EXHIBIT 1.01
SEC-REGISTERED
▇▇▇▇▇▇ AUTOMATION, INC.
DEBT SECURITIES
PREFERRED -- COMMON -- STOCK
UNDERWRITING AGREEMENT
1. Introductory. ▇▇▇▇▇▇ Automation, Inc., a Delaware corporation
("COMPANY"), proposes to issue and sell from time to certain of its debt
securities, preferred stock and common stock, par value $.01 per share ("COMMON
STOCK") registered under the registration statement referred to in Section 2(a)
("REGISTERED SECURITIES"). The Registered Securities constituting debt
securities will be issued under an indenture, dated as of ,
("INDENTURE"), between the Company and , as Trustee, in one or
more series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms. The Registered Securities
constituting preferred stock may be issued in one or more series, which series
may vary as to dividend rates, redemption provisions, selling prices and other
terms. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "REPRESENTATIVES"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333- ), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("COMMISSION") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities (if they are debt
securities or preferred stock) and the terms of the offering of the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("RULE 424(B)") under the Securities Act
of 1933 ("ACT"), including all material incorporated by reference
therein, is hereinafter referred to as the "PROSPECTUS". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
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Prospectus will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, and neither of
such documents will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that
the foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the Company
by any Underwriter through the Representatives, if any, specifically
for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued
and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) If the Offered Securities are debt securities: the
Indenture has been duly authorized and has been duly qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized; and when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date (as defined below)
or pursuant to Delayed Delivery Contracts (as hereinafter defined), the
Indenture will have been duly executed and delivered, such Offered
Securities will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in the
Prospectus and the Indenture and such Offered Securities will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(f) If the Offered Securities are preferred stock: the Offered
Securities have been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the Terms Agreement
on the Closing Date, such Offered Securities will have been validly
issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders
of the Company have no preemptive rights with respect to the Offered
Securities.
(g) If the Offered Securities are Common Stock: the Offered
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital
stock of the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with the Terms Agreement on the
Closing Date, such Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to its Common Stock.
(h) If the Offered Securities are convertible: when the
Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date, such Offered Securities will be
convertible into Common Stock of the Company in accordance with their
terms (if the Offered Securities are
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preferred stock) or the Indenture (if the Offered Securities are debt
securities); the shares of Common Stock initially issuable upon
conversion of such Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the stockholders
of the Company have no preemptive rights with respect to the Common
Stock.
(i) If the Offered Securities are Common Stock or are
convertible into Common Stock: except as disclosed in the Prospectus,
there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee
or other like payment.
(j) If the Offered Securities are Common Stock or are
convertible into Common Stock: there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(k) If the Offered Securities constitute Common Stock or are
convertible into Common Stock, the outstanding shares of Common Stock
are listed on the Nasdaq Stock Market ("NASDAQ") and the Offered
Securities (if they are Common Stock) or the Common Stock into which
the Offered Securities are convertible (if they are convertible) has
been approved for listing on Nasdaq, subject to notice of issuance. If
the Offered Securities are debt securities or preferred stock, they
have been approved for listing on the stock exchange indicated in the
Terms Agreement, subject to notice of issuance.
(l) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in connection
with the issuance and sale of the Offered Securities by the Company,
except such as have been obtained and made under the Act and, if the
Offered Securities are debt securities, the Trust Indenture Act and
such as may be required under state securities laws.
(m) The execution, delivery and performance of the Indenture
(if the Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered Securities and, if
the Offered Securities are debt securities or preferred stock,
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or by-laws of
the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement).
(n) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
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(o) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(p) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole ("MATERIAL ADVERSE EFFECT").
(q) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(r) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(s) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(t) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture (if the Offered Securities
are debt securities), the Terms Agreement (including the provisions of
this Agreement) or any Delayed Delivery Contracts, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(u) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the
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Prospectus, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States
applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to be
stated therein; and if pro forma financial statements are included in
the Registration Statement and Prospectus: the assumptions used in
preparing the pro forma financial statements included in the
Registration Statement and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(v) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(w) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and files reports with the Commission on the Electronic Data
Gathering, Analysis, and Retrieval (▇▇▇▇▇) system.
