EXHIBIT 1.1
1,000,000 Shares
Microchip Technology Incorporated
Common Stock
($0.001 Par Value)
UNDERWRITING AGREEMENT
----------------------
, 1997
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Alex. Xxxxx & Sons Incorporated
Deutsche Xxxxxx Xxxxxxxx Inc.
Prudential Securities Incorporated
Xxxxxxxxx, Xxxxxxxx & Company LLC
c/o Alex. Xxxxx & Sons Incorporated
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Microchip Technology Incorporated, a Delaware corporation (the "Company"),
proposes to sell to the several underwriters (the "Underwriters") named in
Schedule I hereto an aggregate of 1,000,000 shares of the Company's Common
Stock, $0.001 par value (the "Firm Shares"). The respective amounts of the Firm
Shares to be so purchased by the Underwriters are set forth opposite their names
in Schedule I hereto. The Company also proposes to sell, at the Underwriters'
option, an aggregate of up to 150,000 additional shares of the Company's Common
Stock (the "Option Shares") as set forth in Section 2(c) below.
As the Underwriters, you have advised the Company (a) that you are
authorized to enter into this Agreement, and (b) that each of you is willing,
acting severally and not jointly, to purchase the numbers of Firm Shares set
forth opposite your respective name in Schedule I, plus your pro rata portion of
the Option Shares if you elect to exercise the over-allotment option in whole or
in part for the accounts of the Underwriters. The Firm Shares and the Option
Shares (to the extent the aforementioned options are exercised) are herein
collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
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1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
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and warrants as follows:
(a) A registration statement on Form S-3 (File No. 33-__________) with
respect to the Shares has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended, (the "Act") and the
Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission under the Act. Copies of such registration statement, including any
amendments thereto, the preliminary prospectuses (meeting the requirements of
Rule 430A of the Rules and Regulations) contained therein and the exhibits,
financial statements and schedules, as finally amended and revised, have
heretofore been delivered by the Company to you. Such registration statement,
herein referred to as the "Registration Statement," which shall be deemed to
include all information omitted therefrom in reliance upon Rule 430A,
incorporated therein by reference and contained in the Prospectus referred to
below, has been declared effective by the Commission under the Act and no post
effective amendment to the Registration Statement has been filed as of the date
of this Agreement. The form of prospectus first filed by the Company with the
Commission pursuant to its Rule 424(b) and Rule 430A is herein referred to as
the "Prospectus." Each preliminary prospectus included in the Registration
Statement prior to the time it becomes effective is herein referred to as a
"Preliminary Prospectus."
(b) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its business as
described in the Registration Statement; each of the subsidiaries of the
Company, as listed in Exhibit 22.1 to Item 16(a) of the Registration Statement
on Form S-1 (File No. 33-57960) filed with the Commission on February 5, 1993
(collectively, the "Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with corporate power and authority to own or lease its
properties and conduct its business as described in the Registration Statement;
the Company and each of the Subsidiaries are duly qualified to transact business
in all jurisdictions in which the conduct of their business requires such
qualification; the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company free and clear of all liens,
encumbrances and security interests (except as set forth in the Registration
Statement); and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding.
(c) The outstanding shares of Common Stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable; the
Shares to be issued and sold by the Company have been duly authorized and when
issued and paid for as contemplated herein will be validly issued, fully paid
and non-assessable; and no
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preemptive rights of stockholders exist with respect to any of the Shares or
the issue and sale thereof.
(d) The Shares conform with the statements concerning them in the
Registration Statement.
(e) The Commission has not issued an order preventing or suspending
the use of any Preliminary Prospectus relating to the proposed offering of the
Shares nor instituted proceedings for that purpose. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein by, and in all
respects conform or will conform, as the case may be, to the requirements of the
Act and the Rules and Regulations. Neither the Registration Statement nor any
amendment thereto, and neither the Prospectus nor any supplement thereto
contains or will contain, as the case may be, any untrue statement of a material
fact or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus, or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter,
specifically for use in the preparation thereof.
(f) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as incorporated by
reference in the Registration Statement, present fairly the financial position
and the results of operations of the Company and Subsidiaries consolidated, at
the indicated dates and for the indicated periods. Such financial statements
have been prepared in accordance with generally accepted principles of
accounting, consistently applied (except as stated therein) throughout the
periods involved, and all adjustments necessary for a fair presentation of
results for such periods have been made. The summary financial and statistical
data included in the Registration Statement presents fairly the information
shown therein and has been compiled on a basis consistent with the financial
statements presented therein.
