1
Exhibit 10.1
$150,000,000
▇▇▇▇▇▇ AUTOMATION, INC.
4.75% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 1, 2008
PURCHASE AGREEMENT
May 17, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION,
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. ▇▇▇▇▇▇ Automation, Inc., a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S.$150,000,000 principal amount of its 4.75% Convertible
Subordinated Notes Due June 1, 2008 (the "FIRM SECURITIES") and also proposes to
grant to the Purchasers an option, exercisable from time to time by Credit
Suisse First Boston Corporation to purchase an aggregate of up to an additional
$25,000,000 principal amount ("OPTIONAL SECURITIES") of its 4.75% Convertible
Subordinated Notes Due June 1, 2008, each to be issued under an indenture, dated
as of May 23, 2001 (the "INDENTURE"), between the Company and State Street Bank
and Trust Company, as Trustee. The Firm Securities and the Optional Securities
which the Purchasers may elect to purchase pursuant to Section 3 hereof are
herein collectively called the "OFFERED SECURITIES". The United States
Securities Act of 1933 is herein referred to as the "SECURITIES ACT."
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular (the
"PRELIMINARY OFFERING CIRCULAR") and offering circular (the "OFFERING
CIRCULAR"), as supplemented as of the date of this Agreement, and any
other document approved by the Company for use in connection with the
contemplated resale of the Offered Securities are hereinafter
collectively referred to as the "OFFERING DOCUMENT". On the date of
this Agreement, the Offering Document does not include any untrue
statement of a material fact or omit 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 preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston Corporation
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Purchase Agreement-Page 2
("CSFBC") specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section
7(b) hereof. Except as disclosed in the Offering Document, on the date
of this Agreement, the Company's Annual Report on Form 10-K most
recently filed with the Securities and Exchange Commission (the
"COMMISSION") and all subsequent reports (collectively, the "EXCHANGE
ACT REPORTS") which have been filed by the Company with the Commission
or sent to stockholders pursuant to the Securities Exchange Act of 1934
(the "EXCHANGE ACT") do not include any 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. Such documents, when they were filed with
the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) 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 Offering Document; 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, except where such failure to so qualify 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").
(c) 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 Offering Document; 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 except where
such failure to so qualify would not have a Material Adverse Effect;
excluding those subsidiaries of the Company set forth on Schedule B
attached hereto ("MATERIAL SUBSIDIARIES"), the Company has no other
subsidiaries as of the date hereof which (A) on an individual basis,
have total assets or total revenues as of and for the fiscal year ended
September 30, 2000, in each case as determined in accordance with
generally accepted accounting principles ("GAAP"), in excess of ten
percent (10%) of the Company's total assets or total revenues as
reported on a consolidated basis as of and for the fiscal year ended
September 30, 2000, or (B) in the aggregate, have total assets or total
revenues as of and for the fiscal year ended September 30, 2000, as
determined in accordance with GAAP, in excess of ten percent (10%) of
the Company's total assets or total revenues as reported on a
consolidated basis as of and for the fiscal year ended September 30,
2000; 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.
(d) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered Securities
are delivered and paid for pursuant to this Agreement on each Closing
Date (as defined below), 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 Offering Document and the Indenture and such
Offered Securities will constitute valid and legally binding
obligations of
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Purchase Agreement-Page 3
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.
(e) All outstanding shares of capital stock of the Company
have been duly authorized, validly issued, fully paid and are
nonassessable and conform to the description thereof contained in the
Offering Document.
(f) When the Offered Securities are delivered and paid for
pursuant to this Agreement on each Closing Date, such Offered
Securities will be convertible into the shares of common stock
("UNDERLYING SHARES") of the Company in accordance with the terms of
the Indenture; the Underlying Shares 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
Underlying Shares have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description thereof
contained in the Offering Document; and the stockholders of the Company
have no preemptive rights with respect to the Offered Securities or the
Underlying Shares.
(g) 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 this Agreement
and the Registration Rights Agreement dated the date hereof, between
the Company and the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"),
in connection with the issuance and sale of the Offered Securities by
the Company except for the order of the Commission declaring the Self
Registration Statement (as defined in the Registration Rights
Agreement) effective.
(h) The execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement, and the issuance
and sale of the Offered Securities and 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 this
Agreement.
(i) This Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company and
constitute a valid and legally binding obligation of the Company,
enforceable in accordance with their respective 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.
