EXHIBIT 1
5,750,000 Shares of Common Stock
SYNAPTICS INCORPORATED
UNDERWRITING AGREEMENT
___________, 2002
BEAR, XXXXXXX & CO. INC.
XX XXXXX SECURITIES CORPORATION
SOUNDVIEW TECHNOLOGY GROUP
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
Synaptics Incorporated, a corporation organized and existing under the
laws of the State of Delaware (the "Company"), proposes, subject to the terms
and conditions stated herein, to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 5,000,000 shares
(the "Firm Shares") of its common stock, par value $0.001 per share (the "Common
Stock"). The stockholders of the Company named in Schedule II (collectively, the
"Selling Stockholders") severally propose, subject to the terms and conditions
stated herein, to issue and sell to the Underwriters, for the sole purpose of
covering over-allotments in connection with the sale of the Firm Shares, at the
option of the Underwriters, up to an additional 750,000 shares (the "Additional
Shares") of Common Stock, each Selling Stockholder selling the amount of Common
Stock set forth next to such Selling Stockholder's name on Schedule II. The Firm
Shares and any Additional Shares purchased by the Underwriters are referred to
herein as the "Shares". The Shares are more fully described in the Registration
Statement referred to below.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-1 (No.
333-56026), and amendments thereto, and related preliminary prospectuses for the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of shares of Common Stock, which
registration statement, as so amended, has been declared effective by the
Commission and copies of which have heretofore been delivered to the
Underwriters. The registration statement, as amended at the time it became
effective, including the exhibits and information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act, is hereinafter referred to as the "Registration
Statement." If the Company has filed or is required pursuant to the terms hereof
to file a registration statement pursuant to Rule 462(b) under the Securities
Act registering additional shares of Common Stock (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which
became effective upon filing, no other document with respect to the Registration
Statement has heretofore been filed with the Commission. No stop order
suspending the effectiveness of either the Registration Statement or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or, to the Company's knowledge, threatened by
the Commission. The Company, if required by the rules and regulations of the
Commission (the "Rules and Regulations"), proposes to file the Prospectus with
the Commission pursuant to Rule 424(b) of the Rules and Regulations. The
Prospectus, in the form in which it is to be filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations, or, if the Prospectus is not to be
filed with the Commission pursuant to Rule 424(b), the Prospectus in the form
included as part of the Registration Statement at the time the Registration
Statement became effective, is hereinafter referred to as the "Prospectus,"
except that if any revised prospectus or prospectus supplement shall be provided
to the Underwriters by the Company for use in connection with the offering and
sale of the Shares (the "Offering") which differs from the Prospectus (whether
or not such revised prospectus or prospectus supplement is required to be filed
by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus supplement, as
the case may be, from and after the time it is first provided to the
Underwriters for such use; and, provided, further, that the term "Prospectus"
shall be deemed to include any wrapper or supplement thereto prepared in
connection with the distribution of any Directed Shares (as defined in Section
3(b) below). Any preliminary prospectus or prospectus subject to completion
included in the Registration Statement or filed with the Commission pursuant to
Rule 424 under the Securities Act is hereafter called a "Preliminary
Prospectus." All references in this Agreement to the Registration Statement, the
Rule 462(b) Registration Statement, a Preliminary Prospectus and the Prospectus,
or any amendments or supplements to any of the foregoing, shall be deemed to
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System ("XXXXX").
(ii) At the time of the effectiveness of the
Registration Statement or the effectiveness of any post-effective amendment to
the Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission and at
the Closing Date and the Additional Closing Date, if any (as hereinafter
respectively defined), the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto complied or will comply in all
material respects with the applicable provisions of the Securities Act and the
Rules and Regulations and did not and will not contain an untrue statement of a
material fact and did not and will not omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (i)
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in the case of the Registration Statement, not misleading and (ii) in the case
of the Prospectus or any related Preliminary Prospectus in light of the
circumstances under which they were made, not misleading. When any related
preliminary prospectus was first filed with the Commission (whether filed as
part of the registration statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the Rules and Regulations) and
when any amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus and any amendments thereof and
supplements thereto complied in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations and did not
contain an untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No representation and warranty is made in this subsection (ii),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related Preliminary Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through you specifically for use therein ("Underwriters'
Information"). The parties acknowledge and agree that the Underwriters'
Information consists solely of the material included in the first and third
paragraphs under the caption "Underwriting" in the Prospectus. If Rule 434 is
used, the Company will comply with the requirements of Rule 434.
(iii) Ernst & Young LLP, who have audited the
consolidated financial statements and supporting schedules of the Company
included in the Registration Statement, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has been no
material adverse change or any development involving a prospective material
adverse change in the business, prospects, properties (including all
intellectual property), operations, condition (financial or other) or results of
operations of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, and since the date
of the latest balance sheet presented in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has incurred or
undertaken any liabilities or obligations, direct or contingent, which are
material to the Company and its subsidiaries taken as a whole, except for
liabilities or obligations which are reflected in the Registration Statement and
the Prospectus.
(v) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Company and this Agreement
has been duly and validly executed and delivered by the Company.
(vi) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (A) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any indenture, mortgage,
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deed of trust, loan agreement or other agreement, instrument, franchise, license
or permit to which the Company or any of its subsidiaries is a party or by which
the Company or any of it subsidiaries or their respective properties or assets
may be bound or (B) violate or conflict with any provision of the certificate of
incorporation or by-laws of the Company or any of its subsidiaries or any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or assets. No
consent, approval, authorization, order, registration, filing, qualification,
license or permit of or with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any of its subsidiaries
or any of their respective properties or assets is required for the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby or by the Registration Statement and the
Prospectus, including the issuance, sale and delivery of the Shares to be
issued, sold and delivered by the Company hereunder, except the registration
under the Securities Act of the offering and sale of the Shares and such
consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws or the by-laws and rules of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the purchase and
distribution of the Shares by the Underwriters.