(g) There is no action or proceeding pending or, to the knowledge of
the Company, threatened against the Company or any of the Subsidiaries before
any court or administrative agency which might result in any material adverse
change in the business or condition of the Company and of the Subsidiaries taken
as a whole, except as set forth in the Registration Statement.
(h) The Company and the Subsidiaries have good and marketable title to
all of the properties and assets reflected in the financial statements (or as
described in the Registration Statement) hereinabove described, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration
Statement) or which are not material in amount. The
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Company and the Subsidiaries occupy their leased properties under valid and
binding leases conforming to the description thereof set forth in the
Registration Statement.
(i) The Company and the Subsidiaries have filed all Federal, State and
foreign income tax returns which have been required to be filed and have paid
all taxes indicated by said returns and all assessments received by them or any
of them to the extent that such taxes have become due.
(j) Since the respective dates as of which information is given in the
Registration Statement, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company and its Subsidiaries taken as
a whole or the earnings, business affairs, management, or business prospects of
the Company and its Subsidiaries taken as a whole, whether or not occurring in
the ordinary course of business, and there has not been any material transaction
entered into by the Company or the Subsidiaries, other than transactions in the
ordinary course of business and changes and transactions contemplated by the
Registration Statement, as it may be amended or supplemented. The Company and
the Subsidiaries have no material contingent obligations which are not disclosed
in the Registration Statement.
(k) Neither the Company nor any of the Subsidiaries is in default
under any agreement, lease, contract, indenture or other instrument or
obligation to which it is a party or by which it or any of its properties is
bound and which default is of material significance in respect of the business
or financial condition of the Company and the Subsidiaries taken as a whole.
The consummation of the transactions herein contemplated and the fulfillment of
the terms hereof will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, the Certificate of
Incorporation or Bylaws of the Company or any order, rule or regulation
applicable to the Company or any Subsidiary of any court or of any regulatory
body or administrative agency or other governmental body having jurisdiction.
The consummation of the transactions herein contemplated and the fulfillment of
the terms hereof will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company or any
Subsidiary is a party, except where such breach, violation or default would not
have a material adverse effect on the business or financial condition of the
Company and the Subsidiaries, taken as a whole.
(l) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or may be necessary to
qualify the Shares for public offering by the Underwriters under State
securities or Blue Sky laws) has been obtained or made and is in full force
and effect.
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(m) The Company and each of the Subsidiaries holds all material
licenses, certificates and permits from governmental authorities which are
necessary to the conduct of their businesses; and neither the Company nor any of
the Subsidiaries has infringed any patent, patent right, trade name, trademark,
copyrights or trade secret, which infringement is material to the business of
the Company and the Subsidiaries taken as a whole.
(n) KPMG Peat Marwick, who have certified certain of the financial
statements filed with the Commission as part of the Registration Statement, are
independent public accountants as required by the Act and the Rules and
Regulations.
(o) Each executive officer and director of the Company has executed a
market stand-off agreement restricting such stockholder from directly or
indirectly selling, offering to sell, contracting to sell (including, without
limitation, selling short), granting any option to purchase or otherwise
transferring or disposing of (other than to donees who agree to be similarly
bound) more than (a) 30,000 shares of Common Stock in the case of Xxxxx Xxxxxx
or (b) 10,000 shares of any securities of the Company, for at least 90 days
following the date of the Prospectus.
(p) The Company has not been advised, and has no reason to believe,
that either it or any of its Subsidiaries has not conducted or is not conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it has conducted or is conducting business, including,
without limitation, all applicable local, state and federal employment and
environmental laws and regulations, except where failure to have been or to be
in compliance did not and would not have a material adverse effect on the
business or financial condition of the Company and the Subsidiaries, taken as a
whole.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
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(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Company
agrees to sell to the Underwriters and each Underwriter agrees, severally and
not jointly, to purchase, at a price of $______________ per share, the number of
Firm Shares set forth opposite the name of each Underwriter in Schedule I
hereof, subject to adjustments in accordance with Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in
same day funds available in New York against delivery of certificates therefor
for the accounts of the Underwriters. Such payment and delivery are to be made
at the offices of Alex. Xxxxx & Sons Incorporated, 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, at 10:00 a.m., Baltimore time, on the third business day
after the date of this Agreement or at such other time and date not later than
third business days thereafter as you and the Company shall agree upon, such
time and date being herein referred to as the "Closing Date." (As used herein,
"business day" means a day on which the New York Stock Exchange is open for
trading and on which banks in New York are open for business and not permitted
by law or
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executive order to be closed.) The certificates for the Firm Shares will be
delivered in such denominations and in such registrations as the Underwriters
request in writing not later than the third full business day prior to the
Closing Date, and will be made available for inspection by the Underwriters at
least one business day prior to the Closing Date.
