sv3za
As filed with the Securities and Exchange Commission on February 5, 2009
|
|
|
|
Registration No. 333-155582 |
|
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT
NO.1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Synaptics Incorporated
(Exact Name of Registrant as Specified in its Charter)
|
|
|
Delaware
|
|
77-0118518 |
|
|
|
(State or other jurisdiction of
|
|
(I.R.S. Employer |
incorporation or organization)
|
|
Identification Number) |
3120 Scott Blvd.
Santa Clara, California 95054
(408) 454-5100
(Address, including zip code, and telephone number, including area code,
of Registrants principal executive offices)
Francis F. Lee
Chief Executive Officer
3120 Scott Blvd.
Santa Clara, California 95054
(408) 454-5100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Robert S. Kant, Esq.
Greenberg Traurig, LLP
2375 East Camelback Road, Suite 700
Phoenix, Arizona 85016
(602) 445-8000
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of the Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering.
o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
|
|
|
|
|
|
|
Large accelerated filer þ
|
|
Accelerated filer o
|
|
Non-accelerated filer o
|
|
Smaller reporting company o |
|
|
|
|
(Do not check if a smaller reporting company) |
|
|
The registrant hereby amends this registration statement on such date or dates as may be necessary
to delay its effective date until the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall
become effective on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities,
and it is not soliciting an offer to buy these securities, in any
state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED February 5, 2009
PROSPECTUS
$250,000,000
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Purchase Contracts
Units
We may offer and sell from time to time, in one or more series or issuances and on terms that
we will determine at the time of the offering, any combination of the securities described in this
prospectus, up to an aggregate amount of $250,000,000.
We will provide specific terms of any offering in a supplement to this prospectus. Any
prospectus supplement may also add, update, or change information contained in this prospectus.
You should carefully read this prospectus and the applicable prospectus supplement as well as the
documents incorporated or deemed to be incorporated in this prospectus before you purchase any of
the securities offered hereby.
These securities may be offered and sold in the same offering or in separate offerings; to or
through underwriters, dealers, and agents; or directly to purchasers. The names of any
underwriters, dealers, or agents involved in the sale of our securities and their compensation will
be described in the applicable prospectus supplement.
Our common stock is listed on the NASDAQ Global Select Market under the symbol SYNA. We
will make application to list any shares of common stock sold by us under this prospectus and any
prospectus supplement on the NASDAQ Global Select Market. We will provide information in any
applicable prospectus supplement regarding any listing of securities other than shares of our
common stock on any securities exchange.
This prospectus may not be used to consummate a sale of our securities unless accompanied by
the applicable prospectus supplement.
You should consider the risks that we have described in this prospectus and in the
accompanying prospectus supplement before you invest. See Risk Factors on page 2.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2008
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
1 |
|
|
|
|
2 |
|
|
|
|
2 |
|
|
|
|
3 |
|
|
|
|
3 |
|
|
|
|
3 |
|
|
|
|
4 |
|
|
|
|
5 |
|
|
|
|
5 |
|
|
|
|
5 |
|
|
|
|
6 |
|
|
|
|
6 |
|
|
|
|
7 |
|
|
|
|
10 |
|
|
|
|
21 |
|
|
|
|
23 |
|
|
|
|
26 |
|
|
|
|
27 |
|
|
|
|
28 |
|
|
|
|
31 |
|
|
|
|
35 |
|
|
|
|
36 |
|
|
|
|
37 |
|
EX-5.1 |
EX-23.2 |
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission, or the SEC, utilizing a shelf registration process. Under this shelf
registration process, we may sell any combination of the securities registered in one or more
offerings, up to a total dollar amount of $250,000,000. This prospectus provides you with general
information. We will provide a prospectus supplement that contains specific information about any
offering by us.
The prospectus supplement also may add, update, or change information contained in the
prospectus. You should read both this prospectus and the prospectus supplement related to any
offering as well as additional information described under the heading Where You Can Find More
Information.
We have not authorized anyone to provide you with information different from that contained or
incorporated by reference in this prospectus or any accompanying prospectus supplement or any free
writing prospectus. We are offering to sell, and seeking offers to buy, securities only in
jurisdictions in which offers and sales are permitted. The information contained in this
prospectus and in any accompanying prospectus supplement is accurate only as of the date of their
covers, regardless of the time of delivery of this prospectus or any prospectus supplement or of
any sale of our securities. Our business, financial condition, results of operations, and
prospects may have changed since those dates. You should rely only on the information contained or
incorporated by reference in this prospectus or any accompanying prospectus supplement. To the
extent there is a conflict between the information contained in this prospectus and the prospectus
supplement, you should rely on the information in the prospectus supplement, provided that if any
statement in one of these documents is inconsistent with a statement in another document having a
later date for example, a document incorporated by reference into this prospectus or any
prospectus supplement the statement in the document having the later date modifies or supersedes
the earlier statement.
In this prospectus, the terms we, our, and us refer to Synaptics Incorporated and its
subsidiaries, unless otherwise specified.
PROSPECTUS SUMMARY
The following summary does not contain all of the information that may be important to
purchasers of our securities. Prospective purchasers of securities should carefully review the
detailed information and financial statements, including the notes thereto, appearing elsewhere in
or incorporated by reference into this prospectus.
Our Company
We are a leading worldwide developer and supplier of custom-designed human interface solutions
that enable people to interact more easily and intuitively with a wide variety of mobile computing,
communications, entertainment, and other electronic devices. We currently target the personal
computer, or PC, market and the market for digital lifestyle products, including mobile
smartphones, portable digital music and video players, and other select electronic device markets
with our customized human interface solutions.
We are a market leader in providing human interface solutions to our target markets. Our
original equipment manufacturer, or OEM, customers include most of the tier one PC OEMs and many of
the worlds largest OEMs for mobile smartphones, and portable digital music players. We generally
supply custom designed human interface solutions to our OEM customers through their contract
manufacturers, which take delivery of our products and pay us directly for them. Through our new
OneTouch offering, we now offer not only our custom module solutions but also enable our customers
to access our technologies to develop their own human interface designs for capacitive buttons and
scrolling applications for products such as mobile smartphones, portable digital music and video
players, and notebook peripherals.
Our Strategy
Our objective is to continue to enhance our position as a leading supplier of human interface
solutions for the PC market and for the markets for digital lifestyle products. Key elements of
our strategy include the following:
|
|
|
extend our technological leadership, |
|
|
|
|
enhance our position in the PC market, |
|
|
|
|
capitalize on growth of new markets, |
|
|
|
|
emphasize and expand customer relationships, |
|
|
|
|
pursue strategic relationships and acquisitions, and |
|
|
|
|
continue virtual manufacturing. |
Our History
We were founded in March 1986 as a California corporation. In January 2002, we effected a
reincorporation of our company in the state of Delaware by merging Synaptics Incorporated, a
California corporation, with and into Synaptics Incorporated, a Delaware corporation.
Our Offices
We maintain our principal executive offices are located at 3120 Scott Blvd., Santa Clara,
California 95054. Our telephone number is (408) 454-5100. Our website is located at
www.synaptics.com. Other than as described in Where You Can Find More Information below, the
information on, or that can be accessed through, our web site is not incorporated by reference in
this prospectus or any prospectus supplement, and you should not consider it to be a part of this
prospectus or any prospectus supplement. Our web site address is included as an inactive textual
reference only.
RISK FACTORS
Investing in our securities involves a high degree of risk. Please see the risk factors
described under the caption Risk Factors in our Annual Report on Form 10-K for the fiscal year
ended June 30, 2008 on file with the SEC, which is incorporated by reference in this prospectus,
and in any accompanying prospectus supplement.
2
Before making an investment decision, you should carefully consider these risks as well as
information we include or incorporate by reference in this prospectus and in any accompanying
prospectus supplement. The risks and uncertainties we have described are not the only ones facing
our company. Additional risks and uncertainties not presently known to us or that we currently
deem immaterial may also affect our business operations.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports; proxy statements; and other information with
the SEC under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Through our
website at www.synaptics.com, you may access, free of charge, our filings, as soon as reasonably
practical after we electronically file them with or furnish them to the SEC. Other information
contained in our website is not incorporated by reference in, and should not be considered a part
of, this prospectus or any accompanying prospectus supplement. You also may read and copy any
document we file at the SECs public reference room at 100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Our
SEC filings are also available to the public from the SECs website at www.sec.gov.
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC to
register the securities offered hereby under the Securities Act of 1933, as amended, or the
Securities Act. This prospectus does not contain all of the information included in the
registration statement, including certain exhibits and schedules. You may obtain the registration
statement and exhibits to the registration statement from the SEC at the address listed above or
from the SECs internet site.