(x) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(y) Except where the failure to file would not have a Material
Adverse Effect, the Company and its subsidiaries have filed all
Federal, State, local and foreign income tax returns which have been
required to be filed and have paid all taxes indicated by said returns
and all assessments received by them or any of them to the extent that
such taxes have become due and are not being contested in good faith.
All tax liabilities have been adequately provided for in the financial
statements of the Company.
(z) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(aa) The Company and its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar industries.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter the purchase price to be paid by
the Underwriters and (if the Offered Securities are debt securities or preferred
stock) the terms of the Offered Securities not already
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specified (in the Indenture, in the case of Offered Securities that are debt
securities), including, but not limited to, interest rate (if debt securities),
dividend rate (if preferred stock), maturity (if debt securities), any
redemption provisions and any sinking fund requirements and whether any of the
Offered Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts (as defined below). The Terms Agreement will also specify the
time and date of delivery and payment (such time and date, or such other time
not later than seven full business days thereafter as the Underwriter first
named in the Terms Agreement (the "LEAD UNDERWRITER") and the Company agree as
the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "CLOSING DATE"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Offered Securities. For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the Closing Date (if
later than the otherwise applicable settlement date) shall be the date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering, other than Contract Securities for which payment of
funds and delivery of securities shall be as hereinafter provided. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("DELAYED
DELIVERY CONTRACTS") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("CONTRACT SECURITIES"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
If the Offered Securities are preferred stock or Common Stock, the
certificates for the Offered Securities delivered to the Underwriters on the
Closing Date will be in definitive form, and if the Offered Securities are debt
securities, the Offered Securities delivered to the Underwriters on the Closing
Date will be in definitive fully registered form, in each case in such
denominations and registered in such names as the Lead Underwriter requests.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "GLOBAL SECURITIES") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company at a bank acceptable to the Lead Underwriter, in each case drawn to
the order of
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[__________] at the place of payment specified in the Terms Agreement on the
Closing Date, against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5)) not
later than the second business day following the execution and delivery
of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of such Terms Agreement and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the provisions
of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and (if the Offered Securities are debt
securities or preferred stock) the determination of their eligibility
for investment under the laws of such jurisdictions as the Lead
Underwriter designates and will continue such qualifications in effect
so long as required for the distribution.
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(g) The Company will pay all expenses incident to the
performance of its obligations under the Terms Agreement (including the
provisions of this Agreement), for any filing fees or other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Registered Securities for sale and (if the Offered
Securities are debt securities or preferred stock) any determination of
their eligibility for investment under the laws of such jurisdictions
as the Lead Underwriter may designate and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies
for the rating of the Offered Securities (if they are debt securities
or preferred stock), for any applicable filing fee incident to, the
review by the National Association of Securities Dealers, Inc. of the
Registered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or
supplements to the Prospectus to the Underwriters.
(h) If the Offered Securities are debt securities or preferred
stock, the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue (if the Offered Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if the Offered
Securities are preferred stock), or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the
prior written consent of the Lead Underwriter for a period beginning at
the time of execution of the Terms Agreement and ending the number of
days after the Closing Date specified under "Blackout" in the Terms
Agreement.