(c) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters to purchase the Option Shares at the
price per share as set forth in the first paragraph of this Section 2. The
option granted pursuant to this Section 2(c) may be exercised in whole or in
part but only once and at any time upon written notice given before 11:59 p.m.
on the later of January _____, 1997 and 30 days after the date of this
Agreement, by you, the Underwriters, to the Company setting forth the number of
Option Shares as to which the Underwriters are exercising the option, the names
and denominations in which the Option Shares are to be registered and the time
and date at which such certificates are to be delivered. The time and date at
which certificates for Option Shares are to be delivered shall be determined by
the Underwriters but shall not be earlier than three nor later than 10 full
business days after the exercise of this option, nor in any event prior to the
Closing Date (such time and date being herein referred to as the "Option Closing
Date"). If the date of exercise of this option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as the Option
Closing Date. The number of Option Shares to be purchased by each Underwriter
shall be in the same proportion to the total number of Option Shares being
purchased as the number of Firm Shares being purchased by such Underwriter bears
to 1,000,000, adjusted by you in such manner as to avoid fractional shares. The
option with respect to the Option Shares granted hereunder may be exercised only
to cover over-allotments in the sale of the Firm Shares by the Underwriters.
The Underwriters may cancel this option at any time prior to its expiration by
giving written notice of such cancellation to the Company. To the extent, if
any, that this option is exercised, payment for the Option Shares shall be made
on the Option Closing Date in same day funds available in New York against
delivery of certificates therefor at the offices of Alex. Xxxxx & Sons
Incorporated, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
3. OFFERING BY THE UNDERWRITERS. It is understood that the Underwriters
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are to make a public offering of the Firm Shares as soon as they deem it
advisable to do so. The Firm Shares are to be initially offered to the public
at the initial public offering price set forth in the Prospectus. The
Underwriters may from time to time thereafter sell stock of the Company on terms
other than as set forth herein. To the extent, if at all, that any Option
Shares are purchased pursuant to Section 2 hereof, the Underwriters will offer
them to the public on the foregoing terms.
It is further understood that you will act as the Representatives for the
Underwriters in the offering and sale of the Shares in accordance with a Master
Agreement Among Underwriters entered into by you and the several other
Underwriters.
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4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
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Underwriters that:
(a) The Company will (A) prepare and timely file with the Commission
under Rule 424(b) of the Rules and Regulations a Prospectus containing
information previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file
any amendment to the Registration Statement or supplement to the Prospectus of
which the Underwriters shall not previously have been advised and furnished with
a copy or to which the Underwriters shall have reasonably objected in writing or
which is not in compliance with the Rules and Regulations and (C) file on a
timely basis all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission subsequent to the date
of the Prospectus and prior to the termination of the offering of the Shares by
the Underwriters.
(b) The Company will advise the Underwriters promptly of any request
of the Commission for amendment of the Registration Statement or for supplement
to the Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or of the institution of any proceedings
for that purpose, and the Company will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters in endeavoring to
qualify the Shares for sale under the securities laws of such jurisdictions as
the Underwriters may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file
such a consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Underwriters may
reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the
Underwriters, from time to time, as many copies of any Preliminary Prospectus as
the Underwriters may reasonably request. The Company will deliver to, or upon
the order of, the Underwriters during the period when delivery of a Prospectus
is required under the Act, as many copies of the Prospectus in final form, or
as thereafter amended or supplemented, as the Underwriters may reasonably
request. The Company will deliver to the Underwriters at or before the Closing
Date, two signed copies of the Registration Statement and all amendments
thereto, including all exhibits filed therewith, and will deliver to the
Underwriters such number of copies of the Registration Statement, but without
exhibits, and of all amendments thereto, as the Underwriters may reasonably
request.