FORWARD-LOOKING STATEMENTS
This prospectus and each prospectus supplement includes and incorporates forward-looking
statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. All statements, other than statements of historical facts, included or incorporated in this
prospectus or any prospectus supplement regarding our strategy, prospects, plans, objectives,
future operations, future revenue and earnings, projected margins and expenses, technological
innovations, future products or product development, product development strategies, potential
acquisitions or strategic alliances, the success of particular product or marketing program, the
amount of revenue generated as a result of sales to significant customers, market environment,
competitive environment, financial position, and liquidity and anticipated cash needs and
availability are forward-looking statements. The words anticipates, believes, estimates,
expects, intends, may, plans, projects, will, would, and similar expressions are
intended to identify forward-looking statements.
Actual results or events could differ materially from the forward-looking statements we make.
Among the factors that could cause actual results to differ materially are the factors discussed
under Risk Factors in our Form 10-K for the fiscal year ended June 30, 2008. We also will
include or incorporate by reference in each prospectus supplement important factors that we believe
could cause actual results or events to differ materially from the forward-looking statements that
we make. Should one or more known or unknown risks or uncertainties materialize, or should
underlying assumptions prove inaccurate, actual results could differ materially from past results
and those anticipated, estimated, projected, or implied by these forward-looking statements. You
should consider these factors and the other cautionary statements made in this prospectus, any
prospectus supplement, or the documents we incorporate by reference in this prospectus as being
applicable to all related forward-looking statements wherever they appear in this prospectus, any
prospectus supplement, or the documents incorporated by reference. While we may elect to update
forward-looking statements wherever they appear in this prospectus, any prospectus supplement, or
the documents incorporated by reference, we do not assume, and specifically disclaim, any
obligation to do so, whether as a result of new information, future events, or otherwise. Our
forward-looking statements do not reflect the potential impact of any future acquisitions, mergers,
dispositions, joint ventures, or investments we may make.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with the SEC, which
means that we can disclose important information to you by referring you to those documents. The
information that we incorporate by reference is considered to be part of this prospectus.
Information that we file with the SEC in the future and
3
incorporate by reference in this prospectus automatically updates and supersedes previously
filed information as applicable.
We incorporate by reference into this prospectus the following documents filed by us with the
SEC, other than any portion of any such documents that are not deemed filed under the Exchange
Act in accordance with the Exchange Act and applicable SEC rules:
|
|
|
Annual Report on Form 10-K for the year ended June 30, 2008. |
|
|
|
|
Quarterly Report on Form 10-Q for the quarter ended September 30, 2008. |
|
|
|
|
|
Quarterly Report on Form 10-Q for the quarter ended December 31, 2008. |
|
|
|
|
|
|
Current Report on Form 8-K filed with the SEC on July 31, 2008. |
|
|
|
|
|
Current Report on Form 8-K filed with the SEC on October 24, 2008. |
|
|
|
|
The information specifically incorporated by reference into our Annual Report on
Form 10-K for the fiscal year ended June 30, 2008 from our definitive proxy statement
filed with the SEC on September 19, 2008. |
|
|
|
|
The description of our common stock contained in the Registration Statement on Form
8-A (Registration No. 000-49602), filed with the SEC on August 16, 2002, including any
amendments or reports filed for the purpose of updating such description. |
We also incorporate by reference into this prospectus all documents (other than any portions
of any such documents that are not deemed filed under the Exchange Act in accordance with the
Exchange Act and applicable SEC rules) filed by us under Section 13(a), 13(c), 14, or 15(d) of the
Exchange Act after the date of the initial registration statement and before effectiveness of the
registration statement, and after the date of this prospectus.
You may request a copy of these filings at no cost, by writing or telephoning us as follows:
Synaptics Incorporated
Attention: Corporate Secretary
3120 Scott Blvd.
Santa Clara, California 95054
(408) 454-5100
Any statement contained in a document that is incorporated by reference will be modified or
superseded for all purposes to the extent that a statement contained in this prospectus or any
accompanying prospectus supplement, or in any other document that is subsequently filed with the
SEC and incorporated by reference, modifies or is contrary to that previous statement. Any
statement so modified or superseded will not be deemed a part of this prospectus or any
accompanying prospectus supplement, except as so modified or superseded. Since information that we
later file with the SEC will update and supersede previously incorporated information, you should
look at all of the SEC filings that we incorporate by reference to determine if any of the
statements in this prospectus or any accompanying prospectus supplement or in any documents
previously incorporated by reference have been modified or superseded.
PROSPECTUS SUPPLEMENTS
This prospectus provides you with a general description of various offerings that we may make
of our securities. Each time that we sell securities under this prospectus, we will provide a
prospectus supplement that will contain specific information about the terms of that offering. The
prospectus supplement may add to, update, or change information contained in this prospectus and
should be read as superseding this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the heading Where You
Can Find More Information.
The prospectus supplement will describe the terms of any offering of securities, including the
offering price to the public in that offering, the purchase price and net proceeds of that
offering, and the other specific terms related to that offering of securities.
4
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the five most recently completed fiscal
years and any required interim periods will each be specified in a prospectus supplement or in a
document that we file with the SEC and incorporate by reference pertaining to the issuance, if any,
by us of debt securities in the future.
DILUTION
We will set forth in a prospectus supplement the following information regarding any material
dilution of the equity interests of investors purchasing securities in an offering under this
prospectus:
|
|
|
the net tangible book value per share of our equity securities before and after the
offering; |
|
|
|
|
the amount of the change in such net tangible book value per share attributable to
the cash payments made by purchasers in the offering; and |
|
|
|
|
the amount of any immediate dilution from the public offering price, which will be
absorbed by such purchasers. |
SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together with the applicable
prospectus supplements, summarize the material terms and provisions of the various types of
securities that we may offer. We will describe in the applicable prospectus supplement relating to
any securities the particular terms of the securities offered by that prospectus supplement. If we
indicate in the applicable prospectus supplement, the terms of the securities may differ from the
terms we have summarized below. We will also include in the prospectus supplement information,
when applicable, about material U.S. federal income tax considerations relating to the securities,
and the securities exchange, if any, on which the securities will be listed.
We may sell from time to time, in one or more offerings, any one or more of the following:
|
|
|
common stock, including the associated rights; |
|
|
|
|
preferred stock; |
|
|
|
|
debt securities; |
|
|
|
|
depositary shares; |
|
|
|
|
warrants to purchase common stock, preferred stock, debt securities, and/or
depositary shares; |
|
|
|
|
purchase contracts; |
|
|
|
|
units, consisting of common stock, preferred stock, debt securities, depositary
shares, and/or warrants in any combination; or |
|
|
|
|
any combination of the foregoing securities. |
In this prospectus, we refer to the common stock (including the associated rights), preferred
stock, debt securities, depositary shares, warrants, purchase contracts, and units collectively as
securities. The total dollar amount of all securities that we may issue under this prospectus
will not exceed $250,000,000.
If we issue debt securities at a discount from their original stated principal amount, then,
for purposes of calculating the total dollar amount of all securities issued under this prospectus,
we will treat the initial offering price of the debt securities as the total original principal
amount of the debt securities.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by
a prospectus supplement.
5
USE OF PROCEEDS
Except as may be otherwise set forth in any prospectus supplement accompanying this
prospectus, we will use the net proceeds we receive from sales of securities offered hereby for
general corporate purposes, which may include the repayment of indebtedness outstanding from time
to time and for working capital, capital expenditures, acquisitions, and repurchases of our common
stock or other securities. Pending these uses, the net proceeds may also be temporarily invested
in cash equivalents or short-term securities.
DESCRIPTION OF COMMON STOCK
This section describes the general terms of our common stock. A prospectus supplement may
provide information that is different from this prospectus. If the information in the prospectus
supplement with respect to our common stock being offered differs from this prospectus, you should
rely on the information in the prospectus supplement. A copy of our certificate of incorporation,
as amended, has been incorporated by reference from our filings with the SEC as an exhibit to the
registration statement of which this prospectus is a part. Our common stock and the rights of the
holders of our common stock are subject to the applicable provisions of the Delaware General
Corporation Law, which we refer to as Delaware law, our certificate of incorporation, as amended,
our amended and restated bylaws, the rights of the holders of our preferred stock, if any, as well
as some of the terms of our credit agreement and any other outstanding indebtedness.
We have the
authority to issue 60,000,000 shares of common stock, par value $0.001 per share, of which
34,043,741 shares of our common stock were outstanding as of January 30, 2009.
The following description of our common stock, and any description of our common stock in a
prospectus supplement, may not be complete and is subject to, and qualified in its entirety by
reference to, Delaware law and the actual terms and provisions contained in our certificate of
incorporation, as amended, and amended and restated bylaws, each as amended from time to time.