(j) Except as disclosed in the Offering Document, 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
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Purchase Agreement-Page 4
disclosed in the Offering Document, 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.
(k) 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, could have a Material Adverse Effect.
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would have individually or in the aggregate a Material Adverse Effect.
(m) 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.
(n) Except as disclosed in the Offering Document, 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.
(o) Except as disclosed in the Offering Document, 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, this Agreement or the
Registration Rights Agreement, 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.
(p) The financial statements included in the Offering Document
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 Offering Document, such financial statements
have been prepared in conformity
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Purchase Agreement-Page 5
with the generally accepted accounting principles in the United States
applied on a consistent basis.
(q) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the
Offering Document 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 Offering Document,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(r) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and 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 Offering Document, will not be an "investment company"
as defined in the Investment Company Act.
(s) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(t) Assuming the accuracy of the representations and
warranties in Section 4 of this Agreement, the offer and sale of the
Offered Securities in the manner contemplated by this Agreement will be
exempt from the registration requirements of the Securities Act by
reason of Section 4(2) thereof or Regulation D thereunder; and it is
not necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE Act") in connection with the offer, sale
and delivery of the Offered Securities to the Purchasers in the manner
contemplated by this Agreement.
(u) Neither the Company, nor any of its affiliates, nor any
person (except with respect to the Purchasers, as to whom the Company
makes no representations or warranties) acting on its or their behalf
(i) has, within the six-month period prior to the date hereof, offered
or sold the Offered Securities or any security of the same class or
series as the Offered Securities or (ii) has offered or will offer or
sell the Offered Securities in the United States by means of any form
of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act. The Company has not entered and
will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(v) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
(w) Except as disclosed in the Offering Document, 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
Purchaser for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(x) Except as disclosed in the Offering Document or listed on
Schedule 2(x) attached hereto, there are no contracts, agreements or
understandings between the Company and any
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Purchase Agreement-Page 6
person granting such person the right to require the Company to file a
registration statement under the Securities 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 a registration statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(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, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97% of the principal amount thereof,
the respective principal amounts of Firm Securities set forth opposite the names
of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Firm
Securities in the form of one or more permanent global Securities in definitive
form (the "FIRM 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 Offering Document. Payment for the Firm Securities shall be
made by the Purchasers in Federal (same day) funds by official check or checks
or wire transfer to an account at a bank acceptable to CSFBC drawn to the order
of the Company at the office of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP ("▇▇▇▇▇
▇▇▇▇▇▇▇"), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at 9:30 A.M. (New York time), on
May 23, 2001, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein referred
to as the "FIRST CLOSING DATE", against delivery to the Trustee as custodian for
DTC of the Firm Global Securities representing all of the Firm Securities. The
Firm Global Securities will be made available for checking at the above office
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of this Agreement, the
Purchasers may purchase all or less than all of
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Purchase Agreement-Page 7
the Optional Securities at the purchase price per principal amount of Offered
Securities (including any accrued interest thereon to the related Optional
Closing Date). The Company agrees to sell to the Purchasers the number of
Optional Securities specified in such notice and the Purchasers agree, severally
and not jointly, to purchase such Optional Securities. Such Optional Securities
shall be purchased from the Company for the account of each Purchaser in the
same proportion as the number of Firm Securities set forth opposite such
Purchaser's name in Schedule A hereto bears to the total number of Firm
Securities (subject to adjustment by CSFBC to eliminate fractions) and may be
purchased by the Purchasers only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm 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 CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as the "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
on behalf of the several Purchasers but shall not be later than seven full
business days after written notice of election to purchase Optional Securities
is given. The Company will deliver against payment of the purchase price the
Optional Securities being purchased on each Optional Closing Date in the form of
one or more permanent global Securities in definitive form (each, an "OPTIONAL
GLOBAL SECURITY") deposited with the Trustee as custodian for DTC and registered
in the name of Cede & Co., as nominee for DTC. Payment for such Optional
Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of the Company at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇, against
delivery to the Trustee as custodian for DTC of the Optional Global Securities
representing all of the Optional Securities being purchased on such Optional
Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the
Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States except pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. Each Purchaser severally represents
and agrees that it has not offered and sold, and will not offer or
sell, any Offered Securities, except to qualified institutional buyers
within the meaning of Rule 144A under the Securities Act ("RULE 144A").
