CHANGE OF CONTROL SEVERANCE AGREEMENT
Exhibit 10.28
CHANGE OF CONTROL SEVERANCE AGREEMENT (this “Agreement”), by and between SYNAPTICS
INCORPORATED, a Delaware corporation (the “Company”), and Xxxxxxx Xxxxxxx (“Executive”) is entered
into as of the 4th day of October, 2011.
RECITALS
A. The Company is engaged primarily in the business of the development and supply of
custom-designed user interface solutions that enable people to interact more easily and intuitively
with a wide variety of mobile computing and communications devices (collectively, the “Business”).
B. Executive is the Chief Executive Officer (the “CEO”) of the Company or an executive officer
of the Company who has been designated by the Board of Directors or the Compensation Committee of
the Board of Directors to become a party to this Agreement (a “Designated Officer”).
C. The Board of Directors of the Company (the “Board”) has determined that it is in the best
interests of the Company and its stockholders to assure that the Company will have the continued
dedication of Executive despite the possibility, threat, or occurrence of a Change of Control (as
defined below) of the Company.
D. The Board believes it is imperative to diminish the inevitable distraction of Executive by
virtue of the personal uncertainties and risks created by a pending or threatened Change of
Control, to encourage Executive’s full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to provide Executive with compensation
arrangements upon a Change of Control that afford Executive with a requisite amount of individual
financial security and are competitive with those of other corporations. In order to accomplish
these objectives, the Board has caused the Company to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants, and conditions set
forth herein and the performance of each, it is hereby agreed as follows:
1. Definitions.
(a) Change of Control. For the purpose of this Agreement, a “Change of Control” shall mean
any of the following:
(i) Change of Control. A change in control of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended, or if Item 6(e) is no longer in effect, any regulations issued by
the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
which serve similar purposes;
(ii) Turnover of Board. The following individuals no longer constitute a majority of the
members of the Board: (A) the individuals who, as of the date of this Agreement constitute the
Board (the “Current Directors”); (B) the individuals who thereafter are elected to the Board and
whose election, or nomination for election, to the Board was approved by a vote of all of the
Current Directors then still in office (such directors becoming “Additional Directors” immediately
following their election); and (C) the individuals who are elected to the Board and whose election,
or nomination for election, to the Board was approved by a vote of all of the Current Directors and
Additional Directors then still in office (such directors also becoming “Additional Directors”
immediately following their election);
(iii) Tender Offer. A tender offer or exchange offer is made whereby the effect of such offer
is to take over and control the Company, and such offer is consummated for the equity securities of
the Company representing twenty percent (20%) or more of the combined voting power of the Company’s
then outstanding voting securities;
(iv) Merger or Consolidation. The stockholders of the Company shall approve a merger,
consolidation, recapitalization, or reorganization of the Company, a reverse stock split of
outstanding voting securities, or consummation of any such transaction if stockholder approval is
not obtained, other than any such transaction that would result in at least seventy-five percent
(75%) of the total voting power represented by the voting securities of the surviving entity
outstanding immediately after such transaction being beneficially owned by the holders of
outstanding voting securities of the Company immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such continuing holders not substantially
altered in the transaction;
(v) Liquidation or Sale of Assets. The stockholders of the Company shall approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition by the Company of
all or a substantial portion of the Company’s assets to another person, which is not a wholly owned
subsidiary of the Company (i.e., fifty percent (50%) or more of the total assets of the Company);
or
(vi) Stockholdings. Any “person” (as that term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under that act), directly or indirectly of more than twenty percent (20%) of the total
voting power represented by the Company’s then outstanding voting Securities.
(b) Change of Control Period. The “Change of Control Period” shall mean the period commencing
on the Effective Date and ending on the eighteen (18) month anniversary of the Effective Date.
(c) Effective Date. The “Effective Date” shall be the closing date of the transaction on
which a Change of Control occurs.