Voting Rights
Each outstanding share of our common stock is entitled to one vote per share of record on all
matters submitted to a vote of stockholders and to vote together as a single class for the election
of directors and in respect of other corporate matters. At a meeting of stockholders at which a
quorum is present, for all matters other than the election of directors, a majority of the votes
cast decides all questions, unless the matter is one upon which a different vote is required by
express provision of law or our certificate of incorporation, as amended, or amended and restated
bylaws. Our company has a staggered board of directors divided into three classes, meaning
approximately one-third of the members of the board of directors are elected as a class for a three
year term at each annual stockholder meeting. Directors of each class standing for election will
be elected by a majority of the votes of the shares present at a meeting. Holders of shares of
common stock do not have cumulative voting rights with respect to the election of directors or any
other matter.
Dividends
Holders of our common stock are entitled to receive dividends or other distributions when, as,
and if declared by our board of directors. The right of our board of directors to declare
dividends, however, is subject to any rights of the holders of other classes of our capital stock,
any indebtedness outstanding from time to time, and the availability of sufficient funds under
Delaware law to pay dividends.
Preemptive Rights
The holders of our common stock do not have preemptive rights to purchase or subscribe for any
of our capital stock or other securities.
Redemption
The shares of our common stock are not subject to redemption by operation of a sinking fund or
otherwise.
6
Liquidation Rights
In the event of any liquidation, dissolution, or winding up of our company, subject to the
rights, if any, of the holders of other classes of our capital stock, the holders of shares of our
common stock are entitled to receive any of our assets available for distribution to our
stockholders ratably in proportion to the number of shares held by them.
Options and Other Stock-Based Rights
From time to time, we have issued and expect to continue to issue options, and other
stock-based rights to directors, officers, and employees of our company. As of December 31, 2008,
a total of 7,167,437 shares of common stock were issuable upon exercise of vested options and upon
vesting of deferred stock units.
Listing
Our common stock is listed on the NASDAQ Global Select Market under the symbol SYNA.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust
Company, 59 Maiden Lane, New York, NY 11219.
DESCRIPTION OF PREFERRED STOCK
This section describes the general terms of our preferred stock to which any prospectus
supplement may relate. A prospectus supplement will describe the terms relating to any preferred
stock to be offered by us in greater detail and may provide information that is different from
terms described in this prospectus. If the information in the prospectus supplement with respect
to the particular preferred stock being offered differs from this prospectus, you should rely on
the information in the prospectus supplement. A copy of our certificate of incorporation, as
amended, has been incorporated by reference from our filings with the SEC as an exhibit to the
registration statement of which this prospectus is a part. A designation of rights or certificate
of amendment to our certificate of incorporation will specify the terms of the preferred stock
being offered, and will be filed or incorporated by reference as an exhibit to the registration
statement before the preferred stock is issued. The following description of our preferred stock,
and any description of the preferred stock in a prospectus supplement may not be complete and is
subject to, and qualified in its entirety by reference to, Delaware law and the actual terms and
provisions contained in our certificate of incorporation, as amended, and amended and restated
bylaws, each as amended from time to time.
We have the
authority to issue 10,000,000 shares of preferred stock, par value $0.001 per share, which are
issuable in series on terms to be determined by our board of directors. Accordingly, our board of
directors is authorized, without action by the stockholders, to issue preferred stock from time to
time with the dividend, liquidation, conversion, voting, and other rights and restrictions as it
may determine. All shares of any one series of our preferred stock will be identical, except that
shares of any one series issued at different times may differ as to the dates from which dividends
may be cumulative. All series shall rank equally and shall provide for other terms as described in
the applicable prospectus supplement. As of December 31, 2008, there were no issued and
outstanding shares of our preferred stock.
Terms of Preferred Stock
Unless provided in a prospectus supplement, the shares of our preferred stock to be issued
will have no preemptive rights. Any prospectus supplement offering our preferred stock will
furnish the following information with respect to the preferred stock offered by that prospectus
supplement:
|
|
|
the title and stated value of the preferred stock; |
|
|
|
|
the number of shares of preferred stock to be issued and the offering price of the
preferred stock; |
|
|
|
|
any dividend rights; |
7
|
|
|
any dividend rates, periods, or payment dates, or methods of calculation of
dividends applicable to the preferred stock; |
|
|
|
|
the date from which distributions on the preferred stock will accumulate, if
applicable; |
|
|
|
|
the terms and conditions, if applicable, upon which the preferred stock will be
convertible into our common stock, including the conversion price (or manner of
calculation thereof); |
|
|
|
|
any right to convert the preferred stock into a different type of security; |
|
|
|
|
any voting rights attributable to the preferred stock; |
|
|
|
|
any rights and preferences upon our liquidation or winding up of our affairs; |
|
|
|
|
any terms of redemption; |
|
|
|
|
the procedures for any auction and remarketing, if any, for the preferred stock; |
|
|
|
|
the provisions for a sinking fund, if any, for the preferred stock; |
|
|
|
|
any listing of the preferred stock on any securities exchange; |
|
|
|
|
a discussion of federal income tax considerations applicable to the preferred stock; |
|
|
|
|
the relative ranking and preferences of the preferred stock as to distribution
rights (including whether any liquidation preference as to the preferred stock will be
treated as a liability for purposes of determining the availability of assets for
distributions to holders of stock ranking junior to the shares of preferred stock as to
distribution rights); |
|
|
|
|
any limitations on issuance of any series of preferred stock ranking senior to or on
a parity with the series of preferred stock being offered as to distribution rights and
rights upon the liquidation, dissolution, or winding up or our affairs; and |
|
|
|
|
any other specific terms, preferences, rights, limitations, or restrictions of the
preferred stock. |
Rank
Unless otherwise indicated in the applicable prospectus supplement, shares of our preferred
stock will rank, with respect to payment of distributions and rights upon our liquidation,
dissolution, or winding up, and allocation of our earnings and losses:
|
|
|
senior to all classes or series of our common stock and to all of our equity
securities ranking junior to the preferred stock; |
|
|
|
|
on a parity with all equity securities issued by us, the terms of which specifically
provide that these equity securities rank on a parity with the preferred stock; and |
|
|
|
|
junior to all equity securities issued by us, the terms of which specifically
provide that these equity securities rank senior to the preferred stock. |
Distributions
Subject to any preferential rights of any outstanding stock or series of stock, our preferred
stockholders will be entitled to receive distributions when, as, and if declared by our board of
directors, out of legally available funds and to share pro rata based on the number of preferred
shares, common stock, and other parity equity securities outstanding. The rates and dates of
payment of dividends will be set forth in the prospectus supplement relating to the applicable
series of preferred stock. Dividends will be payable to holders of record of preferred stock as
they appear on our books or, if applicable, the records of the depositary referred to below on the
record dates fixed by the board of directors. Dividends on a series of preferred stock may be
cumulative or noncumulative.
8
We may not declare, pay, or set apart for payment dividends on the preferred stock unless full
dividends on other series of preferred stock that rank on an equal or senior basis have been paid
or sufficient funds have been set apart for payment for
|
|
|
all prior dividend periods of other series of preferred stock that pay dividends on
a cumulative basis; or |
|
|
|
|
the immediately preceding dividend period of other series of preferred stock that
pay dividends on a noncumulative basis. |
Partial dividends declared on shares of preferred stock and each other series of preferred
stock ranking on an equal basis as to dividends will be declared pro rata. A pro rata declaration
means that the ratio of dividends declared per share to accrued dividends per share will be the
same for each series of preferred stock. Similarly, we may not declare, pay, or set apart for
payment non-stock dividends or make other payments on the common stock or any other of our stock
ranking junior to the preferred stock until full dividends on the preferred stock have been paid or
set apart for payment for
|
|
|
all prior dividend periods if the preferred stock pays dividends on a cumulative
basis; or |
|
|
|
|
the immediately preceding dividend period if the preferred stock pays dividends on a
noncumulative basis. |
Voting Rights
Unless otherwise indicated in the applicable prospectus supplement, holders of our preferred
stock will not have any voting rights.
Liquidation Preference
Upon the voluntary or involuntary liquidation, dissolution, or winding up of our affairs,
then, before any distribution or payment shall be made to the holders of any common stock or any
other class or series of stock ranking junior to the preferred stock in our distribution of assets
upon any liquidation, dissolution, or winding up, the holders of each series of our preferred stock
will be entitled to receive, after payment or provision for payment of our debts and other
liabilities, out of our assets legally available for distribution to stockholders, liquidating
distributions in the amount of the liquidation preference per share (set forth in the applicable
prospectus supplement), plus an amount, if applicable, equal to all distributions accrued and
unpaid thereon (which shall not include any accumulation in respect of unpaid distributions for
prior distribution periods if the preferred stock does not have a cumulative distribution). Unless
otherwise specified in the applicable prospectus supplement, after payment of the full amount of
the liquidating distributions to which they are entitled, the holders of preferred stock will have
no right or claim to any of our remaining assets. In the event that, upon our voluntary or
involuntary liquidation, dissolution, or winding up, the legally available assets are insufficient
to pay the amount of the liquidating distributions on all of our outstanding preferred stock and
the corresponding amounts payable on all of our other classes or series of equity securities
ranking on a parity with the preferred stock in the distribution of assets upon liquidation,
dissolution, or winding up, then the holders of our preferred stock and all other such classes or
series of equity securities will share ratably in the distribution of assets in proportion to the
full liquidating distributions to which they would otherwise be respectively entitled.