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or
affiliates of the other Purchasers or with the prior written consent of
the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates has not and will not offer or sell the Offered Securities in
the United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act, including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or radio, or
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Purchase Agreement-Page 8
(ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. Each Purchaser severally
agrees, with respect to resales made in reliance on Rule 144A of any of
the Offered Securities, to deliver either with the confirmation of such
resale or otherwise prior to settlement of such resale a notice to the
effect that the resale of such Offered Securities has been made in
reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent. If, at any time
prior to the completion of the resale of the Offered Securities by the
Purchasers, any event occurs as a result of which the Offering Document
as then amended or supplemented would include an untrue statement of a
material fact or omit 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, or if it is necessary at any such
time to amend or supplement the Offering Document to comply with any
applicable law, the Company promptly will notify CSFBC of such event
and promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission or effect such
compliance. Neither CSFBC's consent to, nor the Purchasers' delivery to
offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any
Preliminary Offering Circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as CSFBC requests, and the Company will furnish
to CSFBC on the date hereof three copies of the Offering Document
signed by a duly authorized officer of the Company, one of which will
include the independent accountants' reports therein manually signed by
such independent accountants. At any time when the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to CSFBC (and, upon request,
to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant
to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection
with resales by such holders of the Offered Securities The Company will
pay the expenses of printing and distributing to the Purchasers all
such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United
States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) During the period of five years hereafter, the Company
will furnish to CSFBC and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the
Company will furnish to CSFBC and, upon request, to each of the other
Purchasers (i) as soon as available, a copy of each
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Purchase Agreement-Page 9
report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as
CSFBC may reasonably request.
(e) During the period of two years after the later of the
First Closing Date and the last Optional Closing Date, the Company
will, upon request, furnish to CSFBC, each of the other Purchasers and
any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(f) During the period of two years after the later of the
First Closing Date and the last Optional Closing Date, the Company will
not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that
have been reacquired by any of them.
(g) During the period of two years after the later of the
First Closing Date and the last Optional Closing Date, the Company will
not be or become, an open-end investment company, unit investment trust
or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights Agreement, including (i) the fees and expenses
of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities , the preparation of this
Agreement, the Registration Rights Agreement, the Offered Securities,
the Indenture, the Offering Document and amendments and supplements
thereto, and any other document relating to the issuance, offer, sale
and delivery of the Offered Securities; (iii) the cost of listing the
Offered Securities and qualifying the Offered Securities for trading in
The Portal(SM) Market and any expenses incidental thereto; (iv) the
cost of any advertising approved by the Company in connection with the
issue of the Offered Securities; (v) for any expenses (including fees
and disbursements of counsel) incurred in connection with qualification
of the Offered Securities for sale under the laws of such jurisdictions
in the United States and Canada as CSFBC designates and the printing of
memoranda relating thereto and (vi) for expenses incurred in
distributing Preliminary Offering Circulars and the Offering Document
(including any amendments and supplements thereto) to the Purchasers.
The Company, on the one hand, and the Purchasers, on the other hand,
shall equally share the expenses relating to the private jet used by
certain of the Company's officers and employees and representatives of
the Purchasers in connection with attending meetings with prospective
purchasers of the Offered Securities.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(j) The Company will not at any time offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale,
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Purchase Agreement-Page 10
pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act to cease to be applicable to the
offer and sale of the Offered Securities.
(k) For a period of 90 days after the date of the initial
offering of the Offered Securities by the Purchasers, 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 Securities Act relating to, any shares of the
Company's common stock, par value $.01 per share (the "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 CSFBC, except (i) issuances of Common Stock pursuant
to the terms of an employee stock purchase plan in effect on the date
hereof and filing with the Commission registration statements on Form
S-8 with respect to such employee stock purchase plan, (ii) grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Common Stock pursuant to the exercise of such
options and filing with the Commission registration statements on Form
S-8 with respect to such employee stock option plan, (iii) the exercise
of any other employee stock option outstanding on the date hereof or
(iv) except as otherwise contemplated by the Registration Rights
Agreement.
(l) The Company will cause to be delivered to the Purchasers
an agreement in substantially the form attached hereto on Schedule C
dated on or before the date of this Agreement from the Company's
directors and executive officers to the effect that such person or
entity (A)(i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for
Common Stock or (A)(ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such
transaction described in clause (A)(i) or (A)(ii) above is to be
settled by delivery of Common Stock or such other securities, in cash
or otherwise, (B) publicly disclose the intention to effect any such
transaction or (C) make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common
Stock, in each case, for a period of 90 days after the date hereof
without the prior written consent of CSFBC (collectively, the "LOCKUP
AGREEMENTS").