(vii) The Company has the authorized capitalization
set forth in the Prospectus and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and were not issued in violation of any preemptive or similar
rights that entitle or will entitle any person to acquire any Shares from the
Company upon issuance thereof by the Company, except for such rights as may have
been fully satisfied or waived prior to the effectiveness of the Registration
Statement; the Shares to be delivered on the Closing Date and the Additional
Closing Date, if any, (as hereinafter respectively defined) have been duly and
validly authorized and, when delivered by the Company in accordance with this
Agreement, will be duly and validly issued, fully paid and non-assessable and
will not have been issued in violation of any preemptive or similar rights that
entitle or will entitle any person to acquire any Shares from the Company upon
issuance thereof by the Company; and all of the issued shares of capital stock
of each subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims; the Common Stock conforms
to the description thereof contained in the Registration Statement and the
Prospectus.
(viii) Each of the Company and its subsidiaries has
been duly organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or conduct of its
business makes such qualification necessary, except for those failures to be so
qualified or in good standing which would not in the aggregate have a material
adverse effect on the condition (financial or otherwise), results of operations,
business, properties (including all intellectual property) or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse Effect").
Each of the Company and its subsidiaries has the requisite power and authority,
and all necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses and
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permits of and from all public, regulatory or governmental agencies and bodies,
to own, lease and operate its properties and conduct its business as it is now
being conducted and as described in the Registration Statement and the
Prospectus, and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome restriction
not adequately disclosed in the Registration Statement and the Prospectus.
(ix) Except as described in the Prospectus, there is
no legal or governmental proceeding to which the Company or any of its
subsidiaries is a party, or of which any property of the Company or any of its
subsidiaries is the subject which, singularly or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, are reasonably likely to
have a Material Adverse Effect, and to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened or contemplated by others.
(x) Neither the Company nor any of its affiliates
have taken or will take, directly or indirectly, any action designed to cause or
result in, or which constitutes or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the Shares.
(xi) The financial statements, including the notes
thereto, and supporting schedules of the Company included in the Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated and
condition and results of operations for the periods specified; except as
otherwise stated in the Registration Statement, said financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(xii) Except as disclosed in the Prospectus, no
holder of securities of the Company has any rights to the registration of
securities of the Company because of the filing of the Registration Statement or
otherwise in connection with the sale of the Shares contemplated hereby. Any
such rights so disclosed have either been fully complied with by the Company or
effectively waived by the holders thereof.
(xiii) The Company is not, and upon consummation of
the transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940.
(xiv) The Company and its subsidiaries have good and
marketable title to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Registration
statement and the Prospectus or such as do not materially affect the value of
such property owned by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as do
not have a Material Adverse Effect and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries.
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(xv) The Company and each of its subsidiaries have
accurately prepared and filed all federal, state and other tax returns that are
required to be filed by it and has paid or made provision for the payment of all
taxes, assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company and each of
its subsidiaries is obligated to withhold from amounts owning to employees,
creditors and third parties, with respect to the periods covered by such tax
returns (whether or not such amounts are shown as due on any tax return) where
the failure to file or pay could have a Material Adverse Effect. No deficiency
assessment with respect to a proposed adjustment of the Company's or any of it's
subsidiaries' Federal, state, or other taxes is pending or, to the Company's
knowledge, threatened which would have a Material Adverse Effect. There is no
tax lien, whether imposed by any federal, state, or other taxing authority,
outstanding against the assets, properties or business of the Company or any of
its subsidiaries.
(xvi) The Shares are registered pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the Shares are approved for quotation on The Nasdaq Stock Market's National
Market (the "Nasdaq National Market") , subject only to official notice of
issuance, and the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Shares under the Exchange Act or
de-listing the Shares from the Nasdaq National Market, nor has the Company
received any notification that the SEC or the Nasdaq National Market is
contemplating terminating such registration or listing.
(xvii) There are no contracts or other documents
which are required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations and
which have not been so described or filed.
(xviii) Neither the Company nor any of its
subsidiaries (A) is in violation of its charter or by-laws or any similar
organizational document, (B) is in default (and no event has occurred which,
with notice or lapse of time or both, would constitute such a default) under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
property or assets is subject or (C) is in violation in any respect of any
statute or any judgment, decree, order, rule or regulation of any court or
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties or assets, all except as
such would not have a Material Adverse Effect.
(xix) The Company and each of its subsidiaries own or
possess adequate right to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx registrations,
copyrights, licenses, formulae, customer lists, and know-how and other
intellectual property (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses as being conducted and
as described in the Registration Statement and Prospectus and have no reason to
believe that the conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with, any such right of
others. To the best of the Company's knowledge, all material technical
information
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developed by and belonging to the Company which has not been patented has been
kept confidential. Except as the Company's outsourcing practices are described
in the Registration Statement and the Prospectus, neither the Company nor any of
its subsidiaries has granted or assigned to any other person or entity any right
to manufacture, have manufactured, assemble or sell the current products and
services of the Company or those products and services described in the
Registration Statement and Prospectus.
