300 Boca Raton, FL 33431 Dear Sir: William J. Berk (the "Selling Shareholder") residing at 9258 Vista Del Lago (21A), Boca Raton, Florida 33428, proposes to sell an aggregate of 762,524 shares (the "Shares") of Common Stock (the "Common Stock") ($0.50 par value) of Transmation, Inc. (with its subsidiaries, the "Company"), an Ohio corporation with offices at 10 Vantage Point Drive, Rochester, New York 14624. The Selling Shareholder confirms as follows his respective agreements with you. 1. Registration Statement and Prospectus: The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") in accordance with the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively called the "Act") a registration statement on Form S-3 (File No. 333- 42345), relating to the Shares. As used in this Agreement, the term "Registration Statement" means such registration statement including exhibits and financial statements and schedules and the documents specified in the Prospectus under the caption "Incorporation of Certain Documents By Reference", as amended, when it becomes effective, and the term "Prospectus" means the prospectus filed on behalf by the Company with the Commission pursuant to Rule 424(b) under the Act. 2. Agreements to Sell: Subject to all the terms and conditions of this agreement, you agree to purchase the Shares from the Selling Shareholder, or use your best efforts to place the Shares on behalf of the Selling Shareholder, from time to time within ten days from the date hereof, at a purchase price of $_________ net to the Selling Shareholder per share. A confirmation slip or slips shall be issued by you evidencing each transaction. 3. Delivery and Payment: Delivery of and payment for the Shares shall be made on the settlement date as specified in confirmation slips issued by you or Bear Stearns & Company, or your clearing broker in the regular way. The settlement date so specified (hereinafter the "Closing" or the "Closing Date") shall be no later than three (3) days following the transaction date specified on any confirmation slip issued by you for the sale of any of the Shares. Delivery of certificates for the Shares in negotiable form shall be made into an account established in my name with Bear Stearns & Company (courtesy of you) at least two business days prior to the entry of any order for the purchase by you or the placement by you of the Shares. Payment of the purchase price therefor by wire transfer of immediately available funds to an account designated by Selling Shareholder shall be made on the Closing Date or such later date as the certificates are delivered to you in deliverable form. 2 4. Representations and Warranties of the Selling Shareholder: The Selling Shareholder represents and warrants to you that: (a) The Selling Shareholder now is, and at the time of delivery will be, the lawful owner of the number of Shares to be sold by such Selling Shareholder and at the time of delivery thereof will have valid and marketable title to such Shares, free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title and now and at the time of delivery of such Shares will have, full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement. (b) When the Registration Statement becomes effective and at all times subsequent thereto through the Closing Date, such parts of the Registration Statement and Prospectus, and any supplements or amendments thereto and the documents incorporated by reference therein, as they relate to the Selling Shareholder and are based on information furnished in writing to the Company by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, any preliminary prospectus or any such supplement or amendment will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, in each case in light of the circumstances under which they were made. (c) Such Selling Shareholder will cooperate, to the extent required, in connection with the registration or qualification of the Shares under the securities or Blue Sky laws of such jurisdictions as may be designated by you. (d) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of the Common Stock. (e) The Selling Shareholder has his own counselors and advisors upon whom he has relied; he has not relied on you in determining to sell the Shares. The Selling Shareholder is aware of the fact that you may recommend to your clients or others that they purchase the Shares, and that such investment may prove to be profitable to your clientele. 5. You hereby agree to indemnify and hold harmless the Selling Shareholder to the same extent as the indemnity from the Company to you and the Selling Shareholder contained in the first and second paragraphs of Section 4 of the letter to you from the Company dated the date of this letter, but only with respect to information relating to you furnished in writing by you expressly for use in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any preliminary prospectus. In case any action or proceeding shall be brought against the Selling Shareholder in respect of which indemnity may be sought against you, you shall have the rights and duties given to the Company in such letter. The Selling Shareholder hereby agrees to indemnify and hold harmless the Company, its directors and officers (who shall be deemed third-party beneficiaries hereof), you, and each person, if any, who controls the Company or you within the meaning of Section 15 of the Securities Act or Section 20 of the 1934 Act, to the same extent as the indemnity from the Company to you and the Selling Shareholder contained in the first paragraph of paragraph 4 of 2 3 a letter to you from the Company dated the date of this letter, but only with respect to information relating to such Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any preliminary prospectus. In