(i) If the Offered Securities are Common Stock or are
convertible into Common Stock, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Common Stock or
securities convertible into or exchangeable or exercisable for any
shares of its Common Stock, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Lead Underwriter for a period beginning at the
time of execution of the Terms Agreement and ending the number of days
after the Closing Date specified under "Blackout" in the Terms
Agreement except issuances of Common Stock pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise
of warrants or options, in each case outstanding on the date of the
Terms Agreement, grants of employee stock options pursuant to the terms
of a plan in effect on the date of the Terms Agreement or issuances of
Common Stock pursuant to the exercise of such options.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of PricewaterhouseCoopers LLP confirming that they
are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating
to the effect that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
8
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 100, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, the unaudited
consolidated net sales, net operating income, net
income and net income per share amounts or other
amounts constituting such "capsule" information and
described in such letter do not agree with the
corresponding amounts set forth in the unaudited
consolidated financial statements or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated net sales, net operating
income in the total or (if the Offered Securities are
Common Stock or are convertible into Common Stock)
per share amounts of consolidated income before
extraordinary items or net income or (if the Offered
Securities are debt securities) in the ratio of
earnings to fixed charges or (if the Offered
Securities are preferred stock) in the ratio of
earnings to fixed charges and preferred stock
dividends combined;
9
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement that the Company has
been placed on negative outlook; (iii) any change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Underwriters including any Representatives,
be likely to prejudice materially the success of the proposed issue,
sale or disposition of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market; (iv) any
material suspension or material limitation of trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market,
or any setting of minimum prices for trading on such exchange; (v) or
any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (vi) any banking moratorium
declared by U.S. Federal or New York authorities; (vii) any major
disruption of settlements of securities or clearance services in the
United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including any Representatives, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
10
(d) The Representatives shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Israels LLP, counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification;
(ii) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(iii) If the Offered Securities are debt securities:
the Indenture has been duly authorized, executed and delivered
by the Company and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly
authorized; the Offered Securities other than any Contract
Securities have been duly executed, authenticated, issued and
delivered; the Indenture and the Offered Securities other than
any Contract Securities constitute, and any Contract
Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Offered Securities other than any Contract Securities conform,
and any Contract Securities, when so issued and delivered and
sold will conform, to the description thereof contained in the
Prospectus;
(iv) If the Offered Securities are preferred stock:
the Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been
validly issued and are fully paid and nonassessable; any
Contract Securities, when issued, delivered and sold pursuant
to Delayed Delivery Contracts, will be validly issued, fully
paid and non-assessable; and the Offered Securities other than
any Contract Securities conform, and any Contract Securities,
when so issued, delivered and sold, will conform, to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(v) If the Offered Securities are Common Stock: the
Offered Securities and all other outstanding shares of the
Common Stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(vi) If the Offered Securities are convertible: the
Offered Securities other than any Contract Securities are, and
any Contract Securities, when (if the Offered Securities are
debt securities) executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts or (if the Offered Securities are
preferred stock) when issued, delivered and sold pursuant to
Delayed Delivery Contracts,
11
will be convertible into Common Stock of the Company in
accordance with (if they are debt securities) the Indenture or
(if they are preferred stock) their terms; the shares of
Common Stock initially issuable upon conversion of the Offered
Securities have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock;
(vii) If the Offered Securities are Common Stock or
are convertible into Common Stock: there are no contracts,
agreements or understandings known to such counsel between the
Company and any person granting such person the right to
require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act;
(viii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940.
(ix) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement) in connection with the issuance or sale of
the Offered Securities by the Company, except such as have
been obtained and made under the Act and, if the Offered
Securities are debt securities, the Trust Indenture Act and
such as may be required under state securities laws;
(x) The execution, delivery and performance of the
Indenture (if the Offered Securities are debt securities), the
Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts and the
issuance and sale of the Offered Securities and, if the
Offered Securities are debt securities or preferred stock,
compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary, and the Company
has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(xi) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the
12
date of the Terms Agreement, and any amendment or supplement
thereto, as of its date, complied as to form in all material
respects with the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations; such counsel have no reason
to believe that such registration statement, as of its
effective date, the Registration Statement, as of the date of
the Terms Agreement or as of the Closing Date, or any
amendment thereto, as of its date or as of the Closing Date,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the Terms Agreement or
as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained
any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the
Prospectus which are not described as required or of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or
other financial data contained in the Registration Statement
or the Prospectus; and
(xii) The Terms Agreement (including the provisions
of this Agreement) and, if the Offered Securities are debt
securities or preferred stock, any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the
Company.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of [__________], patent counsel for the Company, in
form and substance reasonably satisfactory in all respects to the
Representatives and their counsel.
(f) The Representatives shall have received from ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities, the Registration
Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP may rely as to the incorporation of the
Company upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Berlack Israels LLP, referred
to above.
(g) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in the Prospectus or
as described in such certificate.