If the liquidating distributions are made in full to all holders of preferred stock, our
remaining assets will be distributed among the holders of any other classes or series of equity
security ranking junior to the preferred stock upon our liquidation, dissolution, or winding up,
according to their respective rights and preferences and in each case according to their respective
number of shares of stock.
Conversion Rights
The terms and conditions, if any, upon which shares of any series of preferred stock are
convertible into other securities will be set forth in the applicable prospectus supplement. These
terms will include the amount and type of security into which the shares of preferred stock are
convertible, the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders
9
of the preferred stock or us, the events requiring an adjustment of the conversion price, and
provisions affecting conversion in the event of the redemption of that preferred stock.
Redemption
If so provided in the applicable prospectus supplement, our preferred stock will be subject to
mandatory redemption or redemption at our option, in whole or in part, in each case upon the terms,
at the times, and at the redemption prices set forth in such prospectus supplement. Unless we
default in the payment of the redemption price, dividends will cease to accrue after the redemption
date on shares of preferred stock called for redemption and all rights of holders of such shares
will terminate, except for the right to receive the redemption price. No series of preferred stock
will receive the benefit of a sinking fund except as set forth in the applicable prospectus
supplement.
Registrar and Transfer Agent
The registrar and transfer agent for our preferred stock will be set forth in the applicable
prospectus supplement.
If our board of directors decides to issue any preferred stock, it may discourage or make more
difficult a merger, tender offer, business combination, or proxy contest, assumption of control by
a holder of a large block of our securities, or the removal of incumbent management, even if these
events were favorable to the interests of stockholders. Our board of directors, without
stockholder approval, may issue preferred stock with voting and conversion rights and dividend and
liquidation preferences that may adversely affect the holders of our other equity or debt
securities.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of the debt securities we may
offer under this prospectus and one or more prospectus supplements. When we offer to sell a
particular series of debt securities, we will describe the specific terms of the series in a
prospectus supplement. The following description of debt securities will apply to the debt
securities offered by this prospectus unless we provide otherwise in the applicable prospectus
supplement. The applicable prospectus supplement for a particular series of debt securities may
specify different or additional terms.
We may issue senior, senior subordinated, or subordinated debt securities. Senior
securities will be direct obligations of ours and will rank equally and ratably in right of
payment with other indebtedness of ours that is not subordinated. Senior subordinated securities
will be subordinated in right of payment to the prior payment in full of senior indebtedness, as
defined in the applicable prospectus supplement, and may rank equally and ratably with the senior
subordinated notes and any other senior subordinated indebtedness. Subordinated securities will
be subordinated in right of payment to senior subordinated securities.
We need not issue all debt securities of one series at the same time. Unless we provide
otherwise, we may reopen a series, without the consent of the holders of such series, for issuances
of additional securities of that series.
We will issue senior debt securities and senior subordinated debt securities under a senior
indenture, which we will enter into with the trustee to be named in the senior indenture, and we
will issue the subordinated debt securities under a subordinated indenture, which we will enter
into with the trustee to be named in the subordinated indenture. We use the term indenture or
indentures to refer to both the senior indenture and the subordinated indenture. Each indenture
will be subject to and governed by the Trust Indenture Act of 1939, as amended, or the Trust
Indenture Act, and we may supplement the indenture from time to time. Any trustee under any
indenture may resign or be removed with respect to one or more series of debt securities, and we
may appoint a successor trustee to act with respect to that series. We have filed a form of
indenture between us as the issuer and American Stock Transfer and Trust Company as the indenture
trustee, as an exhibit to this registration statement, of which this prospectus forms a part. The
terms of the senior indenture and subordinated indenture will be substantially similar, except that
the subordinated indenture will include provisions pertaining to the subordination of the
subordinated debt securities and senior subordinated debt securities to the senior debt securities
and any other of our senior securities. The following statements relating to the debt securities
and the indenture are summaries only, are subject
10
to change, and are qualified in their entirety to the detailed provisions of the indenture,
any supplemental indenture, and the discussion contained in any prospectus supplements.
General
The debt securities will be our direct obligations. We may issue debt securities from time to
time and in one or more series as our board of directors may establish by resolution or as we may
establish in one or more supplemental indentures. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to the series. We may issue debt
securities with terms different from those of debt securities that we previously issued.
We may issue debt securities from time to time and in one or more series with the same or
various maturities, at par, at a premium, or at a discount. We will set forth in a prospectus
supplement, relating to any series of debt securities being offered, the initial offering price,
and the following terms of the debt securities:
|
|
|
the title of the debt securities; |
|
|
|
|
the series designation and whether they are senior securities, senior subordinated
securities, or subordinated securities; |
|
|
|
|
the aggregate principal amount of the debt securities and any limit on the aggregate
amount of the series of debt securities; |
|
|
|
|
the price or prices (expressed as a percentage of the aggregate principal amount) at
which we will issue the debt securities and, if other than the principal amount of the
debt securities, the portion of the principal amount of the debt securities payable
upon the maturity of the debt securities; |
|
|
|
|
the date or dates on which we will pay the principal on the debt securities; |
|
|
|
|
the rate or rates (which may be fixed or variable) per annum or the method used to
determine the rate or rates (including any commodity, commodity index, stock exchange
index, or financial index) at which the debt securities will bear interest, the date or
dates from which interest will accrue, the date or dates on which interest will
commence and be payable, and any regular record date for the interest payable on any
interest payment date; |
|
|
|
|
the place where principal, interest, and any additional amounts will be payable and
where the debt securities can be surrendered for transfer, exchange, or conversion; |
|
|
|
|
the terms, if any, by which holders of the debt securities may convert or exchange
the debt securities for our common stock, preferred stock, or any other security or
property; |
|
|
|
|
if convertible, the initial conversion price, the conversion period, and any other
terms governing such conversion; |
|
|
|
|
any subordination provisions or limitations relating to the debt securities; |
|
|
|
|
any sinking fund requirements; |
|
|
|
|
any obligation we have to redeem or purchase the debt securities pursuant to any
sinking fund or analogous provisions or at the option of a holder of debt securities; |
|
|
|
|
the dates on which and the price or prices at which we will repurchase the debt
securities at the option of the holders of debt securities and other detailed terms and
provisions of these repurchase obligations; |
|
|
|
|
the denominations in which the debt securities will be issued, if other than
denominations of $1,000 and any integral multiple thereof; |
|
|
|
|
the portion of principal amount of the debt securities payable upon declaration of
acceleration of the maturity date, if other than the principal amount; |
|
|
|
|
whether we will issue the debt securities in certificated or book-entry form; |
11
|
|
|
whether the debt securities will be in registered or bearer form and, if in
registered form, the denominations if other than in even multiples of $1,000 and, if in
bearer form, the denominations and terms and conditions relating thereto; |
|
|
|
|
the designation of the currency, currencies, or currency units in which payment of
principal of, premium, and interest on the debt securities will be made; |
|
|
|
|
if payments of principal of, and interest and any additional amounts on, the debt
securities will be made in one or more currencies or currency units other than that or
those in which the debt securities are denominated, the manner in which the exchange
rate with respect to these payments will be determined; |
|
|
|
|
the manner in which the amounts of payment of principal of, and interest and any
additional amounts on, the debt securities will be determined, if these amounts may be
determined by reference to an index based on a currency or currencies other than that
in which the debt securities are denominated or designated to be payable or by
reference to a commodity, commodity index, stock exchange index, or financial index; |
|
|
|
|
any applicability of the defeasance provisions described in this prospectus or any
prospectus supplement; |
|
|
|
|
whether and under what circumstances, if any, we will pay additional amounts on any
debt securities in respect of any tax, assessment, or governmental charge and, if so,
whether we will have the option to redeem the debt securities instead of making this
payment; |
|
|
|
|
any addition to or change in the events of default described in this prospectus or
in the indenture with respect to the debt securities and any change in the acceleration
provisions described in this prospectus or in the indenture with respect to the debt
securities; |
|
|
|
|
any addition to or change in the covenants described in this prospectus or in the
indenture with respect to the debt securities; |
|
|
|
|
if the debt securities are to be issued upon the exercise of debt warrants, the
time, manner, and place for them to be authenticated and delivered; |
|
|
|
|
any securities exchange on which we will list the debt securities; |
|
|
|
|
any restrictions on transfer, sale, or other assignment; |
|
|
|
|
any provisions relating to any security provided for the debt securities; |
|
|
|
|
any provisions relating to any guarantee of the debt securities; |
|
|
|
|
any other terms of the debt securities, which may modify or delete any provision of
the indenture as it applies to that series; and |
|
|
|
|
any depositaries, interest rate calculation agents, exchange rate calculation
agents, or other agents with respect to the debt securities. |
We may issue debt securities that are exchangeable for or convertible into shares of our
common stock or other securities or property. The terms, if any, on which the debt securities may
be exchanged for or converted into shares of our common stock or other securities or property will
be set forth in the applicable prospectus supplement. Such terms may include provisions for
conversion, either mandatory, at the option of the holder, or at our option, in which case the
number of shares of common stock or other securities or property to be received by the holders of
debt securities would be calculated as of a time and in the manner stated in the prospectus
supplement.