(m) In connection with the sale of the Offered Securities to
the Purchasers, the Company will file the notice on Form D required by
Rule 503 under the Securities Act within the time required by such Rule
and otherwise in compliance with such Rule. A copy of such notice shall
be furnished promptly to CSFBC.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Firm Securities on the First
Closing Date and for the Optional Securities on each Optional Closing Date 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 officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of PricewaterhouseCoopers LLP confirming that
they are independent public accountants within the
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Purchase Agreement-Page 11
meaning of the Securities Act and the applicable published rules and
regulations thereunder ("RULES AND REGULATIONS") and to the effect
that:
(i) in their opinion the financial statements
examined by them and included in the Offering Document and in
the Exchange Act Reports comply as to form in all material
respects with the applicable accounting requirements of the
Securities 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. 71, Interim Financial
Information, on the unaudited financial statements included in
the Offering Document and in the Exchange Act Reports;
(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 and
summary of earnings included in the Offering Document
do not comply as to form in all material respects
with the applicable accounting requirements of the
Securities Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements for them
to be in conformity with generally accepted
accounting principles;
(B) 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 this Agreement,
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 Offering Document and the
Exchange Act Reports; or
(C) for the period from the closing date of
the latest income statement included in the Offering
Document and the Exchange Act Reports 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 Offering Document, in consolidated
net sales, net operating income or in the total or
per share amounts of consolidated net income or in
the ratio of earnings to fixed charges;
except in all cases set forth in clauses (A), (B) and (C)
above for changes, increases or decreases which the Offering
Document disclose have occurred or may occur or which are
described in such letter; and
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Purchase Agreement-Page 12
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document and
the Exchange Act Reports (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.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of CSFBC,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market, or (ii) (A)
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 or its subsidiaries taken as a whole
which, in the judgment of a majority in interest of the Purchasers
including CSFBC, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of
and payment for the Offered Securities; (B) 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 Securities 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); (C) any material suspension or
material limitation of trading in securities generally on The Nasdaq
National Market or The New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by U.S.
Federal or New York authorities; or (E) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Purchasers including CSFBC, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering
or sale of and payment for the Offered Securities.
(c) (1) The Purchasers shall have received an opinion, dated
such Closing Date, of Brown, Rudnick, Freed & Gesmer, P.C., 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
Offering Document; and the Company is duly qualified to do
business as a foreign corporation in good standing in
Massachusetts and California;
(ii) ▇▇▇▇▇▇ Automation Massachusetts Securities
Corporation has been duly incorporated and is an existing
corporation in good standing under the laws of the
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Purchase Agreement-Page 13
Commonwealth of Massachusetts, with corporate power and
authority to own its properties and conduct its business as
described in the Offering Document; and all of its issued and
outstanding shares have been duly and validly authorized and
issued, are fully paid and nonassessable and, unless otherwise
stated in the Offering Document, are owned of record by the
Company directly, to such counsel's knowledge, free and clear
of all liens, encumbrances, equities, claims, security
interests, voting trusts or other defects of title whatsoever;
(iii) The Indenture has been duly authorized,
executed and delivered; the Offered Securities delivered on
such Closing Date have been duly authorized, executed,
authenticated, issued and delivered and conform to the
description thereof contained in the Offering Document; and
the Indenture and the Offered Securities delivered on such
Closing Date 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;
(iv) The Offered Securities delivered on such Closing
Date are convertible into Common Stock of the Company in
accordance with the terms of the Indenture; the shares of such
Common Stock initially issuable upon conversion of the Offered
Securities delivered on such Closing Date have been duly
authorized and reserved for issuance upon such conversion and,
when issued upon such conversion in accordance with the terms
of the Indenture, will be validly issued, fully paid and
nonassessable; the outstanding shares of such Common Stock
have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description thereof
contained in the Offering Document; and the stockholders of
the Company have no preemptive rights with respect to the
Offered Securities or the Underlying Shares under the
Company's Certificate of Incorporation, under Delaware General
Corporation Law or, to such counsel's knowledge, otherwise;
(v) 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 this Agreement and the Registration Rights
Agreement in connection with the issuance or sale of the