13
(h) The Representatives shall have received a letter, dated
the Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to the Closing Date for the purposes of this
subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors and officers
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the
14
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnified party shall effect any settlement of any pending or threatened
action without the prior written consent of the indemnifying party, which such
consent shall not be unreasonably withheld or delayed; provided that the
indemnifying party shall be deemed to have consented for purposes of this
Section 6 to any proposed settlement of which written notice has been delivered
to it in accordance with Section 9 of the Shelf Underwriting Agreement and with
respect to which it has not notified the indemnified party within 45 days after
delivery of such notice of its election not to consent to such proposed
settlement.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
15
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock) of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock) of Offered Securities, the Lead Underwriter may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount (if debt securities) or number of shares (if preferred stock or
Common Stock) of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount (if debt securities) or
number of shares (if preferred stock or Common Stock) of Offered Securities and
arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. If the Offered
Securities are debt securities or preferred stock, the respective commitments of
the several Underwriters for the purposes of this Section shall be determined
without regard to reduction in the respective Underwriters' obligations to
purchase the principal amounts (if debt securities) or numbers of shares (if
preferred stock) of the Offered Securities set forth opposite their names in the
Terms Agreement as a result of Delayed Delivery Contracts entered into by the
Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 5(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at ▇▇▇▇▇▇ Automation, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, Attention: [__________]
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
16
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws. The Company hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to the Terms Agreement (including the provisions of this
Agreement) or the transactions contemplated thereby.
17
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on ........................ ............, .....(1))
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
▇▇▇▇▇▇ Automation, Inc.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Attention: Transactions Advisory Group
Gentlemen:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ Automation, Inc., a
Delaware corporation ("COMPANY"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert -- as of the date hereof, for
delivery on , ("DELIVERY DATE"),]
[$]..............[shares]
-- principal amount -- of the Company's [Insert title of securities]
("SECURITIES"), offered by the Company's Prospectus dated , and a
Prospectus Supplement dated , relating thereto, receipt of
copies of which is hereby acknowledged, at -- % of the principal amount
thereof plus accrued interest, if any, -- $ per share plus accrued
dividends, if any, -- and on the further terms and conditions set forth in this
Delayed Delivery Contract ("CONTRACT").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the -- principal -- amounts
set forth below:
(1) Insert date which is third full business day prior to Closing
Date under the Terms Agreement.
18
PRINCIPAL AMOUNT
----------------
NUMBER
DELIVERY DATE OF SHARES
------------- ---------
........................... .............
........................... .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on -- the -- each -- Delivery Date shall be made to the Company or its
order in Federal (same day) funds by certified or official bank check or wire
transfer to an account designated by the Company, at the office of
at A.M. on -- the -- such -- Delivery Date upon delivery to the undersigned
of the Securities to be purchased by the undersigned -- for delivery on such
Delivery Date -- in definitive [If debt issue, insert -- fully registered] form
and in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to -- the -- such -- Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on -- the -- each -- Delivery Date shall be subject only
to the conditions that (1) investment in the Securities shall not at -- the --
such -- Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall have
sold to the Underwriters the total -- principal amount -- number of shares -- of
the Securities less the -- principal amount -- -number of shares -- thereof
covered by this and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which governs
such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by -- a copy -- copies -- of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
19
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
..................................
(Name of Purchaser)
By ..............................
..................................
(Title of Signatory)
..................................
..................................
(Address of Purchaser)
Accepted, as of the above date.
▇▇▇▇▇▇ AUTOMATION, INC.
By ...............................
[Insert Title]
20
▇▇▇▇▇▇ AUTOMATION, INC.
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
,
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("UNDERWRITING
AGREEMENT"), the following securities ("OFFERED SECURITIES") on the following
terms:
TITLE: [ %] [Floating Rate] -- Notes -- Debentures -- Bonds --
Due .
PRINCIPAL AMOUNT: $ .
OVER-ALLOTMENT: In addition, upon written notice from the
Representative[s] given to the Company from time to time not more than 30 days
subsequent to the date hereof, the Underwriters may purchase up to $
additional principal amount of the Offered Securities (the "Optional
Securities") at the purchase price. The Company agrees to sell to the
Underwriters the Optional Securities, and the Underwriters agree, severally and
not jointly, to purchase such Optional Securities. Such Optional Securities
shall be purchased for the account of each Underwriter in the same proportion as
the Principal Amount of Offered Securities set forth opposite such Underwriter's
name on Schedule A hereto (subject to adjustment by the Representative[s] to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the
Offered Securities. No Optional Securities shall be sold or delivered unless the
Offered Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by the
Representative[s] to the Company.