(xx) No labor disturbance by the employees of the
Company or any of its subsidiaries exists or, to the best of the Company's
knowledge, is imminent which might be expected to have a Material Adverse
Effect.
(xxi) No "prohibited transaction" (as defined in
Section 406 of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code"), or "accumulated funding deficiency" (as defined in Section 302 of
ERISA) or any of the events set forth in Section 4043(b) of ERISA (other than
events with respect to which the 30-day notice requirement under Section 4043 of
ERISA has been waived) has occurred with respect to any employee benefit plan
which could have a Material Adverse Effect; each employee benefit plan is in
compliance in all material respects with applicable law, including ERISA and the
Code; the Company has not incurred and does not expect to incur liability under
Title IV of ERISA with respect to the termination of, or withdrawal from, any
"pension plan"; and each "pension plan" (as defined in ERISA) for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which could cause the loss of
such qualification.
(xxii) There has been no storage, generation,
transportation, handling, treatment, disposal, discharge, emission, or other
release of any kind of toxic or other wastes or other hazardous substances by,
due to, or caused by the Company (or, to the Company's knowledge, any other
entity for whose acts or omissions the Company is or may be liable) upon any
property now or previously owned or leased by the Company or any of its
subsidiaries, or upon any other property, in violation of any statute or any
ordinance, rule, regulation, order, judgement, decree or permit or which would,
under any statute or any ordinance, rule (including rule of common law),
regulation, order, judgement, decree or permit, give rise to any liability,
except for any violation or liability which would not have, singularly or in the
aggregate with all such violations and liabilities, a Material Adverse Effect;
there has been no disposal, discharge, emission or other release of any kind
onto such property or into the environment surrounding such property of any
toxic or other wastes or other hazardous substances with respect to which the
Company or any of its subsidiaries has knowledge, except for any such disposal,
discharge, emission, or other release of any kind which would not have,
singularly or in the aggregate with all such discharges and other releases, a
Material Adverse Effect.
(xxiii) The statistical and market-related data
included in the Prospectus are based on or derived from sources which the
Company believes to be reliable and accurate.
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(b) Each of the Selling Stockholders severally and not jointly
represents and warrants to, and agrees with, each of the Underwriters that:
(i) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Selling Stockholders, and
this Agreement has been duly and validly executed and delivered by the Selling
Stockholders.
(ii) Each of the (A) Custody Agreement signed by such
Selling Stockholder and American Stock Transfer & Trust Company, as custodian
(the "Custodian"), relating to the deposit of the Additional Shares to be sold
by such Selling Stockholder (the "Custody Agreement") and (B) Irrevocable Power
of Attorney appointing certain individuals named therein as such Selling
Stockholder's attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set
forth therein relating to the transactions contemplated hereby and by the
Prospectus (the "Power of Attorney"), of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors generally or by general equitable
principles. Each Selling Stockholder agrees that the Additional Shares to be
sold by such Selling Stockholder on deposit with the Custodian are subject to
the interests of the Underwriters, that the arrangements made for such custody
are to that extent irrevocable, and that the obligations of such Selling
Stockholder hereunder shall not be terminated, except as provided in this
Agreement or in the Custody Agreement, by any act of the Selling Stockholder, by
operation of law, by death or incapacity of such Selling Stockholder or by the
occurrence of any other event. If such Selling Stockholder should die or become
incapacitated, or if any other event should occur, before the delivery of the
Additional Shares to be sold by such Selling Stockholder hereunder, the
documents evidencing the Additional Shares to be sold by such Selling
Stockholder then on deposit with the Custodian shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death, incapacity or other event had not occurred, regardless of whether or
not the Custodian shall have received notice thereof.
(iii) Such Selling Stockholder is the lawful owner of
the Additional Shares to be sold by such Selling Stockholder hereunder and upon
sale and delivery of, and payment for, such Additional Shares, as provided
herein, such Selling Stockholder will convey good and marketable title to such
Additional Shares, free and clear of all liens, encumbrances, equities and
claims whatsoever.
(iv) Such Selling Stockholder has, and on the Closing
Date and the Additional Closing Date (as defined below) will have, good and
valid title to all of the Additional Shares which may be sold by such Selling
Stockholder pursuant to this Agreement on such date and the legal right and
power, and all authorizations and approvals required by law and, as applicable,
under its charter or by-laws, partnership agreement or other organizational
documents to enter into this Agreement and its Custody Agreement and Power of
Attorney, to sell, transfer and deliver all of the Additional Shares which may
be sold by such Selling Stockholder pursuant to this Agreement and to comply
with its other obligations hereunder and thereunder.
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(v) No consent, approval, authorization or order of
any court or governmental agency or body is required for the consummation by
such Selling Stockholder of the transactions contemplated herein, except such as
have been obtained under the Securities Act or the Rules and Regulations or as
may be required under state securities or Blue Sky laws or the by-laws and rules
of the NASD in connection with the purchase and distribution of the Additional
Shares by the Underwriters.
(vi) Neither the sale of the Additional Shares being
sold by such Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by such Selling Stockholder or the fulfillment
of the terms hereof by such Selling Stockholder will conflict with, result in a
breach or violation of, or constitute a default under any law or the terms of
any contract, agreement or instrument to which such Selling Stockholder is party
or bound, any judgment, order or decree applicable to such Selling Stockholder
or any court or regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder.
(vii) Such Selling Stockholder does not have any
registration or other similar rights to have any equity or debt securities
registered for sale by the Company under the Registration Statement or included
in the offering contemplated by this Agreement, except for such rights as are
described in the Prospectus or except as have been validly waived.