Offered Securities by the Company, except such as may be
required under state securities laws and except for the order
of the Commission declaring the Shelf Registration Statement
effective and except for the filing of a notice of sale on
Form D as required by Rule 503 of Regulation D of the
Securities Act;
(vi) To such counsel's knowledge, 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 materially and adversely affect the
ability of the Company to perform its obligations under the
Indenture, this Agreement or the Registration Rights
Agreement; and such counsel do not know of any legal or
governmental proceedings that would be required to be
disclosed by the Company under Item 103 under Regulation S-K
promulgated under the Securities Act;
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Purchase Agreement-Page 14
(vii) The execution, delivery and performance of the
Indenture, this Agreement and the Registration Rights
Agreement and the issuance and sale of the Offered Securities
and Underlying Shares 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 Material Subsidiary (which, for
purposes of this (vii) only, shall include ▇▇▇▇▇▇ Automation
Japan (KK)) of the Company or any of their properties
(provided, however, that with respect to such opinion given
with respect to any Material Subsidiary which is not organized
or incorporated within the United States, such opinion is
given to such counsel's knowledge), or, to such counsel's
knowledge, any agreement or instrument to which the Company or
any Material Subsidiary is a party or by which the Company or
any Material Subsidiary is bound or to which any of the
properties of the Company or any Material Subsidiary is
subject, or the charter or by-laws of the Company or any
Material Subsidiary organized or incorporated within the
United States, and the Company has full power and authority to
authorize, issue and sell the Offered Securities and
Underlying Shares as contemplated by this Agreement;
(viii) Such counsel has participated in conferences
with officers and other representatives of the Company, and
representatives of the independent public accountants for the
Company, and your representatives, at which conferences the
contents of the Offering Document and related matters were
discussed and, although such counsel need not pass upon, nor
assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Offering Document,
no facts have come to the attention of such counsel that cause
such counsel to believe that the Offering Document, as of the
date hereof and of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, it
being understood that such counsel need express no belief with
respect to the financial statements, the notes thereto and
related schedules, or other financial data or statistical data
derived from the financial statements included in, or omitted
from, the Offering Document;
(ix) This Agreement and the Registration Rights
Agreement have each been duly authorized, executed and
delivered by the Company;
(x) It is not necessary in connection with (i) the
offer, sale and delivery of the Offered Securities by the
Company to the several Purchasers pursuant to this Agreement
or (ii) the resales of the Offered Securities by the several
Purchasers in the manner contemplated by this Agreement, to
register the Offered Securities or Offered Stock under the
Securities Act or to qualify an indenture in respect thereof
under the Trust Indenture Act; and
(xi) 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
Offering Document, will not be an "investment company" as
defined in the Investment Company Act.
(2) The Purchasers shall have received an opinion, dated such
Closing Date, from each of the following: local counsel in Germany
for ▇▇▇▇▇▇ Automation GmbH and ▇▇▇▇▇▇
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Purchase Agreement-Page 15
Automation Holding GmbH and local counsel in Japan for ▇▇▇▇▇▇
Automation Japan (KK); in each case to the effect that each such
company has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its
incorporation or organization, with corporate power and authority
to own its properties and conduct its business as described in the
Offering Document, that, if applicable, each such 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 and that all of the issued and outstanding shares or
equivalent equity interests of each such company have been duly
and validly authorized and issued, are fully paid and
nonassessable and, unless otherwise stated in the Offering
Document, are owned of record by the Company, directly or
indirectly through another subsidiary, to such counsel's knowledge
free and clear of all liens, encumbrances, equities, claims,
security interests, voting trusts or other defects of title
whatsoever.
(3) The Purchasers shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇ & Green, patent counsel for the Company,
in form and substance reasonably satisfactory in all respects to
the Purchasers and their counsel.
(d) The Purchasers shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇,
counsel for the Purchasers, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Offering Circular, the exemption from registration for the offer and
sale of the Offered Securities by the Company to the several Purchasers
and the resales by the several Purchasers as contemplated hereby and
other related matters as CSFBC 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.
(e) The Purchasers shall have received a certificate, dated
such 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 such Closing
Date, and that, subsequent to the respective dates of the most recent
financial statements in the Offering Document 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 or
contemplated by the Offering Document or as described in such
certificate.
(f) The Purchasers shall have received a letter, dated such
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 such Closing Date for the purposes of this
subsection.
(g) On or prior to the date of this Agreement, the Purchasers
shall have received Lockup Letters from each of the executive officers
and directors of the Company.