We may issue debt securities at less than the principal amount payable upon maturity. We
refer to these securities as original issue discount securities. If material or applicable, we
will describe in the applicable prospectus supplement special U.S. federal income tax, accounting,
and other considerations applicable to original issue discount securities.
12
If we denominate the purchase price of any of the debt securities in a foreign currency or
currencies or a foreign currency unit or units, or if the principal of, and interest and any
additional amounts on any series of debt securities is payable in a foreign currency or currencies
or a foreign currency unit or units, we will provide you with information on the restrictions,
elections, general tax considerations, specific terms, and other information with respect to that
issue of debt securities and such foreign currency or currencies or foreign currency unit or units
in the applicable prospectus supplement.
Except as may be set forth in any prospectus supplement relating to the debt securities, an
indenture will not contain any other provisions that would limit our ability to incur indebtedness
or that would afford holders of the debt securities protection in the event of a highly leveraged
or similar transaction involving us or in the event of a change in control. You should review
carefully the applicable prospectus supplement for information with respect to events of default
and any covenants applicable to the debt securities being offered.
Payments and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of
the interest on any debt securities on any interest payment date to the person in whose name the
debt securities, or one or more predecessor securities, are registered at the close of business on
the regular record date for the interest.
We will pay principal of, and interest and any additional amounts on, the debt securities of a
particular series at the office of the paying agents designated by us, except that, unless we
otherwise indicate in the applicable prospectus supplement, we may make interest payments by check,
which we will mail to the holder, or by wire transfer to certain holders. Unless we otherwise
indicate in a prospectus supplement, we will designate the corporate trust office of the trustee as
our sole paying agent for payments with respect to debt securities of each series. We will name in
the applicable prospectus supplement any other paying agents that we initially designate for the
debt securities of a particular series.
Form, Transfer, and Exchange
Each debt security will be represented by either one or more global securities registered in
the name of The Depository Trust Company, as depositary, or a nominee of the depositary (as a
book-entry debt security), or a certificate issued in definitive registered form (as a
certificated debt security), as described in the applicable prospectus supplement. Except as
described under Global Debt Securities and Book-Entry System below, book-entry debt securities
will not be issuable in certificated form.
Certificated Debt Securities
You may transfer or exchange certificated debt securities at the trustees office or paying
agencies in accordance with the terms of the indenture. No service charge will be made for any
transfer or exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with a transfer or
exchange.
You may transfer certificated debt securities and the right to receive the principal of, and
interest and any additional amounts on certificated debt securities only by surrendering the old
certificate representing those certificated debt securities and either we or the trustee will
reissue the old certificate to the new holder, or we or the trustee will issue a new certificate to
the new holder.
Global Debt Securities and Book-Entry System
Each global debt security representing book-entry debt securities will be deposited with, or
on behalf of, the depositary, and registered in the name of the depositary or a nominee of the
depositary. Ownership of beneficial interests in book-entry debt securities will be limited to
persons that have accounts with the depositary for the related global debt security, whom we refer
to as participants, or persons that may hold interests through participants.
Except as described in this prospectus or any applicable prospectus supplement, beneficial
owners of book-entry debt securities will not be entitled to have securities registered in their
names, will not receive or be entitled to
13
receive physical delivery of a certificate in definitive form representing securities, and
will not be considered the owners or holders of those securities under the indenture. Accordingly,
to exercise any rights of a holder under the indenture, each person beneficially owning book-entry
debt securities must rely on the procedures of the depositary for the related global debt security
and, if that person is not a participant, on the procedures of the participant through which that
person owns its interest.
We understand, however, that under existing industry practice, the depositary will authorize
the persons on whose behalf it holds a global debt security to exercise certain rights of holders
of debt securities, and the indenture provides that we, the trustee, and our respective agents will
treat as the holder of a debt security the persons specified in a written statement of the
depositary with respect to that global debt security for purposes of obtaining any consents or
directions required to be given by holders of the debt securities pursuant to the indenture.
We will make payments of principal of, and interest and any additional amounts on, book-entry
debt securities to the depositary or its nominee, as the case may be, as the registered holder of
the related global debt security. We, the trustee, and any other agent of ours or agent of the
trustee will not have any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a global debt security or for
maintaining, supervising, or reviewing any records relating to such beneficial ownership interests.
Any certificated debt securities issued in exchange for a global debt security will be
registered in such name or names as the depositary shall instruct the trustee. We expect that such
instructions will be based upon directions received by the depositary from participants with
respect to ownership of book-entry debt securities relating to such global debt security.
For additional discussion of book entry and certificated securities, see the section entitled
Legal Ownership of Securities included in this prospectus. We have obtained the foregoing
information in this section and the Legal Ownership of Securities section concerning the
depositary and the depositarys book-entry system from sources we believe to be reliable. We take
no responsibility for the depositarys performance of its obligations under the rules and
regulations governing its operations.
No Protection in the Event of a Change in Control
Unless we provide otherwise in the applicable prospectus supplement, the debt securities will
not contain any provisions that may afford holders of the debt securities protection in the event
we have a change in control or in the event of a highly leveraged transaction (whether or not such
transaction results in a change in control).
Covenants
Unless we provide otherwise in the applicable prospectus supplement, the debt securities will
not contain any restrictive covenants, including covenants restricting us or any of our
subsidiaries from incurring, issuing, assuming, or guaranteeing any indebtedness secured by a lien
on any of our or our subsidiaries property or capital stock or restricting us or any of our
subsidiaries from entering into any sale and leaseback transactions.
Merger, Consolidation, and Sale of Assets
Unless we provide otherwise in the applicable prospectus supplement, we may not merge with or
into or consolidate with, or convey, transfer, or lease all or substantially all of our properties
and assets to, any person (a successor person), and we may not permit any person to merge into,
or convey, transfer, or lease its properties and assets substantially as an entirety to us, unless
the following applies:
|
|
|
either (a) the company is the surviving entity or (b) the successor person is a
corporation, partnership, trust, or other entity organized and validly existing under
the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the
debt securities and under the indenture; |
|
|
|
|
immediately after giving effect to the transaction, no event of default, and no
event that, after notice or lapse of time, or both, would become an event of default,
shall have occurred and be continuing under the indenture; and |
14
|
|
|
certain other conditions that may be set forth in the applicable prospectus
supplement are met. |
This covenant would not apply to any recapitalization transaction, a change in control of us,
or a transaction in which we incur a large amount of additional debt unless the transactions or
change in control included a merger, consolidation, or transfer or lease of substantially all of
our assets. Except as may be described in the applicable prospectus supplement, there are no
covenants or other provisions in the indenture providing for a put right or increased interest or
that would otherwise afford holders of debt securities additional protection in the event of a
recapitalization transaction, a change in control of us, or a transaction in which we incur a large
amount of additional debt.
Events of Default Under the Indenture
Unless we provide otherwise in the applicable prospectus supplement, an event of default
will mean, with respect to any series of debt securities, any of the following:
|
|
|
default in the payment of any interest upon any debt security of that series when it
becomes due and payable and continuance of that default for a period of 30 days (unless
the entire amount of such payment is deposited by us with the trustee or with a paying
agent before the expiration of the 30-day period); |
|
|
|
|
default in the payment of principal of, and any other amounts due on, any debt
security of that series when due and payable either at maturity, redemption, or
otherwise; |
|
|
|
|
default in the deposit of any sinking fund payment, when and as due in respect of
any debt security of that series; |
|
|
|
|
default in the performance or breach of any other covenant or warranty by us in the
indenture (other than a covenant or warranty that has been included in the indenture
solely for the benefit of a series of debt securities other than that series) or in the
debt security, which default continues uncured for a period of 60 days after we receive
written notice from the trustee or we and the trustee receive written notice from the
holders of not less than a majority in principal amount of the outstanding debt
securities of that series as provided in the indenture; |
|
|
|
|
we, pursuant to or within the meaning of any applicable bankruptcy law, commence a
voluntary case, consent to the entry of an order for relief against us in an
involuntary case, consent to the appointment of a custodian for all or substantially
all of our property, make a general assignment for the benefit of our creditors, or
admit in writing our inability generally to pay our debts as they become due; or,
similarly, a court enters an order or decree under any applicable bankruptcy law that
provides for relief against us in an involuntary case, appoints a custodian for all or
substantially all of our properties, or orders our liquidation (and the order remains
in effect for 60 days); and |
|
|
|
|
any other event of default provided with respect to debt securities of that series
that is included in any supplemental indenture or is described in the applicable
prospectus supplement accompanying this prospectus. |
No event of default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency, or reorganization) necessarily will constitute an event
of default with respect to any other series of debt securities. An event of default may also be an
event of default under our bank credit agreements or other debt securities in existence from time
to time and under certain guaranties by us of any subsidiary indebtedness. In addition, certain
events of default or an acceleration under the indenture may also be an event of default under some
of our other indebtedness outstanding from time to time.