case any action or proceeding shall be brought against the Company, its directors or officers, you, or any such controlling person, in respect of which indemnity may be sought against the Selling Shareholder, the Selling Shareholder shall have the rights and duties given to the Company, and the Company or its directors or officers or you or such controlling person shall have the rights and duties given to you, by the second paragraph of Section 4 of the foregoing letter dated the date of this Agreement. The indemnity agreements contained in this Section 5 and the representations and warranties of the Selling Shareholder contained in this Agreement shall remain operative and in full force and effect regardless of (a) any investigation made by or on behalf of you, by or on behalf of any person controlling you, or by or on behalf of the Company, its directors and officers or any person controlling the Company, (b) acceptance of any of the Shares and payment therefor or (c) any termination of this Agreement. 6. Conditions of Your Obligations. Your obligations hereunder are subject to the following conditions: (a) The Registration Statement shall have become effective. (b) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending or contemplated by the Commission. (c) The representations and warranties of the Selling Shareholder in this Agreement shall be true and correct, in all material respects, on and as of the Closing Date; and the Selling Shareholder shall have complied with all agreements and satisfied all conditions on his part to be performed or satisfied at or prior to the Closing Date. (d) Subsequent to the effective date of the Registration Statement through the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or financial affairs of the Company which would materially and adversely affect the market for the Shares. (e) Berk shall furnish you such further certificates and documents as you shall have reasonably requested. 7. Representations of Joseph Charles & Associates, Inc.: You represent and warrant to the Selling Shareholder that: (a) This letter is duly authorized by you and is a legal, valid and binding agreement enforceable against you in accordance with its terms, except as the enforceability of the indemnification provisions hereof may be limited under applicable Federal or state securities laws. 3 4 (b) You are a corporation legally incorporated and validly existing in good standing under the laws of the State in which you are incorporated. You have full corporate power and authority to deliver this letter. (c) You are not in violation of your charter or by-laws; the execution and delivery of this Agreement, the performance of the terms herein and the consummation of the transactions herein contemplated will not conflict with or constitute a breach of, or a default under your charter or by-laws, or, to your knowledge, any agreement, indenture, mortgage, deed of trust or other agreement or instrument to which you are a party or by which you are bound, or, to your knowledge, any law, administrative regulation or order of any court or governmental agency or authority applicable to you. 8. Effective Date of Agreement: This Agreement shall become effective when signed by all the parties hereto. 9. Miscellaneous: Notice given pursuant to any of the provisions of this Agreement shall be in writing and shall be mailed or delivered (a) to the Selling Shareholder c/o Michael V. Mitrione, Esq., Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 777 South Flagler Drive, Suite 500 East, West Palm Beach, Florida 33401-6194, (b) to the Company at its offices or (c) to you at your address. This Agreement has been made solely for the benefit of you, the Selling Shareholder and the controlling persons, directors and officers referred to in Section 5 hereof, and to the extent described, the Company and its directors and officers and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. The term "successors and assigns" as used in this Agreement shall not include a purchaser of Shares from you, or a purchaser from the Selling Shareholder in the event you act as agent for the Selling Shareholder. The section headings in the Agreement have been inserted as a matter of convenience of reference and are not part of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be executed in any number of counterparts which, taken together, shall constitute but one and the same instrument. - ----------------------------------------- William J. Berk, Selling Shareholder JOSEPH CHARLES AND ASSOCIATES, INC. By: -------------------------------------- 4 EX-1.2 3 EXHIBIT 1.2 1 Exhibit 1.2 TRANSMATION, INC. 10 Vantage Point Drive Rochester, New York 14624 January ___, 1998 Joseph Charles and Associates, Inc. 2500 North Military Trail Suite 300 Boca Raton, FL 33431 Madames and Gentlemen: William J. Berk (the "Selling Shareholder") residing at 9258 Vista Del Lago (21A), Boca Raton, Florida 33428, proposes to sell an aggregate of 762,524 shares (the "Shares") of Common Stock (the "Common Stock") ($0.50 par value) of Transmation, Inc. (with its subsidiaries, the "Company"). The Company has certain obligations to the Selling Shareholder pursuant to a certain agreement, and in order to facilitate the sale of the Shares by the Selling Shareholder, it has written this letter to you at his request. 