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(e) If during the period in which a prospectus is required by law to
be delivered by an Underwriter or dealer any event shall occur as a result of
which, in the judgment of the Company or in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or, if
it is necessary at any time to amend or supplement the Prospectus to comply with
any law, the Company promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
(f) The Company will make generally available to its security holders,
as soon as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earnings statement
(which need not be audited) in reasonable detail, covering a period of at least
12 consecutive months beginning after the effective date of the Registration
Statement, which earning statement shall satisfy the requirements of Section
11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you
in writing when such statement has been so made available.
(g) The Company will, for a period of four years from the Closing
Date, deliver to the Underwriters copies of annual reports and copies of all
other documents, reports and information furnished by the Company to its
stockholders or filed with any securities exchange pursuant to the requirements
of such exchange or with the Commission pursuant to the Act or the Securities
Exchange Act of 1934, as amended. The Company will deliver to the Underwriters
similar reports with respect to significant subsidiaries, as that term is
defined in the Rules and Regulations, which are not consolidated in the
Company's financial statements.
(h) Other than pursuant to (A) the Company's Employee Stock Purchase
Plan, (B) the Company's International Employee Stock Purchase Plan, (C) the
Company's 1993 Stock Option/Stock Issuance Plan, (D) an acquisition by the
Company of another corporation or (E) a registration statement on Form S-8,
until 90 days after the date of the Prospectus, the Company will not, without
the prior written consent of the Underwriters, directly or indirectly, sell
(including, without limitation, any short sale), offer to sell, grant any option
for the sale of, issue, distribute or otherwise dispose of any shares of
Common Stock or any options, rights or warrants with respect to any Common
Stock or any security convertible into Common Stock or register for sale under
the Act any Common Stock.
(i) The Company will use its best efforts to designate the Shares on
the National Association of Securities Dealers Automated Quotation (herein
called "Nasdaq") National Market System.
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5. COSTS AND EXPENSES. The Company will pay all costs, expenses and fees
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incident to the performance of its obligations under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and the disbursements of counsel for the Company; the
cost of printing and delivering to, or as requested by, the Underwriters copies
of the Registration Statement, Preliminary Prospectuses, the Prospectus, this
Agreement, the Agreement Among Underwriters, the Underwriters' Selling
Memorandum, the Underwriters' Questionnaire, the Invitation Letter, the Power of
Attorney, the Application for Inclusion, the Blue Sky Survey and any supplements
or amendments thereto; any transfer taxes imposed on the sale of the Shares to
the Underwriters; the filing fees of the Commission; the filing fees and
expenses incident to securing any required review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Shares;
the Entry Fees and Annual Fees of the NASD; and the expenses, including the fees
and disbursements of counsel for the Underwriters, incurred in connection with
the qualification of the Shares under State securities or Blue Sky laws. Any
transfer taxes imposed on the sale of the Shares to the Underwriters will be
paid by the Company. The Company shall not, however, be required to pay for any
of the Underwriters' expenses (other than those related to qualification under
State securities or Blue Sky laws) except that, if this Agreement shall not be
consummated because the conditions in Section 7 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Section 6
hereof, or by reason of any failure, refusal or inability on the part of the
Company to perform any undertaking or satisfy any condition of this Agreement or
to comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms is due to the
default or omission of any Underwriter, then the Company shall reimburse the
Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder, but the Company shall not in any event be liable to
any of the Underwriters for damages on account of loss of anticipated profits
from the sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several
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obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on the Option Closing Date, are subject to the
accuracy, as of the Closing Date or the Option Closing Date, as the case may
be, of the representations and warranties of the Company contained herein, and
to the performance by the Company of its covenants and obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the knowledge of the
Company, shall be contemplated by the Commission.
(b) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Xxxxxx, Xxxxxxx Xxxxxxxx
& Xxxxxx, P.C.,
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counsel for the Company, dated the Closing Date, or the Option Closing Date,
as the case may be, addressed to the Underwriters to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; to such counsel's knowledge, the
Company is duly qualified to transact business in all jurisdictions in which
the conduct of its business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon the business of
the Company and the Subsidiaries taken as a whole.