Unless we provide otherwise in the applicable prospectus supplement, if an event of default
with respect to debt securities of any series at the time outstanding occurs and is continuing
(other than certain events of our bankruptcy, insolvency, or reorganization), then the trustee or
the holders of not less than a majority in principal amount of the outstanding debt securities of
that series may, by written notice to us (and to the trustee if given by the holders), declare to
be due and payable immediately the principal (or, if the debt securities of that series are
discount securities, that portion of the principal amount as may be specified in the terms of that
series) of and accrued and unpaid interest, if any, of all debt securities of that series. In the
case of an event of default resulting from certain
15
events of bankruptcy, insolvency, or reorganization, the principal (or such specified amount)
of and accrued and unpaid interest, if any, of all outstanding debt securities will become and be
immediately due and payable without any declaration or other act by the trustee or any holder of
outstanding debt securities.
At any time after an acceleration with respect to debt securities of a series has been made,
but before a judgment or decree for payment of the money due has been obtained by the trustee, the
holders of not less than a majority in principal amount of the outstanding debt securities of that
series may cancel the acceleration and annul its consequences if the rescission would not conflict
with any judgment or decree and if all existing events of default with respect to that series have
been cured or waived except nonpayment of principal (or such lesser amount) or interest that has
become due solely because of the acceleration.
The indenture also provides that the holders of not less than a majority in principal amount
of the outstanding debt securities of any series may waive any past default with respect to that
series and its consequences, except a default involving the following:
|
|
|
our failure to pay the principal of, and interest and any additional amounts on, any
debt security; or |
|
|
|
|
a covenant or provision contained in the indenture that cannot be modified or
amended without the consent of the holders of each outstanding debt security affected
by the default. |
The trustee is generally required to give notice to the holders of debt securities of each
affected series within 90 days of a default actually known to a responsible officer of the trustee
unless the default has been cured or waived. The indenture provides that the trustee may withhold
notice to the holders of debt securities of any series of any default or event of default (except
in payment on any debt securities of that series) with respect to debt securities of that series if
it in good faith determines that withholding notice is in the interest of the holders of those debt
securities.
Unless we provide otherwise in the applicable prospectus supplement, the indenture will
provide that the trustee will be under no obligation to exercise any of its rights or powers under
the indenture at the request or discretion of any holder of any such outstanding debt securities
unless the trustee receives indemnity satisfactory to it against any loss, liability, or expense.
Subject to certain rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series will have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the trustee or exercising any trust or
power conferred on the trustee with respect to the debt securities of that series. The trustee
may, however, refuse to follow any discretion that conflicts with the indenture or any law or which
may be unduly prejudicial to the holders of the debt securities of the applicable series not
joining in the discretion.
Unless we provide otherwise in the applicable prospectus supplement, no holder of any debt
security of any series will have any right to institute any proceeding, judicial or otherwise, with
respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under
the indenture, unless
|
|
|
that holder has previously given to the trustee written notice of a continuing event
of default with respect to debt securities of that series; and |
|
|
|
|
the holders of at least 25% in principal amount of the outstanding debt securities
of that series have made written request, and offered reasonable indemnity, to the
trustee to institute such proceeding as trustee, and the trustee shall not have
received from the holders of a majority in principal amount of the outstanding debt
securities of that series a direction inconsistent with that request and has failed to
institute the proceeding within 60 days. |
Notwithstanding the foregoing, except as provided in the subordination provisions, if any, the
holder of any debt security will have an absolute and unconditional right to receive payment of the
principal of, and any interest or additional amounts on, that debt security on or after the due
dates expressed in that debt security and to institute suit for the enforcement of payment.
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the
trustee a certificate as to compliance with the indenture, or, in the event of noncompliance,
specify the noncompliance and the nature and status of the noncompliance.
16
Modification of Indenture and Waiver
Except as specified below, modifications and amendments to the indenture require the approval
of not less than a majority in principal amount of our outstanding debt securities.
Changes Requiring the Unanimous Approval
We and the trustee may not make any modification or amendment to the indenture without the
consent of the holder of each affected debt security then outstanding if that amendment will have
any of the following results:
|
|
|
reduce the rate of or extend the time for payment of interest, including default
interest, on any debt security; |
|
|
|
|
reduce the principal of or any additional amounts on or change the fixed maturity of
any debt security or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation with respect to any series of debt
securities; |
|
|
|
|
reduce the principal amount of discount securities payable upon acceleration of
maturity; |
|
|
|
|
waive a default in the payment of the principal of, and interest or any additional
amounts on, any debt security, except a rescission of acceleration of the debt
securities of any series by the holders of at least a majority in aggregate principal
amount of the then outstanding debt securities of that series and a waiver of the
payment default that resulted from that acceleration; |
|
|
|
|
make the principal of, or interest or any additional amounts on, any debt security
payable in currency other than that stated in the debt security; |
|
|
|
|
change the place of payment on a debt security; |
|
|
|
|
change the currency or currencies of payment of the principal of, and any premium,
make-whole payment, interest, or additional amounts on, any debt security; |
|
|
|
|
impair the right to initiate suit for the enforcement of any payment on or with
respect to any debt security; |
|
|
|
|
reduce the percentage of holders of debt securities whose consent is needed to
modify or amend the indenture, to waive compliance with certain provisions of the
indenture, or to waive certain defaults under the indenture; |
|
|
|
|
reduce the percentage of the holders of outstanding debt securities of any series
necessary to modify or amend the indenture, to waive compliance with provisions of the
indenture or defaults and their consequences under the indenture, or to reduce the
quorum or voting requirements contained in the indenture; |
|
|
|
|
make any change that adversely affects the right to convert or exchange any debt
security other than as permitted by the indenture or decrease the conversion or
exchange rate or increase the conversion or exchange price of any such debt security; |
|
|
|
|
waive a redemption payment with respect to any debt security; or |
|
|
|
|
make any change to certain provisions of the indenture relating to, among other
things, the right of holders of debt securities to receive payment of the principal of,
and interest and any additional amount on, those debt securities, the right of holders
to institute suit for the enforcement of any payment, or the right of holders to waive
past defaults. |
Changes Not Requiring Approval of Debt Holders
We and the trustee may modify or amend an indenture, without the consent of any holder of debt
securities, for any of the following purposes:
|
|
|
to evidence the succession of another person to us as obligor under the indenture; |
17
|
|
|
to add to our existing covenants additional covenants for the benefit of the holders
of all or any series of debt securities, or to surrender any right or power conferred
upon us in the indenture; |
|
|
|
|
to add events of default for the benefit of the holders of all or any series of debt
securities; |
|
|
|
|
to add or change any provisions of the indenture to facilitate the issuance of, or
to liberalize the terms of, debt securities in bearer form, or to permit or facilitate
the issuance of debt securities in uncertificated form, provided that this action will
not adversely affect the interests of the holders of the debt securities of any series
in any material respect; |
|
|
|
|
to add, change, or eliminate any provisions of the indenture, provided that any
addition, change, or elimination (a) shall neither (i) apply to any debt security of
any series created prior to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (ii) modify the rights of the holder of any debt
security with respect to such provision, or (b) shall become effective only when there
are no outstanding debt securities; |
|
|
|
|
to establish additional series of debt securities; |
|
|
|
|
to secure previously unsecured debt securities; |
|
|
|
|
to establish the form or terms of debt securities of any series, including the
provisions and procedures, if applicable, for the conversion or exchange of the debt
securities into our common stock, preferred stock, or other securities or property; |
|
|
|
|
to evidence and provide for the acceptance or appointment of a successor trustee or
facilitate the administration of the trusts under the indenture by more than one
trustee; |
|
|
|
|
to make any provision with respect to the conversion or exchange of rights of
holders pursuant to the requirements of the indenture; |
|
|
|
|
to cure any ambiguity, defect, or inconsistency in the indenture, provided that the
action does not adversely affect the interests of holders of debt securities of any
series issued under the indenture; |
|
|
|
|
to close the indenture with respect to the authentication and delivery of additional
series of debt securities or to qualify, or maintain qualification of, the indenture
under the Trust Indenture Act; or |
|
|
|
|
to supplement any of the provisions of the indenture to the extent necessary to
permit or facilitate defeasance and discharge of any series of debt securities,
provided that the action shall not adversely affect the interests of the holders of the
debt securities of any series in any material respect. |
A vote by holders of debt securities will not be required for clarifications and certain other
changes that would not adversely affect holders of the debt securities.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance
Unless the terms of the applicable series of debt securities provide otherwise, we may be
discharged from any and all obligations in respect of the debt securities of any series (except for
certain obligations to register the transfer or exchange of debt securities of the series; to
replace stolen, lost, or mutilated debt securities of the series; and to maintain paying agencies
and certain provisions relating to the treatment of funds held by paying agents). We will be so
discharged upon the deposit with the trustee, in trust, of money and/or U.S. government obligations
or, in the case of debt securities denominated in a single currency other than U.S. dollars,
foreign government obligations (as described at the end of this section), that, through the payment
of interest and principal in accordance with their terms, will provide money in an amount
sufficient to pay and discharge each installment of principal, interest, and any additional amounts
on and any mandatory sinking fund payments in respect of the debt securities of that series on the
stated maturity of such payments in accordance with the terms of the indenture and those debt
securities.