1. The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") in accordance with the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively called the "Act") a registration statement on Form S-3 (File No. 333-42345), relating to the Shares. As used in this Agreement, the term "Registration Statement" means such registration statement including exhibits and financial statements and schedules and the documents specified in the Prospectus under the caption "Incorporation of Certain Documents By Reference", as amended, when it becomes effective, and the term "Prospectus" means the prospectus filed on behalf by the Company with the Commission pursuant to Rule 424(b) under the Act. 2. (a) The Company will notify you promptly, and (if requested by you) will confirm such advice in writing, (1) when the Registration Statement has become effective and when any post effective amendment thereto becomes effective, (2) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and (4) of the happening of any event during the period mentioned in paragraph (d) below which in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. (b) The Company will furnish to you, without charge, two signed copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules and all exhibits (including those incorporated therein by reference). 2 (c) The Company will give you advance notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, and will not file any such amendment or supplement to which you shall in a timely manner reasonably object in writing. (d) On the effective date of the Registration Statement and thereafter from time to time, the Company will deliver to you, without charge, such number of copies of the Prospectus or any amendment or supplement thereto as may be reasonably necessary to effectuate the sale or placement of the Shares. The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or your counsel should be set forth in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to you, without charge, such number of copies thereof as you or the Selling Shareholder may reasonably request. (e) Prior to any public offering of the Shares by you, the Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject. The Company will pay all fees and expenses (including counsel fees and expenses as provided by Section 2(g)) relating to qualification of the Shares under such securities or Blue Sky laws. (f) The Company will make generally available to its security holders an earnings statement which satisfies the provisions of Section 11(a) of the Act. (g) The Company will pay all expenses in connection with (1) the Company's preparation, duplication and filing of the Registration Statement and the Prospectus, (2) your counsel's review of the preliminary and final forms of Blue Sky memoranda and other counsel fees related to Blue Sky qualification in an amount not to exceed $1,000, (3) the issuance and delivery of certificates for the Shares, (other than transfer taxes, provided that the Selling Shareholder will pay any transfer taxes applicable to the sale of the Shares to you), (4) furnishing such copies of the Registration Statement, the Prospectus, all amendments and supplements thereto, as you may reasonably request for use in connection with the offering and sale of the Shares by you or by dealers to whom Shares may be sold, and (5) any fees required to be paid by you to the National Association of Securities Dealers, Inc. (h) You understand and acknowledge that the Company has no obligation to maintain the effectiveness of the Registration Statement beyond the period during which the Prospectus is required by law to be delivered. 2 3 3. The Company represents and warrants to you and to the Selling Shareholder (who shall be deemed a third party beneficiary of this Agreement) that: (a) The Commission has not issued any order preventing or suspending the use of any preliminary prospectus and has not, to the knowledge of the Company, instituted any proceeding with respect to such an order. Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the Act, and when the Registration Statement becomes effective and at all times subsequent thereto up to the settlement date or dates of the sale of the Shares, the Registration Statement and the Prospectus, and any supplements or amendments thereto, will fully comply with the provisions of the Act, and the Registration Statement and the Prospectus at all such times will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that this representation and warranty does not apply to statements or omissions in the Registration Statement or the Prospectus or any preliminary prospectus made in reliance upon information furnished to the Company in writing by you or by the Selling Shareholder. (b) This letter, to the extent that it contains obligations to you or the Selling Shareholder, is duly authorized by the Company and is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability of the indemnification provisions hereof may be limited under applicable Federal or state securities laws. (c) The Company is a corporation legally incorporated and validly existing in good standing under the laws of the State of Ohio. The Company has full corporate power and authority to deliver this letter. (d) The Company is not in violation of its charter or by-laws in any material respect; the execution and delivery of this Agreement, the registration of the Shares and the performance of the terms herein and the consummation of the transactions herein contemplated will not conflict with or constitute a breach of, or a default under the charter or by-laws of the Company, or, to the Company's knowledge, any agreement, indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which it is bound, or, to the Company's knowledge, any law, administrative regulation or order of any court or governmental agency or authority applicable to the Company. (e) The accountants who have certified the financial statements incorporated by reference in the Registration Statement and the Prospectus are independent accountants as required by the Act. The consolidated financial statements (which term as used in this Agreement includes all related notes and schedules) of the Company incorporated by reference in the Registration Statement fairly present in all material respects the financial position and results of operations of the Company at the respective dates and for the respective periods to which they apply. Such financial statements have in all material respects been prepared in accordance with generally accepted principles of accounting consistently applied throughout the periods involved. 