(ii) The Company has authorized and outstanding capital stock as set
forth under the caption "Capitalization" in the Prospectus; the authorized
shares of its Common Stock have been duly authorized; the outstanding shares of
its Common Stock have been duly authorized and validly issued and are fully paid
and non-assessable; all of the Shares conform in all material respects to the
description thereof contained in the Prospectus; the certificates for the Shares
are in due and proper form; the shares of Common Stock, including the Option
Shares, if any, to be sold by the Company pursuant to this Agreement have been
duly authorized and will be validly issued, fully paid and non-assessable when
issued and paid for as contemplated by this Agreement; and no preemptive rights
of stockholders exist with respect to any of the Shares or the issue and sale
thereof.
(iii) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order proceedings with
respect thereto have been instituted or are pending or threatened under the Act.
(iv) The Registration Statement, the Prospectus and each amendment or
supplement thereto comply as to form in all material respects with the
requirements of the Act and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to the financial
statements, schedules and other financial or statistical information included
therein or as to information supplied by the Underwriters for use therein).
(v) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A as filed with the Commission on February 5,
1993, insofar as such statements constitute a summary of documents referred to
therein or matters of law, are in all material respects accurate summaries and
fairly and correctly present the information called for with respect to such
documents and matters of law.
(vi) Such counsel does not know of any contracts or documents
required to be filed as exhibits to the Registration Statement or described in
the Registration Statement or the Prospectus which are not so filed or
described as required, and such contracts and documents as summarized in the
Registration Statement or the Prospectus are fairly summarized in all material
respects.
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(vii) Such counsel knows of no material legal proceedings pending or
threatened against the Company or any of the Subsidiaries except as set forth
in the Prospectus.
(viii) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, the certificate of incorporation or by-laws of the
Company. To such counsel's knowledge, the execution and delivery of this
Agreement and the consummation of the transactions herein contemplated do not
and will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any agreement or instrument
known to such counsel to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the Subsidiaries may be bound and that
has been certified by the Company to such counsel as an instrument under which
the Company or any of its Subsidiaries enjoys substantial rights or benefits
(and such counsel shall state that they know of no material agreement or
instrument of the Company or any of the Subsidiaries to be in existence which
has not been so certified), except where such breach, violation or default
would not have a material adverse effect on the business or financial
condition of the Company and the Subsidiaries taken as a whole.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(x) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein contemplated
(other than as may be required by the National Association of Securities
Dealers, Inc. or as required by State securities and Blue Sky laws as to which
such counsel need express no opinion) except such as have been obtained or made,
specifying the same.
In rendering such opinion, Wilson, Sonsini, Xxxxxxxx & Xxxxxx, P.C., may
rely as to matters governed by the laws of states other than Delaware or Federal
laws on local counsel in such jurisdictions provided that in each case such
counsel shall state that they believe that they and the Underwriters are
justified in relying on such local counsel. In addition to the matters set
forth above, such opinion shall also include a statement to the effect that
nothing has come to the attention of such counsel which leads them to believe
that the Registration Statement, as of the time it became effective under the
Act, the Prospectus or any amendment or supplement thereto, on the date it was
filed pursuant to Rule 424(b) and the Registration Statement and the Prospectus,
or any amendment or supplement thereto, as of the Closing Date, or the Option
Closing Date, as the case may be, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (except that such
counsel need express no view as to financial statements, schedules and other
financial information included therein). With respect to such statement, such
counsel may state that
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their belief is based upon the procedures set forth therein, but is without
independent check and verification.
(c) The Underwriters shall have received from counsel for the Company,
an opinion dated the Closing Date, or any Option Closing Date, as the case may
be, relating to certain patent matters in form and substance satisfactory to the
Underwriters and Xxxx Xxxx Xxxx & Freidenrich, A Professional Corporation,
counsel for the Underwriters.
(d) The Underwriters shall have received legal opinions in form and
substance satisfactory to the Underwriters and Xxxx Xxxx Xxxx & Freidenrich, A
Professional Corporation, counsel to the Underwriters, as to the due
organization, valid existence, corporate power and authority and qualification
to do business of the Subsidiaries, the ownership of and the absence of liens on
the outstanding capital of the Subsidiaries and the absence of any additional
options, warrants or rights to purchase capital stock or ownership interests in
the Subsidiaries.
