EXHIBIT 1.1
EXECUTION COPY
▇▇▇▇▇▇ AUTOMATION, INC.
("COMPANY")
COMMON STOCK
TERMS AGREEMENT
December 10, 2003
Credit Suisse First Boston LLC
▇▇▇▇▇▇▇, Sachs & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ & Company, Inc.
▇▇ ▇▇▇▇▇ Securities Corporation
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, on and subject to the terms and
conditions of the Underwriting Agreement filed as Exhibit 1.01 to the Company's
registration statement on Form S-3 (No. 333-109535) ("UNDERWRITING Agreement"),
the following securities ("OFFERED SECURITIES") on the following terms:
TITLE: Common Stock
NUMBER OF SHARES: 6,000,000
OVER-ALLOTMENT: In addition, upon written notice from the
Representatives given to the Company from time to time not more than 30 days
subsequent to the date hereof, the Underwriters may purchase up to 900,000
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 Representatives 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 Representatives to the Company.
LISTING: The NASDAQ National Market.
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PURCHASE PRICE: $18.088 per share.
EXPECTED REOFFERING PRICE: $19.00 per share, subject to change by
the Underwriters.
CLOSING: 10:00 A.M. on December 16, 2003, at the offices of ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, Boston, MA, in Federal (same day) funds. In addition,
there may be an Optional Closing Date in order to exercise the Over-Allotment
Option.
BLACKOUT: Until 90 days after the Closing Date.
NAMES AND ADDRESSES OF THE UNDERWRITERS:
Credit Suisse First Boston LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ Securities Corporation
1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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, as supplemented by this Terms Agreement and as amended for all
purposes as follows:
1. Section 2(a) of the Underwriting Agreement is amended by deleting the
parenthetical in the first sentence thereof and replacing it with "(No.
333-109535)".
2. Section 2(b) of the Underwriting Agreement is amended by replacing the
language set forth therein with the following language:
"On the effective date of the registration statement relating to the
Registered Securities, such registration statement conformed in all
material 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
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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
Prospectus will conform in all material 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."
3. Section 2(c) of the Underwriting Agreement is amended to add the
following language to the end of the paragraph: "except where the failure to so
qualify would not individually or in the aggregate have a Material Adverse
Effect (as defined in Section 2(p) below)."
4. Section 2(d) of the Underwriting Agreement is amended to replace the
word "qualification" at the end of the second clause of the paragraph with the
following language: "qualification, except where the failure to so qualify would
not individually or in the aggregate have a Material Adverse Effect".
5. Section 2(g) of the Underwriting Agreement is amended to add the words
"in all material respects" between the words "conform" and "to the description".
6. Section 2(i) of the Underwriting Agreement is amended by adding the
words "in connection with the offering of the Offered Securities" to the end of
the last sentence of the paragraph.
7. Section 2(j) of the Underwriting Agreement is amended by adding the
following language as a parenthetical at the end of the paragraph: "except in
each case in connection with securities offered or to be offered pursuant to
registration statements filed by the Company under the Act prior to the date of
the Prospectus."
8. Section 2(r) of the Underwriting Agreement is amended by adding the
following language to the beginning of the first sentence of the paragraph:
"Except as disclosed in the Prospectus,".
9. Section 2(v) of the Underwriting Agreement is amended to add the words
"to the Company's knowledge" between the words "nor" and "any development".
10. Section 2(z) of the Underwriting Agreement is amended by adding the
words "taken as a whole" between the words "subsidiaries" and "maintain" in the
first sentence of the paragraph.
11. Section 2(aa) of the Underwriting Agreement is amended by replacing
the language set forth therein with the following:
"The Company and its subsidiaries taken as a whole carry, or are covered
by, insurance in such amounts and covering such risks as is adequate for
the conduct of their businesses and the value of their properties and as
is customary for companies engaged in similar industries."
12. Section 2 of the Underwriting Agreement is hereby amended by adding
the following additional representation and warranty following subsection (aa)
thereof:
"(bb) The Company has no direct or indirect subsidiary that is a
significant subsidiary (as such term is defined in Rule 1-02 of Regulation
S-X, as promulgated by the Commission as of the date hereof)."
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13. Section 4(f) of the Underwriting Agreement is amended by adding the
following language as a parenthetical at the end of the paragraph: "provided,
however, that the Company will not be required to qualify as a foreign
corporation or file a consent to service of process in any such jurisdiction."
14. Section 4(g) of the Underwriting Agreement is amended by replacing the
language set forth therein with the following:
"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 the 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, including the cost of any
aircraft chartered in connection with attending or hosting any such
meetings, and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or any
other amendments and supplements to the Prospectus to the Underwriters."
15. Section 4(i) of the Underwriting Agreement is amended by adding the
following language at the end of the paragraph: "or issuances of Common Stock
pursuant to the Company's employee stock purchase or other similar plan, and
plans approved by the Company's shareholders after the date of the Terms
Agreement, and in each case any related registration statements for such
options, issuances and plans."
16. The opinion to be received by the Representatives from ▇▇▇▇▇ ▇▇▇▇▇▇▇
Berlack Israels LLP, pursuant to Section 5(d) of the Underwriting Agreement,
shall be substantially as set forth on Schedule B hereto.