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Purchase Agreement-Page 16
Documents described as being "in the agreed form" are documents which
are in the forms which have been initialed for the purpose of identification by
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, copies of which are held by the Company and
CSFBC, with such changes as CSFBC may approve.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Purchaser, its partners, directors and officers and each
person, if any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular or the Exchange Act Reports, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, including any losses,
claims, damages or liabilities arising out of or based upon the Company's
failure to perform its obligations under Section 5(a) of this Agreement, and
will reimburse each Purchaser for any legal or other expenses reasonably
incurred by such Purchaser 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 Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any Preliminary
Offering Circular, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Purchaser that sold the Offered Securities
concerned to the person asserting any such losses, claims, damages or
liabilities, to the extent that such sale was an initial resale by such
Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Offering Document (exclusive of any material included
therein but not attached thereto) if the Company had previously furnished copies
thereof to such Purchaser.
(b) Each Purchaser 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 Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, 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
Purchaser through CSFBC specifically for
17
Purchase Agreement-Page 17
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 Purchaser
consists of the following information in the Offering Document: under the
caption "Plan of Distribution", the ninth paragraph (stating there is no market
with respect to the securities, etc.) and the eleventh paragraph (describing
certain activities of the initial purchasers, etc.); provided, however, that the
Purchasers shall not be liable for any losses, claims, damages or liabilities
arising out of or based upon the Company's failure to perform its obligations
under Section 5(a) of this 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 omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any 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 indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could reasonably be expected to have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and does not
include a statement as to or an admission of fault, culpability or failure to
act by or on behalf of any indemnified party. 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.
(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 Purchasers 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 Purchasers 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 Purchasers 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 discounts and commissions received by the
Purchasers from the Company under this Agreement. 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 Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue
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Purchase Agreement-Page 18
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 Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities purchased by it were resold exceeds the
amount of any damages which such Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. The Purchasers' obligations in this subsection (d) to contribute are
several in proportion to their respective purchase 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
Purchaser within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the aggregate principal amount of
Offered Securities that such defaulting Purchaser or Purchasers agreed but
failed to purchase does not exceed 10% of the total principal amount of Offered
Securities that the Purchasers are obligated to purchase on such Closing Date,
CSFBC may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Purchasers, but if no
such arrangements are made by such Closing Date, the non-defaulting Purchasers
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Purchasers
agreed but failed to purchase on such Closing Date. If any Purchaser or
Purchasers so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities that the Purchasers are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Purchaser or the Company, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement shall not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Purchaser" includes
any person substituted for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
9. 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 Purchasers set forth in or made
pursuant to 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 Purchaser, 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 this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect and if any Offered Securities have been purchased hereunder
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Purchase Agreement-Page 19
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Purchasers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (C), (D) or (E) of Section 6(b)(ii), the Company will
reimburse the Purchasers 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.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: President; provided, however, that any notice to a
Purchaser pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you jointly or by CSFBC will be binding upon all the Purchasers.
13. Counterparts. This 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.
14. Applicable Law. THIS 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 this
Agreement or the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
20
Signature Page to Purchase Agreement
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇ AUTOMATION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President, Finance and
Administration and Chief Financial Officer
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
By CREDIT SUISSE FIRST BOSTON CORPORATION
By./s/ ▇▇▇▇▇ ▇▇▇▇
--------------
Title: Managing Director
21
SCHEDULE A
PRINCIPAL AMOUNT OF
PURCHASER FIRM SECURITIES
--------- ---------------
Credit Suisse First Boston Corporation....................... $105,000,000
▇▇ ▇▇▇▇▇ Securities Corporation 45,000,000
------------
Total.......................... $150,000,000
============
22
SCHEDULE B
MATERIAL SUBSIDIARIES
---------------------------------------------------------------------------------------------------------------
Jurisdiction of Jurisdictions in which
incorporation or such entity is qualified to
Subsidiary organization conduct business
---------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Automation Massachusetts Securities Corporation Massachusetts None
---------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Automation GmbH Germany None
---------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Automation Holding GmbH Germany None
---------------------------------------------------------------------------------------------------------------
23
SCHEDULE 2(x)
The Company has granted registration rights to certain individuals in connection
with its acquisition of SimCon N.V. In addition, the Company expects to grant
registration rights to KLA-Tencor, Inc. in connection with the Company's
proposed acquisition of certain assets of KLA-Tencor, Inc. The Company also
expects to grant registration rights to certain individuals in connection with
the Company's proposed acquisition of CCS Technology, Inc. The Company may grant
registration rights in connection with other possible future acquisitions.
24
SCHEDULE C
FORM OF LOCKUP AGREEMENT