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(d) Good Cause. “Good Cause,” as it applies to the determination of the Company to terminate
the employment of an Executive, shall mean any one or more of the following: (i) Executive’s
willful, material, and irreparable breach of this Agreement; (ii) Executive’s gross negligence in the performance or intentional nonperformance (continuing for
thirty (30) days after receipt of written notice of need to cure) of any of Executive’s material
duties and responsibilities hereunder; (iii) Executive’s willful dishonesty, fraud, or misconduct
with respect to the business or affairs of the Company, which materially and adversely affects the
operations or reputation of the Company; (iv) Executive’s indictment for, conviction of, or guilty
plea to a felony crime involving dishonesty or moral turpitude whether or not relating to the
Company; or (v) a confirmed positive illegal drug test result.
(e) Good Reason. “Good Reason,” as it applies to the determination by an Executive to
terminate his or her employment with the Company, shall mean the occurrence of any of the following
events without Executive’s prior written approval: (i) Executive is demoted by means of a material
reduction in authority, responsibilities, or duties; (ii) Executive’s annual base salary for a
fiscal year (“Base Salary”) is reduced to a level that is less than 90% of the Base Salary paid to
Executive during the prior fiscal year or Executive’s Targeted Bonus is reduced to a level that is
less than 90% of the Targeted Bonus for Executive during the prior fiscal year; (iii) Executive is
required to render his or her principal duties from a Company location that is more than fifty (50)
miles from a Company location from which Executive performs his or her principal duties at the time
Executive entered into this Agreement other than as has been previously contemplated by the Company
and Executive; or (iv) the Company breaches a material provision of this Agreement.
(f) Insurance Coverage. “Insurance Coverage” shall mean, for Executive and/or Executive’s
family who are qualified to participate, as the case may be, all benefits under welfare benefit
plans, practices, policies, and programs provided by the Company and its subsidiaries (including,
without limitation, medical, prescription, dental, disability, salary continuance, employee life,
group life, accidental death, and travel accident insurance plans and programs), at least as
favorable as the most favorable of such plans, practices, policies, and programs in effect at any
time during the one hundred eighty (180) day period immediately preceding the Effective Date or, if
more favorable to Executive and/or Executive’s family, as in effect at any time thereafter with
respect to other key executives.
(g) Targeted Bonus. “Targeted Bonus” shall mean, for each fiscal year of the Company, either
(i) a bonus program in which Executive shall be entitled to participate, which provides Executive
with a reasonable opportunity, based on the past compensation practices of the Company and
Executive’s then base salary, to maintain or increase Executive’s total compensation compared to
the previous fiscal year or (ii) a targeted bonus based on such factors as the Board may determine.
2. Non-Competition Agreement.
(a) Non-Competition. Notwithstanding the provisions of California law, including, without
limitation, Bus. & Prof. Code Secs. 16600 et seq. and 17200 et seq., the parties agree that, during
the Change of Control Period, and for a period for which severance payments are being made by the
Company to Executive in accordance with this Agreement, Executive shall not, directly or
indirectly, for himself or on behalf of or in conjunction with any other Person:
(i) Other Activities. Engage, as an officer, director, shareholder, owner, principal,
partner, lender, joint venturer, employee, independent contractor, consultant, advisor, or sales
representative, in any Competitive Business within the Restricted Territory, provided that the
ownership of less than three percent (3%) of a company shall not be deemed a violation of this
provision;
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(ii) Solicitation of Employees. Call upon any person who is, at that time, within the
Restricted Territory, an employee of the Company or any of its subsidiaries, in a managerial or
supervisory capacity for the purpose or with the intent of enticing such employee away from or out
of the employ of the Company or any of its subsidiaries;
(iii) Solicitation of Customers. Call upon any Person who is, at that time, or who has been,
within one (1) year prior to that time, a customer of the Company or any of its subsidiaries,
within the Restricted Territory for the purpose of soliciting or selling products or services in
direct competition with the Company or any of its subsidiaries within the Restricted Territory; or
(iv) Solicitation of Acquisition Candidates. Call upon any prospective acquisition candidate,
on Executive’s own behalf or on behalf of any Person, which candidate was, to Executive’s knowledge
after due inquiry, either called upon by the Company, or for which the Company made an acquisition
analysis, for the purpose of acquiring such candidate.