(e) The Underwriters shall have received from Xxxx Xxxx Xxxx &
Freidenrich, A Professional Corporation, counsel for the Underwriters, an
opinion dated the Closing Date, or any Option Closing Date, as the case may be,
substantially to the effect specified in subparagraphs (iii) and (iv) of
Paragraph (b) of this Section 6, and that the Company is a validly organized and
existing corporation under the laws of the State of Delaware and that the shares
of Common Stock, including the Option Shares, if any, to be sold by the Company
pursuant to this Agreement have been duly authorized and will be validly issued,
fully paid and non-assessable when issued and paid for as contemplated by this
Agreement. In rendering such opinion, such counsel may rely as to all matters
governed other than by the laws of the State of California or Delaware or
Federal laws on the opinions of counsel referred to in Paragraphs (b), (c) and
(d) of this Section 6. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to the
attention of such counsel which leads them to believe that the Registration
Statement, as of the time it became effective under the Act, and the
Prospectus or any amendment or supplement thereto, on the date it was filed
pursuant to Rule 424(b), and the Registration Statement and the Prospectus, or
any amendment or supplement thereto, as of the Closing Date, or the Option
Closing Date, as the case may be, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (except that such
counsel need express no view as to financial statements, schedules and other
financial information included therein). With respect to such statement, such
counsel may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(f) The Underwriters shall have received at or prior to the Closing
Date from Xxxx Xxxx Xxxx & Freidenrich, A Professional Corporation, a memorandum
or summary, in form and substance satisfactory to the Underwriters, with respect
to the qualification for offering and sale by the Underwriters of the Shares
under the State
12
securities or Blue Sky laws of such jurisdictions as the Underwriters may
reasonably have designated to the Company.
(g) The Underwriters shall have received on the Closing Date, or the
Option Closing Date, as the case may be, a signed letter from KPMG Peat Marwick
dated the Closing Date or the Option Closing Date, as the case may be, which
shall confirm, on the basis of a review in accordance with the procedures set
forth in the letter signed by such firm and dated and delivered to the
Underwriters on the date hereof, that nothing has come to their attention during
the period from the date five days prior to the date hereof, to a date not more
than five days prior to the Closing Date, or the Option Closing Date, as the
case may be, which would require any change in their letter dated the date
hereof if it were required to be dated and delivered on the Closing Date, or the
Option Closing Date, as the case may be. All such letters shall be in form and
substance satisfactory to the Underwriters.
(h) The Underwriters shall have received on the Closing Date, or the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company to the
effect that, as of the Closing Date, or the Option Closing Date, as the case may
be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been taken
or are, to his knowledge, contemplated by the Commission.
(ii) He does not know of any litigation instituted or threatened
against the Company of a character required to be disclosed in the Registration
Statement which is not so disclosed; he does not know of any material contract
required to be filed as an exhibit to the Registration Statement which is not
so filed; and the representations and warranties of the Company contained in
Section 1 hereof are true and correct as of the Closing Date, or the Option
Closing Date, as the case may be.
(iii) He has carefully examined the Registration Statement
and the Prospectus and, in his opinion, as of the effective date of the
Registration Statement, the statements contained in the Registration Statement
were true and correct, and such Registration Statement and Prospectus did not
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in his opinion, since
the effective date of the Registration Statement, no event has occurred which
should have been set forth in a supplement to or an amendment of the Prospectus
which has not been so set forth in such supplement or amendment.
(i) The Company shall have furnished to the Underwriters such further
certificates and documents confirming the representations and warranties
contained herein and related matters as the Underwriters may reasonably have
requested.