This discharge may occur only if, among other things, we have delivered to the trustee an
officers certificate and an opinion of counsel stating that we have received from, or there has
been published by, the U.S.
18
Internal Revenue Service a ruling or, since the date of execution of the indenture, there has
been a change in the applicable U.S. federal income tax law, in either case to the effect that
holders of the debt securities of such series will not recognize income, gain, or loss for U.S.
federal income tax purposes as a result of the deposit, defeasance, and discharge and will be
subject to U.S. federal income tax on the same amount and in the same manner and at the same times
as would have been the case if the deposit, defeasance, and discharge had not occurred.
Defeasance of Certain Covenants
Unless the terms of the applicable series of debt securities provide otherwise, upon
compliance with certain conditions, we may omit to comply with the restrictive covenants contained
in the indenture, as well as any additional covenants contained in the applicable prospectus
supplement.
The conditions include, among others, the following:
|
|
|
depositing with the trustee money and/or U.S. government obligations or, in the case
of debt securities denominated in a single currency other than U.S. dollars, foreign
government obligations, that, through the payment of interest and principal in
accordance with their terms, will provide money in an amount sufficient, in the opinion
of a nationally recognized firm of independent public accountants, to pay principal,
interest, and any additional amounts on and any mandatory sinking fund payments in
respect of the debt securities of that series on the stated maturity of those payments
in accordance with the terms of the indenture and those debt securities; and |
|
|
|
|
delivering to the trustee an opinion of counsel to the effect that the holders of
the debt securities of that series will not recognize income, gain, or loss for U.S.
federal income tax purposes as a result of the deposit and related covenant defeasance
and will be subject to U.S. federal income tax in the same amount and in the same
manner and at the same times as would have been the case if the deposit and related
covenant defeasance had not occurred. |
Covenant Defeasance and Events of Default
If we exercise our option, as described above, not to comply with certain covenants of the
indenture with respect to any series of debt securities, and the debt securities of that series are
declared due and payable because of the occurrence of any event of default, the amount of money
and/or U.S. government obligations or foreign government obligations on deposit with the trustee
will be sufficient to pay amounts due on the debt securities of that series at the time of their
stated maturity but may not be sufficient to pay amounts due on the debt securities of that series
at the time of the acceleration resulting from the event of default. However, we will remain
liable for those payments.
Foreign government obligations means, with respect to debt securities of any series that are
denominated in a currency other than United States dollars:
|
|
|
direct obligations of the government that issued or caused to be issued such
currency for the payment of which obligations its full faith and credit is pledged,
which are not callable or redeemable at the option of the issuer thereof; or |
|
|
|
|
obligations of a person controlled or supervised by or acting as an agency or
instrumentality of that government, the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by that government, which are not
callable or redeemable at the option of the issuer thereof. |
Guarantees
Our payment obligations under any series of debt securities may be guaranteed by us or one or
more of our subsidiaries. The terms of any such guarantee will be set forth in the applicable
prospectus supplement.
19
Subordination
We will set forth in the applicable prospectus supplement the terms and conditions, if any,
upon which any series of senior subordinated securities or subordinated securities is subordinated
to debt securities of another series or to other indebtedness of ours. The terms will include a
description of the following:
|
|
|
the indebtedness ranking senior to the debt securities being offered; |
|
|
|
|
any restrictions on payments to the holders of the debt securities being offered
while a default with respect to the senior indebtedness is continuing; |
|
|
|
|
any restrictions on payments to the holders of the debt securities being offered
following an event of default; and |
|
|
|
|
provisions requiring holders of the debt securities being offered to remit some
payments to holders of senior indebtedness. |
Conversion and Exchange Rights
The terms on which debt securities of any series may be convertible into or exchangeable for
our common stock, preferred stock, or other securities or property of our company will be described
in the applicable prospectus supplement. These terms will include the following:
|
|
|
the conversion or exchange price, or the manner of calculating the price; |
|
|
|
|
the exchange or conversion period; |
|
|
|
|
whether the conversion or exchange is mandatory, or voluntary at the option of the
holder, or at our option; |
|
|
|
|
any restrictions on conversion or exchange in the event of redemption of the debt
securities and any restrictions on conversion or exchange; and |
|
|
|
|
the means of calculating the number of shares of our common stock, preferred stock,
or other securities or property of our company to be received by the holders of debt
securities. |
The conversion or exchange price of any debt securities of any series that are convertible
into our common stock or preferred stock may be adjusted for any stock dividends, stock splits,
reclassification, combinations, or similar transactions, as set forth in the applicable prospectus
supplement.
Redemption of Debt Securities
The debt securities may be subject to optional or mandatory redemption on terms and conditions
described in the applicable prospectus supplement. Subject to such terms, we may opt at any time
to redeem the debt securities in whole or in part.
If less than all the debt securities of any series are to be redeemed or purchased in an offer
to purchase at any time, the trustee will select the debt securities of that series to be redeemed
or purchased as follows: (1) if the securities of such series are listed on any national securities
exchange, in compliance with the requirements of the principal national securities exchange on
which the debt securities of that series are listed, or (2) if the debt securities of that series
are not listed on a national securities exchange, on a pro rata basis, by lot, or by such other
method as the trustee deems fair and appropriate.
Except as otherwise provided as to any particular series of debt securities, at least 30 days
but not more than 60 days before a redemption date, we or the trustee will mail a notice of
redemption to each holder whose debt securities are to be redeemed. From and after notice has been
given as provided in the applicable indenture, if funds for the redemption of any debt securities
called for redemption shall have been made available on the redemption date, the debt securities
will cease to bear interest on the date fixed for the redemption specified in the notice, and the
only right of the holders of the debt securities will be to receive payment of the redemption
price.
20
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with
the laws of the state of New York, except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION OF DEPOSITARY SHARES
We may issue receipts for depositary shares representing fractional shares of preferred stock.
The fractional share of the applicable series of preferred stock represented by each depositary
share will be set forth in the applicable prospectus supplement.
The shares of any series of preferred stock underlying any depositary shares that we may sell
under this prospectus will be deposited under a deposit agreement between us and a depositary
selected by us. Subject to the terms of the deposit agreement, each holder of a depositary share
will be entitled, in proportion to the applicable fraction of a share of the preferred stock
underlying the depositary share, to all of the rights, preferences, and privileges, and will be
subject to the qualifications and restrictions, of the preferred stock underlying that depositary
share.
The depositary shares will be evidenced by depositary receipts issued under the deposit
agreement. Depositary receipts will be distributed to the holders of the depositary shares that
are sold in the applicable offering. We will incorporate by reference into the registration
statement of which this prospectus is a part the form of any deposit agreement, including a form of
depositary receipt, that describes the terms of any depositary shares we are offering before the
issuance of the related depositary shares. The following summaries of material provisions of the
deposit agreement, the depositary shares, and the depositary receipts are subject to, and qualified
in their entirety by reference to, all of the provisions of the deposit agreement applicable to a
particular offering of depositary shares. We urge you to read the prospectus supplements relating
to any depositary shares that are sold under this prospectus, as well as the complete deposit
agreement and depositary receipt.
Form
Pending the preparation of definitive depositary receipts, the depositary may, upon our
written order, issue temporary depositary receipts substantially identical to the definitive
depositary receipts but not in definitive form. These temporary depositary receipts will entitle
their holders to all of the rights of definitive depositary receipts. Temporary depositary
receipts will then be exchangeable for definitive depositary receipts at our expense.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received with
respect to the underlying preferred stock to the record holders of depositary shares in proportion
to the number of depositary shares owned by those holders.
If there is a distribution other than in cash, the depositary will distribute property
received by it to the record holders of depositary shares in proportion to the number of depositary
shares owned by those holders, unless the depositary determines that it is not feasible to do so.
If this occurs, the depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to those holders in proportion to the number of depositary shares owned by
them.
The amount distributed to holders of depositary shares will be reduced by any amounts required
to be withheld by us or the preferred stock depositary on account of taxes or other governmental
charges.