(viii) Such Selling Stockholder does not have, or has
waived prior to the date hereof, any preemptive right, co-sale right or right of
first refusal or other similar right to purchase any of the Shares that are to
be sold by the Company or any of the Additional Shares that are to be sold by
any of the Selling Stockholders to the Underwriters pursuant to this Agreement;
and such Selling Stockholder does not own any warrants, options or similar
rights to acquire, and does not have any right or arrangement to acquire, any
capital stock, right, warrants, options or other securities from the Company,
other than those described in the Registration Statement and the Prospectus.
(ix) All information furnished by or on behalf of
such Selling Stockholder in writing expressly for use in the Registration
Statement and Prospectus is, and on the Closing Date and the Additional Closing
Date (as defined below) will be, true, correct, and complete in all material
respects, and does not, and on the Closing Date and the Additional Closing Date
will not, contain any untrue statement of a material fact or omit to state any
material fact necessary to make such information, in light of the circumstances
under which they were made, not misleading. Such Selling Stockholder confirms as
accurate the number of shares of Common Stock set forth opposite such Selling
Stockholder's name in the Prospectus under the caption "Principal and Selling
Stockholders" (both prior to and after giving effect to the sale of the Shares).
(x) Such Selling Stockholder has not taken and will
not take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the Additional
Shares.
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(xi) There are no transfer taxes or other similar
fees or charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution and
delivery of this Agreement or the sale by the Selling Stockholders of the
Additional Shares.
(xii) The Selling Stockholders have not distributed
and will not distribute, prior to the later of the Additional Closing Date (as
defined below) and the completion of the Underwriters' distribution of the
Additional Shares, any offering material in connection with the offering and
sale of the Additional Shares by such Selling Stockholder other than preliminary
prospectuses, the Prospectus or the Registration Statement.
(xiii) Such Selling Stockholder has no reason to
believe that the representations and warranties of the Company contained in
Section 1(a) hereof are not true and correct, is familiar with the Registration
Statement and the Prospectus and has no knowledge of any material fact,
condition or information not disclosed in the Registration Statement or the
Prospectus which has had or may result in a Material Adverse Effect, whether or
not arising from transactions in the ordinary course of business of the Company
and its subsidiaries, considered as one entity, and is not prompted to sell the
Additional Shares to be sold by such Selling Stockholder by any information
concerning the Company which is not set forth in the Registration Statement and
the Prospectus.
(xiv) Any certificate signed by or on behalf of any
Selling Stockholder and delivered to the Underwriters or to counsel for the
Underwriters shall be deemed to be a representation and warranty by such Selling
Stockholder to each Underwriter as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $_______, the number of Firm Shares set forth opposite the
respective names of the Underwriters on Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Firm Shares shall be made at the office of Xxxxxxx,
Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxx Xxxx, Xxxx Xxxx, XX 00000 ("Underwriters'
Counsel"), or at such other place as shall be agreed upon by you and the
Company, at 10:00 A.M., New York City time, on the third or fourth business day
(as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in
accordance with the provisions of Section 9 hereof) following the date of the
effectiveness of the Registration Statement, (or, if the Company has elected to
rely upon Rule 430A of the Regulations, the third or fourth business day (as
permitted under Rule 15c6-1 under the Exchange Act) or such other time not later
than ten business days after such date as shall be agreed upon by you and the
Company)(such time and date of payment and delivery being herein called the
"Closing Date").
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Payment for the Firm Shares shall be made to or upon the order of the
Company of the purchase price by wire transfer in Federal (same day) funds to
the Company upon delivery of certificates for the Firm Shares to you for the
respective accounts of the several Underwriters against receipt therefor signed
by you. Certificates for the Firm Shares to be delivered to you shall be
registered in such name or names and shall be in such denominations as you may
request at least one business day before the Closing Date. The Company will
permit you to examine and package such certificates for delivery at least one
full business day prior to the Closing Date.
(c) In addition, on the basis of the representations,
warranties, covenants and agreements herein contained, but subject to the terms
and conditions herein set forth, the Selling Stockholders hereby grant to the
Underwriters the option to purchase up to 750,000 Additional Shares at the same
purchase price per share to be paid by the Underwriters to the Company for the
Firm Shares as set forth in this Section 2, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time and from time to time, in whole or in part, on or
before the thirtieth day following the date of the Prospectus, by written notice
by you to the Selling Stockholders. Such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised and the
date and time, as reasonably determined by you, when the Additional Shares are
to be delivered (such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that the Additional Closing Date
shall not be earlier than the Closing Date or earlier than the second full
business day after the date on which the option shall have been exercised nor
later than the eighth full business day after the date on which the option shall
have been exercised (unless such time and date are postponed in accordance with
the provisions of Section 9 hereof). Certificates for the Additional Shares
shall be registered in such name or names and in such authorized denominations
as you may request in writing at least two full business days prior to the
Additional Closing Date. The Selling Stockholders will permit you to examine and
package such certificates for delivery at least one full business day prior to
the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter shall be
the number which bears the same ratio to the aggregate number of Additional
Shares being purchased as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto (or such number increased as set forth
in Section 9 hereof) bears to the total number of Firm Shares being purchased
from the Company, subject, however, to such adjustments to eliminate any
fractional shares as Bear Xxxxxxx & Co. Inc. in its sole discretion shall make.
Payment for the Additional Shares shall be made to or upon the order of
the Custodian of the purchase price by wire transfer in Federal (same day) funds
to the Custodian at the offices of Underwriters' Counsel, or such other location
as may be mutually acceptable, upon delivery of the certificates for the
Additional Shares to you for the respective accounts of the Underwriters.