(b) Certain Definitions. As used in this Agreement, the following terms shall have the
meanings ascribed to them:
(i) Competitive Business shall mean any Person that engages in a business the same as, similar
to, or in direct competition with the Business;
(ii) Person shall mean any individual, corporation, limited liability company, partnership,
firm, or other business of whatever nature;
(iii) Restricted Territory shall mean any jurisdiction in which the Company or any subsidiary
of the Company maintains any facilities, sells any products, or provides any services; and
(iv) Subsidiary shall mean the Company’s consolidated subsidiaries, including corporations,
partnerships, limited liability companies, and any other business organization in which the Company
holds at least a fifty percent (50%) equity interest.
(c) Enforcement. Because of the difficulty of measuring economic losses to the Company as a
result of a breach of the foregoing covenants in this paragraph 2, and because of the immediate and
irreparable damage that could be caused to the Company for which it would have no other adequate
remedy, Executive agrees that the foregoing covenants may be enforced by the Company in the event
of breach by Executive, by injunctions and restraining orders.
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(d) Reasonable Restraint. In agreeing to the period of non-competition as set forth herein,
Executive acknowledges that he has had the opportunity to speak with counsel of his choice in
connection with the force and effect of this waiver, and that he is aware that he is waiving rights
under California law to contest the imposition of a non-competition agreement. In agreeing to be
bound hereby, Executive is accepting the consideration extended to him in exchange for a knowing
waiver of his rights, and as full and complete consideration for this waiver, and acknowledges the
adequacy of such consideration. Both parties agree that Executive’s agreement to this term
constitutes a substantial and material term to the Company, without which the Company would not
enter into this Agreement or extend this offer of employment to Executive. Executive agrees that
the Company may seek and secure an injunction against Executive in order to enforce the terms
hereof in the event that Executive breaches this provision. Executive acknowledges that the scope
of the non-competition clause is reasonable in scope and will not preclude him from seeking gainful
employment in alternative fields. To the extent that any court of competent jurisdiction
determines that the non-competition provisions are unreasonable, it is the intent of the parties to
enforce the terms hereof to the full extent held reasonable.
(e) Separate Covenants. The covenants in this paragraph 2 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any other covenant.
Moreover, in the event any court of competent jurisdiction shall determine that the scope, time, or
territorial restrictions set forth are unreasonable, then it is the intention of the parties that
such restrictions be enforced to the fullest extent that the court deems reasonable, and this
Agreement shall thereby be reformed.
(f) Independent Agreement. Except as otherwise provided herein, all of the covenants in this
paragraph 2 shall be construed as an agreement independent of any other provision in this
Agreement, and the existence of any claim or cause of action of Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants. It is specifically agreed that the period following
termination of employment stated at the beginning of this paragraph 2, during which the agreements
and covenants of Executive made in this paragraph 2 shall be effective, shall be computed by
excluding from such computation any time during which Executive is in violation of any provision of
this paragraph 2.
3. Term; Termination; Rights on Termination.
(a) Term. The term of this Agreement shall be for a period commencing on the date hereof and
continuing until third anniversary of the date hereof.
(b) Termination. Executive’s employment under this Agreement may be terminated in any one of
the followings ways:
(i) Death of Executive. The employment of Executive shall terminate during the Change of
Control Period immediately upon Executive’s death. In the event Executive’s employment is
terminated as a result of Executive’s death, Executive shall have no right under this Agreement to
any severance compensation.
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(ii) Disability of Executive. If, during the Change of Control Period, as a result of
incapacity due to physical or mental illness or injury, Executive shall have been absent from
Executive’s full-time duties hereunder for six (6) consecutive months, then thirty (30) days after
giving written notice to Executive (which notice may occur before or after the end of such six (6)
month period, but which shall not be effective earlier than the last day of such six (6) month
period), the Company may terminate Executive’s employment provided Executive is unable to resume
Executive’s full-time duties at the conclusion of such notice period. Also, Executive may
terminate Executive’s employment if Executive’s health should become impaired to an extent that
makes the continued performance of Executive’s duties hereunder hazardous to Executive’s physical
or mental health or Executive’s life, provided that Executive shall have furnished the Company with
a written statement from a qualified doctor to such effect and provided, further, that, at the
Company’s request made within ten (10) days of the date of such written statement, Executive shall
submit to an examination by a doctor selected by the Company who is reasonably acceptable to
Executive or Executive’s doctor and such doctor shall have concurred in the conclusion of
Executive’s doctor. In the event Executive’s employment is terminated as a result of Executive’s
disability, Executive shall have no right under this Agreement to any severance compensation.