3 4 (f) All outstanding shares of Common Stock have been duly and validly authorized and issued, are fully paid and non-assessable and free from preemptive rights. The Common Stock conforms to the description thereof contained in the Prospectus. (g) The Company has not taken and will not take, directly or indirectly, any action designed to, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of the Common Stock. 4. The Company agrees to indemnify and hold harmless you and the Selling Shareholder, and each person, if any, who controls you within the meaning of either Section 15 of the Act or Section 20 of the Securities Exchange Act of 1934, as amended, from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses arise out of or are based upon any such untrue statement or omission or allegation thereof based upon information furnished in writing to the Company expressly for use therein by you or by the Selling Shareholder. If any action or proceeding (including any governmental investigation) shall be brought or asserted against you or the Selling Shareholder or any person controlling you in respect of which indemnity may be sought from the Company, you or the Selling Shareholder or controlling person shall promptly notify the Company in writing, and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to you or such Selling Shareholder, as the case may be, and the payment of all reasonable expenses. You or the Selling Shareholder or controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at your expense or at the expense of the Selling Shareholder or controlling person unless (a) the Company has agreed to pay such fees and expenses or (b) the Company shall have failed to assume the defense of such action or proceeding and to employ counsel reasonably satisfactory to you or the Selling Shareholder in any such action or proceeding or (c) the named parties to any such action or proceeding (including any impleaded parties) include both you or the Selling Shareholder or controlling person and the Company, and you or the Selling Shareholder or controlling person shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case, if you or the Selling Shareholder or controlling person notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of you or the Selling Shareholder or such controlling person it being understood, however, that the Company shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for you and your controlling persons or more than one firm of attorneys at any time for the Selling Shareholder which firm shall be designated in writing by you or by the Selling Shareholder, as the case may be). The Company shall not be liable for any settlement of any such action or 4 5 proceeding effected without its written consent, but if settled with its written consent, or if there be a final judgment for the plaintiff in any such action or proceeding, the Company agrees to indemnify and hold harmless you, the Selling Shareholder and any such controlling person from and against any loss or liability by reason of such settlement or judgment. You agree to indemnify and hold harmless the Company, and its directors and officers, the Selling Shareholder and each person, if any, who controls the Company within the meaning of either Section 15 of the Act or Section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), to the same extent as the indemnity from the Company to you and the Selling Shareholder contained in the first paragraph of this Section 4, but only with respect to information relating to you furnished in writing by you expressly for use in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any preliminary prospectus. In case any action or proceeding shall be brought against the Company or its directors or officers, the Selling Shareholder or any such controlling person, in respect of which indemnity may be sought against you, you shall have the rights and duties given to the Company, and the Company or its directors or officers or such Selling Shareholder or controlling person shall have the rights and duties given to you, by the preceding paragraph. The indemnity agreements contained in this Section 4 and the representations and warranties of the Company and the Selling Shareholder contained in this Agreement or in the Placement Agreement between you and the Selling Shareholder shall remain operative and in full force and effect regardless of (a) any investigation made by or on behalf of you, by or on behalf of any person controlling you, or by or on behalf of the Company, its directors and officers or the Selling Shareholder or any person controlling the Company or the Selling Shareholder, (b) acceptance of any of the Shares and payment therefor or (c) any termination of this Agreement. 5. (a) Attached hereto is a letter, dated the date of this letter from Messrs. Harter, Secrest & Emery to the effect that except as to financial statements and schedules included therein, as to which such counsel need not refer, such counsel (1) believes that the Registration Statement and the Prospectus and any supplements or amendments thereto comply as to form in all material respects with the Act, and (2) has no reason to believe that the Registration Statement or the Prospectus at the time the Registration Statement became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (as amended or supplemented, if applicable) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (b) The Company will furnish you such further certificates and documents as you shall have reasonably requested. 