Each Selling Stockholder hereby agrees that (i) it will pay all stock
transfer taxes, stamp duties and other similar taxes, if any, payable upon the
sale or delivery of the Additional Shares to be sold by such Selling Stockholder
to the several Underwriters, or otherwise in connection with the performance of
such Selling Stockholder's obligations hereunder; and
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(ii) the Custodian is authorized to deduct for such payment any such amounts
from the proceeds to such Selling Stockholder hereunder and to hold such amounts
for the account of such Selling Stockholder with the Custodian under the Custody
Agreement.
3. Offering.
(a) Upon the Underwriters' authorization of the release of the
Firm Shares, the Underwriters propose to offer the Shares for sale to the public
upon the terms and conditions set forth in the Prospectus.
(b) The Company and the Underwriters hereby agree that up to
5% of the Firm Shares to be purchased by the Underwriters (the "Directed
Shares") shall be reserved for sale by the Underwriters to certain eligible
employees, directors and certain persons designated by the Company (the
"Directed Shares Purchasers"), as part of the distribution of the Shares by the
Underwriters subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc., and all other applicable laws, rules and regulations. To the
extent that such Directed Shares are not orally confirmed for purchase by such
persons by the end of the first day after the date of this Agreement, such
Directed Shares will be offered to the public as part of the offering
contemplated hereby. Under no circumstances will Bear, Xxxxxxx & Co. Inc. or any
other Underwriter be liable to the Company or to any of the Directed Shares
Purchasers for any action taken or omitted to be taken other than any such
action or inaction resulting from the bad faith or willful misconduct of any
Underwriter in connection with the transactions effected with regard to the
Directed Shares Purchasers.
4. Covenants of the Company and the Selling Stockholders.
(a) The Company covenants and agrees with the Underwriters
that:
(i) If the Registration Statement has not yet been
declared effective the Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective as
promptly as possible, and if Rule 430A is used or the filing of the Prospectus
is otherwise required under Rule 424(b) or Rule 434, the Company will file the
Prospectus (properly completed if Rule 430A has been used) pursuant to Rule
424(b) within the prescribed time period and will provide evidence satisfactory
to you of such timely filing. If the Company elects to rely on Rule 434, the
Company will prepare and file a term sheet that complies with the requirements
of Rule 434.
The Company will notify you (and, if requested by
you, will confirm such notice in writing) (A) when the Registration Statement
and any amendments thereto become effective, (B) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (C) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, (D) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or of the initiation, or the threatening,
of any proceedings therefor, (E) of the receipt of any comments from the
Commission, and (F) of the receipt by the Company of any
12
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for that purpose. If the Commission shall propose or enter a stop order at any
time, the Company will make every reasonable effort to prevent the issuance of
any such stop order and, if issued, to obtain the lifting of such order as soon
as possible. The Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the Prospectus (including the
prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that
differs from the prospectus on file at the time of the effectiveness of the
Registration Statement before or after the effective date of the Registration
Statement to which you shall reasonably object in writing after being timely
furnished in advance a copy thereof.
(ii) If at any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company, include an 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, in light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend or supplement the Prospectus or Registration
Statement to comply with the Securities Act or the Rules and Regulations, the
Company will notify you promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to you)
which will correct such statement or omission and will use its best efforts to
have any amendment to the Registration Statement declared effective as soon as
possible.
(iii) The Company will promptly deliver to each of
the Underwriters and Underwriters' Counsel a signed copy of the Registration
Statement, including all consents and exhibits filed therewith and all
amendments thereto, and the Company will promptly deliver to each of the
Underwriters such number of copies of any preliminary prospectus, the
Prospectus, the Registration Statement, and all amendments of and supplements to
such documents, if any, as you may reasonably request. Prior to 10:00 A.M., New
York time, on the business day next succeeding the date of this Agreement and
from time to time thereafter the Company will furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as you may
reasonably request.
(iv) The Company will endeavor in good faith, in
cooperation with you, at or prior to the time of effectiveness of the
Registration Statement, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions as you may designate and to maintain such qualification in effect
for so long as required for the distribution thereof; except that in no event
shall the Company be obligated in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process.
(v) The Company will make generally available to its
security holders and to the Underwriters as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
13
(vi) During the period of 180 days from the date of
the Prospectus, the Company will not, directly or indirectly, without your prior
written consent, issue, sell, offer or agree to sell, grant any option for the
sale of, pledge, make any short sale or maintain any short position, establish
or maintain a "put equivalent position" (within the meaning of Rule 16-a-1(h)
under the Exchange Act), enter into any swap, derivative transaction 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 is
to be settled by delivery of Common Stock, other securities, cash or other
consideration) or otherwise dispose of, any Common Stock (or any securities
convertible into, exercisable for or exchangeable for Common Stock) or interest
therein of the Company or of any of its subsidiaries, and the Company will
obtain the undertaking of each of its officers and directors and such of its
shareholders as have been heretofore designated by you and listed on Schedule
III attached hereto not to engage in any of the aforementioned transactions on
their own behalf, other than the Company's sale of Shares hereunder and the
Company's issuance of Common Stock upon (A) the conversion or exchange of
outstanding convertible or exchangeable securities; (B) the exercise of
presently outstanding options; (C) the exercise of currently outstanding
warrants; and (D) the grant and exercise of options under, or the issuance and
sale of shares pursuant to, employee stock option plans or stock purchase plans
in effect on the Closing Date and described in the Prospectus. The Company
further represents and warrants that it will not release any of its officers,
directors and shareholders listed on Schedule III from the aforementioned
undertaking without the prior written consent of the Underwriters.