INTEREST: [ % per annum, from , , payable
semiannually on and , commencing , , to
holders of record on the preceding or , as the case may
be.] [Zero coupon.]
21
MATURITY: , .
OPTIONAL REDEMPTION:
SINKING FUND:
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock
Market Inc.'s National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
, . Underwriters' fee is % of the principal amount of the
Contract Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest[,
if any,] from , .
EXPECTED REOFFERING PRICE: % of principal amount, subject to
change by the [Representative[s] [Underwriters].
CLOSING: A.M. on , , at ,
in Federal (same day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry
Only via DTC.]
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF THE [REPRESENTATIVE[S]]
[UNDERWRITER[S]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to
the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in
the paragraph under the caption "Underwriting" in the prospectus
supplement and the information contained in the paragraph under the
caption "Underwriting" in the prospectus supplement.
22
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇ AUTOMATION, INC.
By.................................
[Insert title]
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
[If no co-representative, use first confirmation form. If
co-representative, use second.]
.............................................
(Name of Purchaser)
By........................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
.............................................
(Name of Purchaser)
..............................
..............................
[Acting on behalf of themselves and as the
Representatives of the several
Underwriters.]
.............................................
(Name of Purchaser)
By........................
[Insert title]
23
SCHEDULE A
PRINCIPAL
UNDERWRITER AMOUNT
----------- ------
$
------
Total........................................... $
======
24
▇▇▇▇▇▇ AUTOMATION, INC.
("COMPANY")
PREFERRED -- COMMON -- STOCK
TERMS AGREEMENT
,
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("UNDERWRITING
AGREEMENT"), the following securities ("OFFERED SECURITIES") on the following
terms:
TITLE:
NUMBER OF SHARES:
OVER-ALLOTMENT: In addition, upon written notice from the
Representative[s] given to the Company from time to time not more than 30 days
subsequent to the date hereof, the Underwriters may purchase up to
additional shares of the Offered Securities (the "Optional Securities") at the
purchase price. The Company agrees to sell to the Underwriters the Optional
Securities, and the Underwriters agree, severally and not jointly, to purchase
such Optional Securities. Such Optional Securities shall be purchased for the
account of each Underwriter in the same proportion as the Number of Offered
Securities set forth opposite such Underwriter's name on Schedule A hereto
(subject to adjustment by the Representative[s] to eliminate fractions) and may
be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Offered Securities. No
Optional Securities shall be sold or delivered unless the Offered Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by the Representative[s] to the Company.
(1) DIVIDEND RATE:
(1) To be included only if Terms Agreement relates to preferred stock.
25
(1) OPTIONAL REDEMPTION:
(1) SINKING FUND:
(1) LISTING: [None.] [ Stock Exchange.] [The Nasdaq
Stock Market Inc.'s National Market.]
(1) DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall
be , . Underwriters' fee is $ per share of the
Contract Securities.]
PURCHASE PRICE: $ per share [If preferred stock issue,
insert -- plus accrued dividends[, if any,] from , ].
EXPECTED REOFFERING PRICE: $ per share, subject to
change by the [Representative[s]] [Underwriters].
CLOSING: A.M. on , , at
, in Federal (same day) funds.
(2) UNDERWRITER[S']['S] COMPENSATION: $ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF THE [REPRESENTATIVE[S]]
[UNDERWRITER[S]]:]
The respective numbers of shares of the Offered Securities to
be purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the
only information furnished to the Company by any Underwriter for use in the
Prospectus consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in
the paragraph under the caption "Underwriting" in the prospectus
supplement and the information contained in the paragraph under the
caption "Underwriting" in the prospectus supplement.
(2) Include if purchase is at public offering price and compensation
payable separately.
26
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇ AUTOMATION, INC.
By.................................
[Insert title]
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
[If no co-representative, use first confirmation form. If
co-representative, use second.]
.............................................
(Name of Purchaser)
By........................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
.............................................
(Name of Purchaser)
..............................
..............................
[Acting on behalf of themselves and as the
Representatives of the several
Underwriters.]
.............................................
(Name of Purchaser)
By........................
[Insert title]
27
SCHEDULE A
NUMBER OF
UNDERWRITER SHARES
----------- ------
------
Total.....................................................
======
28