(iii) Termination by the Company for Good Cause. The Company may terminate Executive’s
employment during the Change of Control Period upon ten (10) days prior written notice to Executive
for Good Cause. In the event of a termination by the Company for Good Cause, Executive shall have
no right under this Agreement to any severance compensation.
(iv) Termination by the Company Without Good Cause or by Executive with Good Reason. The
Company may terminate Executive’s employment without Good Cause during the Change of Control Period
upon the approval of a majority of the members of the Board, excluding Executive if Executive is a
member of the Board. Executive may terminate Executive’s employment with Good Reason during the
Change of Control Period upon ten (10) days prior written notice to the Company. For purposes of
this paragraph 3(b)(iv), any good faith determination of “Good Reason” made by Executive shall be
conclusive. Should the Company terminate Executive’s employment without Good Cause during the
Change of Control Period or should Executive terminate Executive’s employment with Good Reason
during the Change of Control Period, the Company shall, for a period of eighteen (18) months after
termination in the case of the CEO and twelve (12) months after termination in the case of any
other Designated Officer, pay to Executive on each regular payroll date as in effect on termination
a pro-rata amount equal to the sum of (A) one hundred fifty percent (150%) of Executive’s Base
Salary in the case of the CEO and one hundred percent (100%) of Executive’s Base Salary in the case
of any other Designated Officer and (B) one hundred fifty percent (150%) of Executive’s Targeted
Bonus in the case of the CEO and one hundred percent (100%) of Executive’s Targeted Bonus in the
case of any other Designated Officer, in each case for the fiscal year during which termination
occurs. The foregoing amounts shall be paid as follows: (x) to the extent the payments are not
“deferred compensation” for purposes of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), then such payments shall commence upon the first regular payroll date
following termination; and (y) to the extent the payments are “deferred compensation” for purposes
of Section 409A of the Code, then such payments shall commence upon the 60th
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day following the date termination. For purposes of the preceding clause (y), the first such cash payment shall include payment of all amounts that
otherwise would have been due prior thereto under the terms of this Agreement had such payments
commenced after the date of termination, and any payments to be made thereafter shall continue as
provided herein, and the delayed payments shall in any event expire at the time such payments would
have expired had such payments commenced immediately following the date of termination. Further,
if during the Change of Control Period the Company terminates Executive’s employment without Good
Cause or Executive terminates Executive’s employment with Good Reason, (1) the Company shall, for a
period of eighteen (18) months after termination in the case of the CEO and twelve (12) months
after termination in the case of any other Designated Officer, continue the Insurance Coverage if
and to the extent required by COBRA by way of making the family medical insurance premium payments
contemplated by COBRA; (2) the Company shall, for a period of eighteen (18) months after
termination in the case of the CEO and twelve (12) months after termination in the case of any
other Designated Officer, maintain life insurance coverage comparable to that provided immediately
prior to termination, if any, with the beneficiary designated by Executive; and (3) Executive shall
be entitled to receive all other accrued but unpaid benefits relating to vacations, Insurance
Coverage, and other executive perquisites through Executive’s last day of employment.
(v) Resignation by Executive Without Good Reason. Executive may without cause and without
Good Reason terminate Executive’s own employment during the Change of Control Period, effective
thirty (30) days after written notice is provided to the Company or such earlier time as any such
resignation may be accepted by the Company. If Executive resigns or otherwise terminates
Executive’s employment without Good Reason, Executive shall receive no severance compensation under
this Agreement.
(vi) Effect on Stock Options and Deferred Stock Units. In the event Executive is terminated
(A) during the Change of Control Period and (B) by the Company without Good Cause or by Executive
with Good Reason, all unvested stock options and deferred stock units held by Executive shall vest
as of the day immediately preceding any such termination of Executive’s employment, provided that
any options or deferred stock units granted prior to the date hereof that included specific
provisions regarding accelerated vesting shall be unchanged. In addition, any vested stock options
(including those vested as a result of this paragraph 3(b)(vi)) held by Executive shall be
exercisable for ninety (90) days after the termination of Executive’s employment, but not beyond
their original term.