(vii) During the period of five years from the
effective date of the Registration Statement, to furnish to you copies of all
reports or other communications (financial or other) furnished to security
holders, and to deliver to you (A) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange on which any class of securities of the Company
listed; and (B) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in reports
furnished to its security holders generally or to the Commission).
(viii) The Company will apply the proceeds from the
sale of the Firm Shares as set forth under "Use of Proceeds" in the Prospectus.
(ix) The Company will use its best efforts to list
for quotation the Shares on the Nasdaq National Market.
(b) Each of the Selling Stockholders covenants and agrees with
the Underwriters that:
(i) Such Selling Stockholder will not, during the
Lock-Up Period (as defined in the Lock-Up Agreement attached hereto as Annex
IV), make a disposition of shares now owned or hereafter acquired directly by
such person or with respect to which such person has or hereafter acquires the
power of disposition. The foregoing restriction has been expressly agreed to
preclude the holder of the Additional Shares from engaging in any hedging or
other transaction which is designed to or reasonably expected to lead to or
result in a
14
disposition of Securities during the Lock-Up Period, even if such Securities
would be disposed of by someone other than such holder. Such prohibited hedging
or other transactions would include, without limitation, any short sale or any
purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to any Securities or with respect to any security that
includes, relates to or derives any significant part of its value from
Securities.
(ii) To deliver to the Underwriters prior to the
Closing Date a properly completed and executed United States Treasury Department
Form W-8 (if the Selling Stockholder is a non-United States person) or Form W-9
(if the Selling Stockholder is a United States Person).
(iii) If, at any time prior to the date on which the
distribution of the Shares as contemplated herein and in the Prospectus has been
completed, as determined by the Underwriters, such Selling Stockholder has
knowledge of the occurrence of any event as a result of which the Prospectus or
the Registration Statement, in each case as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, such Selling Stockholder will
promptly notify the Company and the Underwriters.
5. Payment of Expenses.
(a) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay all costs and expenses incident to the performance of its obligations
hereunder, including the following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Securities Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of producing any Agreement among Underwriters, this Agreement, the Blue
Sky Memoranda, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
4(a)(iv) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the Nasdaq National Market; (v) all travel expenses of the Company's
officers and employees and any other expense of the Company incurred in
connection with attending or hosting meetings with prospective purchasers of the
Shares; (vi) the filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, securing any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Shares; and (vii) any amount that any Selling Stockholder fails to timely
pay pursuant to Section 5(b). The Company also will pay or cause to be paid: (i)
the cost of preparing stock certificates; (ii) the cost and charges of any
transfer agent or registrar; and (iii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 5. It is understood, however, that
except as provided in this Section, and Sections 7 and 11 hereof, the
Underwriters will pay all of their own costs and
15
expenses, including the fees of their counsel, stock transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
(b) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, each Selling
Stockholder, severally and not jointly, agrees to pay its pro rata share (based
on the percentage which the number of Additional Shares sold by such Selling
Stockholder bears to the total number of Additional Shares sold) of the costs
and expenses incident to the performance of its obligations hereunder, including
the following: (i) the fees, disbursements and expenses of counsel and other
advisors for the Selling Stockholders; (ii) the fees and expenses of the
Custodian; (iii) the expenses and taxes incident to the sale and delivery of the
Additional Shares to be sold by the Selling Stockholders to the Underwriters
hereunder (which taxes, if any, may be deducted by the Custodian pursuant to
Section 2(c) of this Agreement); and (iv) all underwriting discounts and
commissions applicable to the Additional Shares.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Selling Stockholders herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 6
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Underwriters' Counsel pursuant to this Section 6 of any
misstatement or omission, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York time, on the date of this Agreement, or at such
later time and date as shall have been consented to by you; if the Company shall
have elected to rely upon Rule 430A or Rule 434 of the Rules and Regulations,
the Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 4(a)(i) hereof; and, at or prior to the Closing Date no
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof shall have been issued and no proceedings
therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date, you shall have received the written
opinion of Xxxxxxxxx Xxxxxxx, LLP, counsel for the Company, dated the Closing
Date addressed to the Underwriters in the form attached hereto as Annex I.
(c) As of the Closing Date, you shall have received the
opinions of Beresford and Co. and Sierra Law Group, intellectual property
counsel for the Company, dated as of the Closing Date addressed to the
Underwriters in the form attached hereto as Annex II.
(d) As of the Closing Date, you shall have received the
opinion of __________, counsel for Synaptics (UK) Limited, dated as of the
Closing Date addressed to the Underwriters in the form attached hereto as Annex
V.
16
(e) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a favorable opinion,
dated as of the Closing Date, with respect to the issuance and sale of the
Shares, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(f) At the Closing Date, you shall have received a certificate
of the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date to the effect that (i) the condition set forth in subsection
(a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of
the Closing Date, the representations and warranties of the Company set forth in
Section 1 hereof are accurate, (iii) as of the Closing Date, the obligations of
the Company to be performed hereunder on or prior thereto have been duly
performed and (iv) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Company and its
subsidiaries have not sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, and there has not been any material
adverse change, or any development involving a material adverse change, in the
business prospects, properties, operations, condition (financial or otherwise),
or results of operations of the Company and its subsidiaries taken as a whole,
except in each case as described in or contemplated by the Prospectus.