6. Representations of Joseph Charles & Associates, Inc.: You represent and warrant to the Company that: (a) This letter is duly authorized by you and is a legal, valid and binding agreement enforceable against you in accordance with its terms, except as the enforceability of the indemnification provisions hereof may be limited under applicable Federal or state securities laws. 5 6 (b) You are a corporation legally incorporated and validly existing in good standing under the laws of the State in which you are incorporated. You have full corporate power and authority to deliver this letter. (c) You are not in violation of your charter or by-laws; the execution and delivery of this Agreement, the performance of the terms herein and the consummation of the transactions herein contemplated will not conflict with or constitute a breach of, or a default under your charter or by-laws, or, to your knowledge, any agreement, indenture, mortgage, deed of trust or other agreement or instrument to which you are a party or by which you are bound, or, to your knowledge, any law, administrative regulation or order of any court or governmental agency or authority applicable to you. 7. Miscellaneous: Notice given pursuant to any of the provisions of this Agreement shall be in writing and shall be mailed or delivered (a) to the Company at the office of the Company, to the Selling Shareholder at his residence, or to you at your address. Any notice hereunder may be made by telex or telephone, but if so made shall be subsequently confirmed in writing. This letter has been sent solely for the benefit of you, the Company and to the extent described for the benefit of the Selling Shareholder and of the controlling persons, directors and officers referred to in Section 4 hereof, and their respective heirs, legal representatives, successors and assigns, and no other person shall acquire or have any right under or by virtue of this letter. The term "successors and assigns" as used in this letter shall not include a purchaser of Shares from you, or from the Selling Shareholder in the event you act as agent for the Selling Shareholder. The terms of this letter shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, TRANSMATION, INC. By: ----------------------------- ACCEPTED: JOSEPH CHARLES & ASSOCIATES, INC. By: ---------------------------- 6 EX-5.1 4 EXHIBIT 5.1 1 Exhibit 5.1 [letterhead of Harter, Secrest & Emery LLP] February 5, 1998 Transmation, Inc. 10 Vantage Point Drive Rochester, New York 14624 Re: Transmation, Inc. Registration Statement on Form S-3 Ladies and Gentlemen: You have requested our opinion in connection with your Registration Statement on Form S-3, as amended (Registration No. 333-42345), filed under the Securities Act of 1933, as amended (the "Registration Statement"), with the Securities and Exchange Commission in respect of the proposed sale by a certain selling shareholder of Transmation, Inc., an Ohio corporation (the "Corporation") so identified in the Registration Statement (the "Selling Shareholder") of 762,524 authorized and issued shares of the Common Stock, par value $.50 per share, of the Corporation (the "Common Stock"), subject to effectiveness of the Registration Statement. We have examined the following corporate records and proceedings of the Corporation in connection with the preparation of this opinion: its Articles of Incorporation, as amended to date; its Code of Regulations, as in force and effect on this date; its minute books, containing minutes and records of other proceedings of its shareholders and its Board of Directors to the date hereof; the Registration Statement and related Prospectus which constitutes a part thereof; applicable provisions of the laws of the State of Ohio; and such other documents and matters as we have deemed necessary in the circumstances. In rendering this opinion, we have made such examination of laws as we have deemed relevant for the purposes hereof. As to various questions of fact material to this opinion, we have relied upon representations and/or certificates of officers of the Corporation, certificates and documents issued by public officials and authorities, and information received from searchers of public records. Based upon and in reliance on the foregoing, we are of the opinion that: 1. The Corporation has been duly incorporated and is validly existing under the laws of the State of Ohio. 2 Transmation, Inc. February 5, 1998 Page 2 2. The shares of Common Stock to be sold by the Selling Shareholder upon the effectiveness of the Registration Statement will, when sold and paid for as described in the Registration Statement, be validly authorized and legally issued and outstanding, fully paid and non-assessable. We hereby consent to be named in the Registration Statement and to the use of our name under the caption "Legal Matters" set forth in the related Prospectus which constitutes a part of the Registration Statement, as attorneys who will pass upon the legality of the shares of Common Stock offered thereby, and we hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours, /s/ Harter, Secrest & Emery LLP EX-23.1 5 EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our report dated May 14, 1997 with respect to the consolidated financial statements of Transmation, Inc. appearing on page 18 of the Annual Report on Form 10-K for the year ended March 31, 1997. We also consent to the reference to us under the headings "Experts" in such Prospectus. /s/ PRICE WATERHOUSE LLP PRICE WATERHOUSE LLP Rochester, New York February 5, 1998 -----END PRIVACY-ENHANCED MESSAGE-----