(c) Payments to Termination Date. Upon termination of Executive’s employment under this
Agreement for any reason provided above, Executive shall be entitled to receive all compensation
earned and all benefits and reimbursements due through the effective date of termination.
Additional compensation subsequent to termination, if any, will be due and payable to Executive
only to the extent and in the manner expressly provided above. All other rights and obligations of
the Company and Executive under this Agreement shall cease as of the effective date of termination,
except that the Company’s obligations under paragraph 8 (relating to indemnification of Executive)
and Executive’s obligations under paragraph 2 (relating to non-competition and non-solicitation, as
applicable), paragraph 5 (relating to return of Company property), paragraph 6 (relating to
inventions), paragraph 7 (relating to trade secrets), and paragraph 9 (relating to prior
agreements) shall survive such termination in accordance with their terms.
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(d) Failure to Pay Executive. If termination of Executive’s employment arises out of the
Company’s failure to pay Executive on a timely basis the amounts to which Executive is entitled
under this Agreement or as a result of any other breach of this Agreement by the Company, as
determined by a court of competent jurisdiction or pursuant to the provisions of paragraph 16, the
Company shall pay all amounts and damages to which Executive may be entitled as a result of such
breach, including interest thereon and all reasonable legal fees and expenses and other costs
incurred by Executive to enforce Executive’s rights hereunder. Further, none of the provisions of
paragraph 2 (relating to non-competition) shall apply in the event Executive’s employment under
this Agreement is terminated as a result of a breach by the Company.
4. Certain Reduction of Payments by the Company.
(a) Potential Section 280G Reductions. Notwithstanding anything in this Agreement to the
contrary, in the event that it shall be determined that any payment, distribution, or other action
by the Company to or for the benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (a “Payment”)) would result in
an “excess parachute payment” within the meaning of Section 280G(b)(i) of the Code, and the value
determined in accordance with Section 280G(d)(4) of the Code of the Payments, net of all taxes
imposed on Executive (the “Net After-Tax Amount”), that Executive would receive would be increased
if the Payments were reduced, then the Payments shall be reduced by an amount (the “Reduction
Amount”) so that the Net After-Tax Amount after such reduction is greatest. For purposes of
determining the Net After-Tax Amount, Executive shall be deemed to (i) pay federal income taxes at
the highest marginal rates of federal income taxation for the calendar year in which the Payment is
to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of
taxation for the calendar year in which the Payment is to be made, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such state and local taxes.
(b) Determinations. Subject to the provisions of this paragraph 4(b), all determinations
required to be made under this paragraph 4, including the Net After-Tax Amount, the Reduction
Amount, and the Payment that is to be reduced pursuant to paragraph 4(a), and the assumptions to be
utilized in arriving at such determinations, shall be made by the Company’s independent registered
public accounting firm (the “Accounting Firm”), which shall provide detailed supporting
calculations both to the Company and Executive within fifteen (15) business days of the receipt of
notice from Executive that there has been a Payment, or such earlier time as is requested by the
Company. The Accounting Firm’s decision as to which Payments are to be reduced shall be made (i)
only from Payments that the Accounting Firm determines reasonably may be characterized as
“parachute payments” under Section 280G of the Code; (ii) first, only from Payments that are
required to be made in cash; (iii) only with respect to any amounts that are not payable pursuant
to a “nonqualified deferred compensation plan” subject to Section 409A of the Code, until those
payments have been reduced to zero; and (iv) in reverse chronological order, to the extent that any
Payments subject to reduction are made over time (e.g., in installments). In no event, however,
shall any Payments be reduced if and to the extent such reduction would cause a violation of
Section 409A of the Code or other applicable law. All fees and expenses of the Accounting Firm
shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding
upon the Company and Executive.