(g) At the Closing Date, you shall have received a certificate
of the Selling Stockholders or officers of the Selling Stockholders (if the
Selling Stockholder is not a natural person) to the effect that (i) as of the
date hereof and as of the Closing Date, the representations and warranties of
the Selling Stockholders set forth in Section 1 hereof are accurate, and (ii) as
of the Closing Date, the obligations of the Selling Stockholders to be performed
hereunder on or prior thereto have been duly performed.
(h) At the Closing Date, you shall have received an opinion of
______________________, counsel for the Selling Stockholders in the form
attached hereto as Annex III. In rendering such opinion, such counsel may rely
as to questions of law not involving the laws of the United States or State of
California and State of Delaware upon opinions of local counsel and as to
questions of fact upon representations or certificates of the Selling
Stockholders or officers of the Selling Stockholders (when the Selling
Stockholder is not a natural person), and of governmental officials, in which
case their opinion is to state that they are so relying and that they have no
knowledge of any material misstatement or inaccuracy of any material
misstatement or inaccuracy in any such opinion, representation or certificate so
relied upon shall be delivered to you and to Underwriters' Counsel.
(i) At least three business days prior to the date hereof, the
Selling Stockholders shall have furnished for review by the Underwriters copies
of the Powers of Attorney and Custody Agreements executed by each of the Selling
Stockholders and such further information, certificates and documents as the
Underwriters may reasonably request.
17
(j) At the time this Agreement is executed and at the Closing
Date, you shall have received a comfort letter, from Ernst & Young LLP,
independent auditors for the Company, dated, respectively, as of the date of
this Agreement and as of the Closing Date addressed to the Underwriters and in
form and substance satisfactory to the Underwriters and Underwriters' Counsel.
(k) You shall have also received from the Company a letter
from Ernst & Young LLP addressed to the Company, dated July 25, 2001, stating
that the Company's internal controls taken as a whole is sufficient to meet the
broad objectives of internal control insofar as those objectives pertain to the
prevention or detection of material fraud or errors in amounts that would be
material in relation to the financial statements of the Company and its
subsidiaries, which letter shall not have been withdrawn, modified, or
contradicted or the correctness or the validly of which shall not have been
called into question.
(l) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business, properties (including
all intellectual property) or prospects of the Company and its subsidiaries
taken as a whole, the effect of which, in any such case described above, is, in
the judgment of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Prospectus
(exclusive of any supplement).
(m) You shall have also received a lock-up agreement (the
"Lock-Up Agreement") from each person who is a director or officer of the
Company, each Selling Stockholder and each shareholder listed on Schedule III
hereto substantially in the form attached hereto as Annex IV.
(n) At the Closing Date, the Shares shall have been approved
for quotation on the Nasdaq National Market.
(o) The Company shall have complied with the provisions of
Section 4(a)(iii) hereof with respect to the furnishing of prospectuses on the
next business day succeeding the date of this Agreement.
(p) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other documents
as they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time
18
prior to, the Closing Date and the obligations of the Underwriters to purchase
the Additional Shares may be cancelled by you at, or at any time prior to, the
Additional Closing Date. Notice of such cancellation shall be given to the
Company in writing, or by telephone. Any such telephone notice shall be
confirmed promptly thereafter in writing.
7. Indemnification .
(a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Shares, as
originally filed or any amendment thereof, or any related preliminary prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading
or (ii) any untrue statement or alleged untrue statement of a material fact
included in the supplement or prospectus wrapper material distributed in
connection with the reservation and sale of the Directed Shares to eligible
employees and certain persons designated by the Company or the omission or
alleged omission therefrom of a material fact necessary to make the statements
therein, when considered in conjunction with the Prospectus or preliminary
prospectus, not misleading; provided, however, that the Company will not be
liable in any such case to the extent but only to the extent that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through you
expressly for use therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have including under this Agreement.
(b) The Selling Stockholders shall indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Shares, as
originally filed or any amendment thereof, or any related preliminary prospectus
or the Prospectus, or in any
19
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact included in the
supplement or prospectus wrapper material distributed in connection with the
reservation and sale of the Directed Shares to eligible employees and certain
persons designated by the Company or the omission or alleged omission therefrom
of a material fact necessary to make the statements therein, when considered in
conjunction with the Prospectus or preliminary prospectus, not misleading;
provided, however, that the Selling Stockholders will only be liable in any such
case to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Selling Stockholders expressly for use therein. This indemnity agreement
will be in addition to any liability which the Selling Stockholders may
otherwise have including under this Agreement.
(c) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, and each Selling Stockholder against any losses, liabilities, claims,
damages and expenses whatsoever as incurred (including but not limited to
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, in each case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein. This indemnity will be in addition to any
liability which any Underwriter may otherwise have including under this
Agreement.
(d) In connection with the offer and sale of Directed Shares,
the Company agrees, promptly upon written notice, to indemnify and hold harmless
the Underwriters from and against any and all losses, liabilities, claims,
damages and expenses incurred by them as a result of the failure of any Directed
Shares Purchaser, who makes an oral agreement, properly confirmed by the
Underwriters, to purchase Directed Shares within twenty-four hours of
establishing the public offer price, to pay for and accept delivery of the
Directed Shares.