13
(j) The Firm Shares and Option Shares, if any, have been approved for
designation upon notice of issuance on the Nasdaq National Market System.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Underwriters and to Xxxx Xxxx Xxxx & Freidenrich, A
Professional Corporation, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date, or the Option Closing Date, as the
case may be.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
--------------------------------------------
Company to sell and deliver the portion of the Shares required to be delivered
as and when specified in this Agreement are subject to the conditions that at
the Closing Date, or the Option Closing Date, as the case may be, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
---------------
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning
of the Act, against any losses, claims, damages or liabilities to which such
Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter and
each such controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with investigating
or defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or through the Underwriters
specifically for use in the
14
preparation thereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration
Statement and each person, if any, who controls, within the meaning of the Act,
the Company against any losses, claims, damages or liabilities to which the
Company or any such director, officer, or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made; and
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Underwriters specifically
for use in the preparation thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a) or (b). In case
any such proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party and shall pay as incurred the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred
the fees and expenses of the counsel retained by the indemnified party in the
event (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention
15
of such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in the
case of parties indemnified pursuant to Section 8(a) and by the Company in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 8(c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) 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 in this Section 8(d). The amount
paid or payable by an indemnified party as a result of the
16
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Shares purchased by such
Underwriter and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Section 8(d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
9. DEFAULT BY UNDERWRITERS. If on the Closing Date or the Option Closing
-----------------------
Date, as the case may be, any Underwriter shall fail to purchase and pay for the
portion of the Shares which such Underwriter has agreed to purchase and pay for
on such date (otherwise than by reason of any default on the part of the
Company) the non-defaulting Underwriter shall use its best efforts to procure
within 24 hours thereafter one or more other Underwriters, or any others, to
purchase from the Company such amounts as may be agreed upon and upon the
terms set forth herein, the Firm Shares, or the Option Shares, as the case may
be, which the defaulting Underwriter or Underwriters failed to purchase. If
during such 24 hours the non-defaulting Underwriter shall not have procured
such other Underwriter, or any others, to purchase the Firm Shares or Option
Shares, as the case may be, agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of shares with
respect to which such default shall occur does not exceed 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the other
Underwriter shall be obligated to purchase the Firm Shares or Option Shares,
as the case may be, which such defaulting Underwriter or Underwriters failed
to purchase, or (b) if the aggregate number of shares of Firm Shares or Option
Shares, as the case may be, with respect to which such default shall occur
exceeds 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the Company or the non-defaulting Underwriter will have the right, by
written notice given within the next 24-hour period to the parties to this
Agreement, to terminate this Agreement without liability on the part of the
non-defaulting Underwriter, or the Company except to the extent provided in
Section 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 9, the Closing Date or Option
Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you as Underwriters, may determine in order
17
that the required changes in the Registration Statement or in the Prospectus
or in any other documents or arrangements may be effected. The term
"Underwriter" includes any person substituted for a defaulting Underwriter.
Any action taken under this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. NOTICES. All communications hereunder shall be in writing and, except
-------
as otherwise provided herein, will be mailed, delivered or telegraphed and
confirmed as follows: if to the Underwriters, to Alex. Xxxxx & Sons
Incorporated, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxxx; if to the Company, to Microchip Technology
Incorporated, 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention:
C. Xxxxxx Xxxxxxx.
11. TERMINATION. This Agreement may be terminated by you by notice to the
-----------
Company as follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the Underwriters, or (ii) 11:30 a.m. on
the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company and its Subsidiaries taken as
a whole or the earnings, business affairs, management or business prospects of
the Company and its Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any outbreak of hostilities or other national
or international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, calamity, crisis or change on the
financial markets of the United States would, in your reasonable judgment, make
the offering or delivery of the Shares impracticable, (iii) suspension of
trading in securities on the New York Stock Exchange or the American Stock
Exchange or limitation on prices (other than limitations on hours or numbers of
days of trading) for securities on either such Exchange, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your reasonable opinion materially and adversely affects or will materially or
adversely affect the business or operations of the Company, (v) declaration of a
banking moratorium by either federal or New York State authorities, or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary of fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United States; or
(c) as provided in Sections 6 or 9 of this Agreement.
18
This Agreement also may be terminated by you, by notice to the Company as to any
obligation of the Underwriters to purchase the Option Shares, upon the
occurrence at any time prior to the Option Closing Date, of any of the events
described in subparagraph (b) above or as provided in Sections 6 or 9 of this
Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the
----------
benefit of the Underwriters and the Company and their respective successors,
executors, administrators, heirs and assigns, and the officers, directors and
controlling persons referred to herein, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Shares merely because of such purchase.
13. MISCELLANEOUS. The reimbursement, indemnification and contribution
-------------
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (c) delivery of and payment for the
Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Maryland.
19
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
Underwriters in accordance with its terms.
Very truly yours,
MICROCHIP TECHNOLOGY INCORPORATED
By: _____________________________
President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
ALEX. XXXXX & SONS INCORPORATED
DEUTSCHE XXXXXX XXXXXXXX INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXX, XXXXXXXX & COMPANY LLC
By ALEX. XXXXX & SONS INCORPORATED
By: _______________________________
Authorized Officer
20
SCHEDULE I
SCHEDULE OF UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
----------- ---------------------
Alex. Xxxxx & Sons Incorporated
Deutsche Xxxxxx Xxxxxxxx Inc.
Prudential Securities Incorporated
Xxxxxxxxx, Xxxxxxxx & Company LLC
---------
TOTAL 1,000,000
21