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5. Return of Company Property. All records, designs, patents, business plans, financial
statements, manuals, memoranda, lists, and other property delivered to or compiled by Executive by
or on behalf of the Company (or its subsidiaries) or its representatives, vendors, or customers
that pertain to the business of the Company (or its subsidiaries) shall be and remain the property
of the Company and be subject at all times to its discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials, and other similar data pertaining
to the business, activities, or future plans of the Company (or its subsidiaries) that is collected
by Executive shall be delivered promptly to the Company without request by it upon termination of
Executive’s employment.
6. Inventions. Executive shall disclose promptly to the Company any and all significant
conceptions and ideas for inventions, improvements, and valuable discoveries, whether patentable or
not, which are conceived or made by Executive, solely or jointly with another, during the period of
employment, and which are directly related to the business or activities of the Company (or its
subsidiaries), and which Executive conceives as a result of Executive’s employment by the Company.
Executive hereby assigns and agrees to assign all Executive’s interests therein to the Company or
its nominee. Whenever requested to do so by the Company, Executive shall execute any and all
applications, assignments, and other instruments that the Company shall deem necessary to apply for
and obtain Letters Patent of the United States or any foreign country or to otherwise protect the
Company’s interest therein.
7. Trade Secrets. Executive agrees that Executive will not, during or after the period of
employment under this Agreement, disclose the specific terms of the Company’s relationships or
agreements with its respective significant vendors or customers, or any other significant and
material trade secret of the Company, whether in existence or proposed, to any person, firm,
partnership, corporation, or business for any reason or purpose whatsoever.
8. Indemnification. In the event Executive is made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by the Company against Executive), by reason of the fact that Executive is or
was performing services under this Agreement, then the Company shall indemnify Executive against
all expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement, as
actually and reasonably incurred by Executive in connection therewith to the maximum extent
permitted by applicable law. The advancement of expenses shall be mandatory. In the event that
both Executive and the Company are made a party to the same third-party action, complaint, suit, or
proceeding, the Company agrees to engage competent legal representation, and Executive agrees to
use the same representation, provided that if counsel selected by the Company shall have a conflict
of interest that prevents such counsel from representing Executive, Executive may engage separate
counsel and the Company shall pay all attorneys’ fees of such separate counsel. Further, while
Executive is expected at all times to use Executive’s best efforts to faithfully discharge
Executive’s duties under this Agreement, Executive cannot be held liable to the Company for errors
or omissions made in good faith if Executive has not exhibited gross, willful, and wanton
negligence and misconduct or performed criminal and fraudulent acts that materially damage the
business of the Company. Notwithstanding this paragraph 8, the provision of any written
indemnification agreement applicable to the directors and officers of the Company to which
Executive shall be a party shall apply rather than this paragraph 8 to the extent inconsistent with
this paragraph 8. Without limiting the foregoing, the Company shall continue to maintain coverage for Executive
under any directors’ and officers’ liability insurance policies for a period of six (6) years
following any termination of Executive’s employment by the Company without Good Cause or by
Executive with Good Reason.
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9. No Prior Agreements. Executive hereby represents and warrants to the Company that the
execution of this Agreement by Executive and Executive’s employment by the Company and the
performance of Executive’s duties hereunder will not violate or be a breach of any agreement with a
former employer, client, or any other person or entity. Further, Executive agrees to indemnify the
Company for any claim, including, but not limited to, attorneys’ fees and expenses of
investigation, by any such third party that such third party may now have or may hereafter come to
have against the Company based upon or arising out of any non-competition, invention, or secrecy
agreement between Executive and such third party that was in existence as of the date of this
Agreement.
10. Specified Employee. Notwithstanding any provision of this Agreement to the contrary, if
Executive is a “specified employee” as defined in Section 409A of the Code, Executive shall not be
entitled to any payments or benefits the right to which provides for a “deferral of compensation”
within the meaning of Section 409A of the Code, and whose payment or provision is triggered by
Executive’s termination of employment (whether such payments or benefits are provided to Executive
under this Agreement or under any other plan, program or arrangement of the Company), until (and
any payments or benefits suspended hereby shall be paid in a lump sum on) the earlier of (i) the
date which is the first business day following the six (6) month anniversary of Executive’s
“separation from service” (within the meaning of Section 409A of the Code) for any reason other
than death or (ii) Executive’s date of death, and such payments or benefits that, if not for the
six (6) month delay described herein, would be due and payable prior to such date shall be made or
provided to Executive on such date. The Company shall make the determination as to whether
Executive is a “specified employee” in good faith in accordance with its general procedures adopted
in accordance with Section 409A of the Code and, at the time of Executive’s “separation of service”
will notify Executive whether or not he is a “specified employee.”