17. Section 5(e) of the Underwriting Agreement is amended by replacing the
bracketed blank space with the words "▇▇▇▇▇▇ & Green, LLP".
18. Section 5 of the Underwriting Agreement is hereby amended by adding
the following additional closing condition following subsection (h) thereof:
"(i) The Representatives shall have received a certificate, dated
the Closing Date, of the Chief Financial Officer of the Company, in form
and substance reasonably satisfactory to the Representatives, in which
such officer shall state that, based upon an examination of the Company's
financial records and schedules undertaken by such officer or members of
staff who are responsible for the Company's financial and accounting
matters, they have compared certain specified financial information
contained in the Prospectus to the Company's financial records and
schedules and found such specified financial information to be in
agreement, except as otherwise specified in such certificate."
19. Section 6(a) of the Underwriting Agreement is amended by adding the
following language as a proviso at the end of the paragraph:
"and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any
preliminary prospectus supplement the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Underwriter from
whom the
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person asserting any such losses, claims, damages or liabilities purchased
the Offered Securities concerned, to the extent that a prospectus relating
to such Offered Securities was required to be delivered by such
Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter 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 Prospectus (exclusive of material incorporated by
reference) if the Company had previously furnished copies thereof to such
Underwriter."
20. Section 9 of the Underwriting Agreement is amended by replacing the
bracketed blank space with the words "General Counsel."
The Offered Securities will be made available for checking and
packaging at the office of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, Boston,
Massachusetts, 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 fourth paragraph under the caption "Underwriting" in the prospectus
supplement and the information contained in the eleventh paragraph under the
caption "Underwriting" in the prospectus supplement.
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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 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
Credit Suisse First Boston LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ & Company, Inc.
▇▇ ▇▇▇▇▇ Securities Corporation
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By Credit Suisse First Boston LLC
By /s/ H. ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Name: H. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
SCHEDULE A
NUMBER OF
UNDERWRITER SHARES
----------- ------
Credit Suisse First Boston LLC 2,613,600
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 1,306,800
▇.▇. ▇▇▇▇▇▇ Securities Inc. 1,306,800
▇▇▇▇▇▇▇ & Company, Inc. 356,400
▇▇ ▇▇▇▇▇ Securities Corporation 356,400
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. 60,000
---------
Total..................................................................... 6,000,000
=========
SCHEDULE B
(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 Arizona, California,
Massachusetts, New York, North Carolina, Pennsylvania, Texas, Oregon, Utah
and Vermont;
(ii) The Offered Securities delivered on the date hereof in accordance
with the Terms Agreement 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 in all material respects to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities under the Company's Certificate of Incorporation, Delaware
General Corporation Law or, to such counsel's knowledge, otherwise;
(iii) Except as disclosed in the Prospectus, to such counsel's knowledge,
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;
(iv) 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;
(v) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required to be obtained or
made by the Company for the consummation of the transactions contemplated
by the Terms Agreement in connection with the issuance or sale of the
Offered Securities, except such as have been obtained and made under the
Act, or as may be required under state securities laws;
(vi) The execution, delivery and performance of the Terms Agreement and
the issuance and sale of the Offered Securities 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 of its properties, or the Certificate of Incorporation or
Bylaws of the Company, or any agreement or instrument filed or
incorporated by reference as an Exhibit to the Company's Annual Report on
Form 10-K for the fiscal year ended September 30, 2003; the Company has
the full power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement;
(vii) The Registration Statement was declared effective under the Act as
of 9:00 a.m. on October 16, 2003, the preliminary prospectus supplement
was filed with the Commission pursuant to Rule 424(b)(5) on December 3,
2003, the final prospectus supplement was filed with the Commission
pursuant to Rule 424(b)(2) on December 11, 2003, and, to the best
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 and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations (it being understood that such counsel need not
express any opinion as to the financial statements, the notes thereto and
related schedules, or other financial data derived from the financial
statements included in, or omitted from, the Registration Statement or the
Prospectus and any amendment or
supplement thereto); no facts have come to the attention of such counsel
that cause such counsel to believe that the Registration Statement, as of
the Effective Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto, as of the date of such
Prospectus or the Closing Date, contains or contained an untrue statement
of a material fact or omits or omitted to state a material fact required
to be stated therein or 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 not express any opinion as to the
financial statements, the notes thereto and related schedules, or other
financial data derived from the financial statements included in, or
omitted from, the Registration Statement or the Prospectus and any
amendment or supplement thereto); except with respect to matters described
under the heading "Notice to Canadian Residents", the descriptions in the
Registration Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents, insofar as such
descriptions constitute a summary of such statutes, legal and governmental
proceedings and contracts or other documents, have been reviewed by such
counsel, are accurate in all material respects and fairly present the
information required to be shown by the Act; and such counsel does not
know of any legal or governmental proceedings required to be described in
the Prospectus under Item 103 of Regulation S-K promulgated under the Act
or of any contracts or documents 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; and
(viii) The Terms Agreement has been duly authorized, executed and
delivered by the Company.