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(e) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of any claims or the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the claim or the
commencement thereof (but the failure so to notify an indemnifying party shall
not relieve it from any liability which it may have under this Section 7). In
case any such claim or action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or reasonably could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or reasonably could have been the subject matter of such action and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of the indemnified party.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Selling Stockholders
and the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company) as incurred to which the Company and one
or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company, the
Selling Stockholders and the Underwriters from the offering of the Shares or, if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits
21
referred to above but also the relative fault of the Company, the Selling
Stockholders and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company, the Selling Stockholders and the Underwriters shall be deemed to
be in the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the Selling Stockholders bears to (y) the underwriting
discount received by the Underwriters, respectively, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company, of the Selling Stockholders and of the Underwriters 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, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the shares
are underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within in
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, each person, if any, who controls a Selling Stockholder
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Selling
Stockholder and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 8. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. The obligations of the Underwriters to
contribute pursuant to this Section 8 are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
do not (after giving effect to
22
arrangements, if any, made by you pursuant to subsection (b) below) exceed in
the aggregate 10% of the number of Firm Shares or Additional Shares, the Firm
Shares or Additional Shares to which the default relates shall be purchased by
the non-defaulting Underwriters in proportion to the respective proportions
which the numbers of Firm Shares set forth opposite their respective names in
Schedule I hereto bear to the aggregate number of Firm Shares set forth opposite
the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within 5 calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Selling Stockholders to sell the Additional Shares shall thereupon
terminate, without liability on the part of the Company and the Selling
Stockholders with respect thereto (except in each case as provided in Section 5,
7(a), 7(b) and 8 hereof) or the Underwriters, but nothing in this Agreement
shall relieve a defaulting Underwriter or Underwriters of its or their
liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date and you or
the Selling Stockholders shall have the right to postpone the Additional Closing
Date, as the case may be, for a period, not exceeding five business days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in the opinion
of Underwriters' Counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 9 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares and Additional Shares.
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10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company and the
Selling Stockholders contained in this Agreement, including the agreements
contained in Section 5, the indemnity agreements contained in Section 7 and the
contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof, by or on behalf of the
Company, any of its officers and directors or any controlling person thereof or
by or on behalf of the Selling Stockholders, and shall survive delivery of and
payment for the Shares to and by the Underwriters. The representations contained
in Section 1 and the agreements contained in Sections 5, 7, 8 and 11(d) hereof
shall survive the termination of this Agreement, including termination pursuant
to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the later of
(i) when you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. If either the initial public offering price or the purchase price per
Share has not been agreed upon prior to 5:00 P.M., New York City time, on the
fifth full business day after the Registration Statement shall have become
effective, this Agreement shall thereupon terminate without liability to the
Company, the Selling Stockholders or the Underwriters except as herein expressly
provided. Until this Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying you or by you notifying the Company.
Notwithstanding the foregoing, the provisions of this Section 11 and of Sections
1, 5, 7 and 8 hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at
any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (A) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) trading on the Nasdaq National Market shall have been
suspended or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required on the Nasdaq
National Market, by the Nasdaq National Market or by order of the Commission or
by any other governmental authority having jurisdiction; or (C) a banking
moratorium has been declared by any state or federal authority or any material
disruption in commercial banking or securities settlement or clearance services
shall have occurred; or (D)(i) there has occurred any outbreak or escalation of
hostilities or acts of terrorism involving the United States or there is a
declaration of a national emergency or war by the United States or (ii) there
shall have been any other calamity or crisis or any change in political,
financial or economic conditions, if the effect of any such event in (i) or (ii)
as determined in your judgment makes it impracticable or inadvisable to proceed
with the offering, sale and delivery of the Firm Shares or the Additional
Shares, as the case may be, on the terms and in the manner contemplated by the
Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be in writing.
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(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company or the Selling Stockholders to perform any agreement herein or comply
with any provision hereof, the Company and the Selling Stockholders will,
subject to demand by you, reimburse the Underwriters for all out-of-pocket
expenses (including the fees and expenses of their counsel), incurred by the
Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or
faxed and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital
Markets, with a copy to Xxxxxxx, Phleger & Xxxxxxxx LLP, 0000 Xxxx Xxxx, Xxxx
Xxxx, XX 00000, Attention: Xxxxxx X. Mo, Esq.;
(b) if sent to the Company, shall be mailed, delivered, or
faxed and confirmed in writing to the Company and its counsel at the addresses
set forth in the Registration Statement, Attention: Xxxxxx X. Xxxx, Esq.;
(c) if sent to the Selling Stockholders, shall be mailed,
delivered, or faxed and confirmed in writing to the Selling Stockholders at the
addresses set forth in the Registration Statement;
provided, however, that any notice to an Underwriter pursuant to
Section 7 shall be delivered or sent by mail or facsimile transmission to such
Underwriter at its address set forth in its acceptance facsimile to you, which
address will be supplied to any other party hereto by you upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
13. Parties. This Agreement shall insure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company, and the Selling
Stockholders and the controlling persons, directors, officers, employees and
agents referred to in Section 7 and 8, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Shares from any of
the Underwriters.
14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
15. 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 instrument.
25
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. Time is of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
[signature page follows]
26
If the foregoing correctly sets forth the understanding
between you, the Company and the Selling Stockholders, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement among us. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
SYNAPTICS INCORPORATED
By:_______________________________________________
Name: Xxxxxxx Xxx
Title: President and Chief Executive Officer
[SELLING STOCKHOLDERS]
By:_______________________________________________
Name:
Title: Attorney-in-fact for the Selling
Stockholder named in Schedule II hereto
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
XX XXXXX SECURITIES CORPORATION
SOUNDVIEW TECHNOLOGY GROUP
By: BEAR, XXXXXXX & CO. INC.
By:_______________________________________
Name:
Title:
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
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