11. Savings Clause. This Agreement is intended to satisfy the requirements of Section 409A of
the Code with respect to amounts subject thereto, and shall be interpreted and construed consistent
with such intent; provided that, notwithstanding the other provisions of this paragraph 11 and the
paragraph above entitled, “Specified Employee”, with respect to any right to a payment or benefit
hereunder (or portion thereof) that does not otherwise provide for a “deferral of compensation”
within the meaning of Section 409A of the Code, it is the intent of the parties that such payment
or benefit will not so provide. Any payments due under this Agreement on account of termination of
employment shall be paid only if the termination of employment constitutes a “separation from
service” within the meaning of Section 409A of the Code. No reimbursement payable to Executive
pursuant to any provisions of this Agreement or pursuant to any plan or arrangement of the Company
shall be paid later than the last day of the calendar year following the calendar year in which the
related expense was incurred, and no such reimbursement during any calendar year shall affect the
amounts eligible for reimbursement in any other calendar year, except, in each case, to the extent
that the right to reimbursement does
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not provide for a “deferral of compensation” within the meaning of Section 409A of the Code. Any right to installment payments under this Agreement shall be treated as a right to a series
of separate payments for purposes of Section 409A of the Code. Furthermore, if either party
notifies the other in writing that, based on the advice of legal counsel, one or more of the
provisions of this Agreement contravenes any regulations or Treasury guidance promulgated under
Section 409A of the Code or causes any amounts to be subject to interest or penalties under Section
409A of the Code, the parties shall promptly and reasonably consult with each other (and with their
legal counsel), and shall use their reasonable best efforts, to reform the provisions hereof to (a)
maintain to the maximum extent practicable the original intent of the applicable provisions without
violating the provisions of Section 409A of the Code or increasing the costs to the Company of
providing the applicable benefit or payment and (b) to the extent practicable, to avoid the
imposition of any tax, interest or other penalties under Section 409A of the Code upon Executive or
the Company.
12. Assignment; Binding Effect. Executive understands that Executive is being employed by the
Company on the basis of Executive’s personal qualifications, experience, and skills. Executive
agrees, therefore, Executive cannot assign all or any portion of Executive’s performance under this
Agreement. Subject to the preceding two (2) sentences and the express provisions of paragraph 13
below, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective heirs, legal representatives, successors, and assigns.
13. Complete Agreement. This Agreement is not a promise of future employment. Except as
specifically provided herein, Executive has no oral representations, understandings, or agreements
with the Company or any of its officers, directors, or representatives covering the same subject
matter as this Agreement. This written Agreement is the final, complete, and exclusive statement
and expression of the agreement between the Company and Executive and of all the terms of this
Agreement, and it cannot be varied, contradicted, or supplemented by evidence of any prior or
contemporaneous oral or written agreements. This written Agreement may not be later modified
except by a further writing signed by a duly authorized officer of the Company and Executive, and
no term of this Agreement may be waived except by writing signed by the party waiving the benefit
of such term. This Agreement hereby supersedes any other employment agreements or understandings,
written or oral, between the Company and Executive.
14. Notice. Whenever any notice is required hereunder, it shall be given in writing addressed
as follows:
To the Company:
|
0000 Xxxxx Xxxxxxxxx | |
| Xxxxx Xxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Corporate Secretary | ||
To Executive:
|
0000 Xxxxx Xxxxxxxxx | |
| Xxxxx Xxxxx, Xxxxxxxxxx 00000 |
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In either case with a copy to:
|
Xxxxxxxxx Xxxxxxx, LLP | |
| 0000 Xxxx Xxxxxxxxx Xxxx | ||
| Xxxxx 000 | ||
| Xxxxxxx, Xxxxxxx 00000 | ||
| Attention: Xxxxxx X. Xxxx, Esq. |
Notice shall be deemed given and effective on the earlier of three (3) days after the deposit
in the U.S. mail of a writing addressed as above and sent first class mail, certified, return
receipt requested, or when actually received. Either party may change the address for notice by
notifying the other party of such change in accordance with this paragraph 14.
15. Severability; Headings. If any portion of this Agreement is held invalid or inoperative,
the other portions of this Agreement shall be deemed valid and operative and, so far as is
reasonable and possible, effect shall be given to the intent manifested by the portion held invalid
or inoperative. The paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of this Agreement or of any
part hereof.
16. Mediation Arbitration. All disputes arising out of this Agreement shall be resolved as
set forth in this paragraph 16. If any party hereto desires to make any claim arising out of this
Agreement (“Claimant”), then such party shall first deliver to the other party (“Respondent”)
written notice (“Claim Notice”) of Claimant’s intent to make such claim explaining Claimant’s
reasons for such claim in sufficient detail for Respondent to respond. Respondent shall have ten
(10) business days from the date the Claim Notice was given to Respondent to object in writing to
the claim (“Notice of Objection”), or otherwise cure any breach hereof alleged in the Claim Notice.
Any Notice of Objection shall specify with particularity the reasons for such objection.
Following receipt of the Notice of Objection, if any, Claimant and Respondent shall immediately
seek to resolve by good faith negotiations the dispute alleged in the Claim Notice, and may at the
request of either party, utilize the services of an independent mediator. If Claimant and
Respondent are unable to resolve the dispute in writing within ten (10) business days from the date
negotiations began, then without the necessity of further agreement of Claimant or Respondent, the
dispute set forth in the Claim Notice shall be submitted to binding arbitration (except for claims
arising out of paragraph 6 hereof), initiated by either Claimant or Respondent pursuant to this
paragraph 16. Such arbitration shall be conducted before a panel of three (3) arbitrators in San
Jose, California, in accordance with the Employment Arbitration Rules and Mediation Procedures of
the American Arbitration Association (“AAA”) then in effect provided that the parties may agree to
use arbitrators other than those provided by the AAA. The arbitrators shall not have the authority
to add to, detract from, or modify any provision hereof. The arbitrators shall have the authority
to order all remedies otherwise available in a civil court, including, without limitation,
back-pay, severance compensation, vesting of options (or cash compensation in lieu of vesting of
options), reimbursement of costs, including those incurred to enforce this Agreement, and interest
thereon in the event the arbitrators determine that Executive was terminated without Good Cause, as
defined herein, or that the Company has otherwise materially breached this Agreement. A decision
by a majority of the arbitration panel shall be final and binding. The arbitration shall be
conducted consistent with all applicable law, and the arbitration award shall be in writing, in a
form capable of review if required by applicable law. Judgment may be entered on the arbitrators’ award in any court having jurisdiction. The direct expense of any mediation or
arbitration proceeding and, to the extent Executive prevails, all reasonable legal fees shall be
borne by the Company.
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17. No Participation in Severance Plans. Except as contemplated by this Agreement or any
other agreement or policy specifically made applicable to Executive, Executive acknowledges and
agrees that the compensation and other benefits set forth in this Agreement are and shall be in
lieu of any compensation or other benefits that may otherwise be payable to or on behalf of
Executive arising from a Change of Control during the Change of Control Period pursuant to the
terms of any severance pay arrangement of the Company or any affiliate thereof, or any other
similar arrangement of the Company or any affiliates thereof providing for benefits upon
termination of employment.
18. Governing Law. This Agreement shall in all respects be construed according to the laws of
the state of California, notwithstanding the conflict of laws provisions of such state.
19. Counterparts; Facsimile. This Agreement may be executed by facsimile and in two (2) or
more counterparts, each of which shall be deemed an original and all of which together shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| SYNAPTICS INCORPORATED | ||||||
| By: | /s/ Xxxxxxx X. Xxx | |||||
| Name: | Xxxxxxx X. Xxx
|
|||||
| Title: |
Chairman of the Board
|
|||||
| EXECUTIVE: | ||||||
| /s/ Xxxxxxx Xxxxxxx | ||||||
| Xxxxxxx Xxxxxxx | ||||||
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