Liquidation Preference
If a series of preferred stock underlying the depositary shares has a liquidation preference,
in the event of our voluntary or involuntary liquidation, dissolution, or winding up, holders of
depositary shares will be entitled to receive the fraction of the liquidation preference accorded
each share of the applicable series of preferred stock, as set forth in the applicable prospectus
supplement.
21
Withdrawal of Underlying Preferred Stock
Except as otherwise provided in a prospectus supplement, holders may surrender depositary
receipts at the principal office of the depositary and, upon payment of any unpaid amount due to
the depositary, be entitled to receive the number of whole shares of underlying preferred stock and
all money and other property represented by the related depositary shares. We will not issue any
partial shares of preferred stock. If the holder delivers depositary receipts evidencing a number
of depositary shares that represent more than a whole number of shares of preferred stock, the
depositary will issue a new depositary receipt evidencing the excess number of depositary shares to
the holder.
Redemption of Depositary Shares
If the preferred stock underlying any depositary shares we may sell under this prospectus is
subject to redemption, the depositary shares will be redeemed from the proceeds received by the
depositary resulting from any such redemption, in whole or in part, of that underlying preferred
stock. The redemption price per depositary share will be equal to the applicable fraction of the
redemption price per share payable with respect to the underlying preferred stock. Whenever we
redeem shares of underlying preferred stock that are held by the depositary, the depositary will
redeem, as of the same redemption date, the number of depositary shares representing the shares of
underlying preferred stock so redeemed. If fewer than all of the depositary shares are to be
redeemed, the depositary shares to be redeemed will be selected by lot or proportionately, as may
be determined by the depositary.
After the date fixed for redemption, the depositary shares called for redemption will no
longer be deemed to be outstanding, and all rights of the holders of the depositary shares will
cease, except the right to receive the monies payable and any other property to which the holders
were entitled upon the redemption upon surrender to the preferred stock depositary of the
depositary receipts evidencing the depositary shares. Any funds deposited by us with the
preferred stock depositary for any depositary shares that the holders fail to redeem will be
returned to us after a period of two years from the date the funds are deposited.
Voting
Upon receipt of notice of any meeting at which holders of the preferred stock underlying any
depositary shares that we may sell under this prospectus are entitled to vote, the depositary will
mail the information contained in the notice to the record holders of the depositary shares. Each
record holder of the depositary shares on the record date, which will be the same date as the
record date for the underlying preferred stock, will be entitled to instruct the depositary as to
the exercise of the voting rights pertaining to the amount of the underlying preferred stock
represented by the holders depositary shares. The depositary will then try, as far as
practicable, to vote the number of shares of preferred stock underlying those depositary shares in
accordance with those instructions, and we will agree to take all reasonable actions which may be
deemed necessary by the depositary to enable the depositary to do so. The depositary will not vote
the underlying preferred stock to the extent it does not receive specific instructions with respect
to the depositary shares representing such preferred stock.
Conversion of Preferred Stock
If the prospectus supplement relating to any depositary shares that we may sell under this
prospectus states that the underlying preferred stock is convertible into our common stock or other
securities, the following will apply. The depositary shares, as such, will not be convertible into
any of our securities. Rather, any holder of the depositary shares may surrender the related
depositary receipts to the depositary with written instructions that direct us to cause conversion
of the preferred stock represented by the depositary shares into or for whole shares of our common
stock or other securities, as applicable. Upon receipt of those instructions and any amounts
payable by the holder in connection with the conversion, we will cause the conversion using the
same procedures as those provided for conversion of the underlying preferred stock. If only some
of a holders depositary shares are converted, a new depositary receipt or receipts will be issued
to the holder for any depositary shares not converted.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement may at any time be amended by agreement between us and the depositary. However,
any amendment which
22
materially and adversely alters the rights of the holders of depositary shares will not be
effective until 90 days after notice of that amendment has been given to the holders. Each holder
of depositary shares at the time any amendment becomes effective shall be deemed to consent and
agree to that amendment and to be bound by the deposit agreement as so amended. The deposit
agreement may be terminated by us or by the depositary only if all outstanding depositary shares
have been redeemed or converted into any other securities into which the underlying preferred stock
is convertible or there has been a final distribution, including to holders of depositary receipts,
of the underlying preferred stock in connection with our liquidation, dissolution, or winding up.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangement. We will also pay charges of the depositary in connection
with the initial deposit of the preferred stock, the initial issuance of the depositary shares, any
redemption of the preferred stock, and all withdrawals of preferred stock by owners of depositary
shares. Holders of depositary receipts will pay transfer, income, and other taxes and governmental
charges and other specified charges as provided in the deposit arrangement for their accounts. If
these charges have not been paid, the depositary may refuse to transfer depositary shares, withhold
dividends and distributions, and sell the depositary shares evidenced by the depositary receipt.
Limitation on Liability
Neither we nor the depositary will be liable if either of us is prevented or delayed by law or
any circumstance beyond our control in performing our respective obligations under the deposit
agreement. Our obligations and those of the depositary will be limited to performance of our
respective duties under the deposit agreement without, in our case, negligence or bad faith or, in
the case of the depositary, negligence or willful misconduct. We and the depositary may rely upon
advice of counsel or accountants, or upon information provided by persons presenting the underlying
preferred stock for deposit, holders of depositary receipts, or other persons believed by us in
good faith to be competent and on documents believed to be genuine.
Corporate Trust Office of Preferred Stock Depositary
The preferred stock depositarys corporate trust office will be set forth in the applicable
prospectus supplement relating to a series of depositary shares. The preferred stock depositary
will act as transfer agent and registrar for depositary receipts, and, if shares of a series of
preferred stock are redeemable, the preferred stock depositary will act as redemption agent for the
corresponding depositary receipts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering notice to us of its election to resign.
We may remove the depositary at any time. Any resignation or removal will take effect upon the
appointment of a successor depositary and its acceptance of the appointment. The successor
depositary must be appointed within 60 days after delivery of the notice of resignation or removal
and must be a bank or trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
Reports to Holders
We will deliver all required reports and communications to holders of the preferred stock to
the preferred stock depositary, and it will forward those reports and communications to the holders
of depositary shares. Upon request, the preferred stock depositary will provide for inspection to
the holders of depositary shares the transfer books of the depositary and the list of holders of
receipts; provided that any requesting holder certifies to the preferred stock depositary that such
inspection is for a proper purpose reasonably related to such persons interest as an owner of
depositary shares evidenced by the receipts.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase common stock (which we refer to as common stock warrants),
preferred stock (which we refer to as preferred stock warrants), debt securities (which we refer to
as debt security
23
warrants), or depositary shares (which we refer to as depositary share warrants). Any of
these warrants may be issued independently or together with any other securities offered by this
prospectus and may be attached to or separate from those securities.
While the terms we have summarized below will generally apply to any future warrants we may
offer under this prospectus, we will describe the particular terms of any warrants that we may
offer in more detail in the applicable prospectus supplement. The terms of any warrants we offer
under a prospectus supplement may differ from the terms we describe below.
We may issue the warrants under a warrant agreement, which we will enter into with a warrant
agent to be selected by us. Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency or trust with any
holder of any warrant. A single bank or trust company may act as warrant agent for more than one
issue of warrants. A warrant agent will have no duty or responsibility in case of any default by
us under the applicable warrant agreement or warrant, including any duty or responsibility to
initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a
warrant may, without the consent of the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and receive the securities purchasable
upon exercise of, its warrants.
We will incorporate by reference into the registration statement of which this prospectus is a
part the form of warrant agreement, including a form of warrant certificate, that describes the
terms of the series of warrants we are offering before the issuance of the related series of
warrants. The following summaries of material provisions of the warrants and the warrant
agreements are subject to, and qualified in their entirety by reference to, all the provisions of
the warrant agreement applicable to a particular series of warrants. We urge you to read the
applicable prospectus supplements related to the warrants that we sell under this prospectus, as
well as the complete warrant agreements that contain the terms of the warrants.
We will set forth in the applicable prospectus supplement the terms of the warrants in respect
of which this prospectus is being delivered, including, when applicable, the following:
|
|
|
the title of the warrants; |
|
|
|
|
the aggregate number of the warrants; |
|
|
|
|
the price or prices at which the warrants will be issued; |
|
|
|
|
the designation, number, and terms of the securities purchasable upon exercise of
the warrants; |
|
|
|
|
the designation and terms of the other securities, if any, with which the warrants
are issued and the number of warrants issued with each such security; |
|
|
|
|
the date, if any, on and after which the warrants and the related underlying
securities will be separately transferable; |
|
|
|
|
the price at which each underlying security purchasable upon exercise of the
warrants may be purchased; |
|
|
|
|
the date on which the right to exercise the warrants will commence and the date on
which such right will expire; |
|
|
|
|
the minimum amount of the warrants that may be exercised at any one time; |
|
|
|
|
any information with respect to book-entry procedures; |
|
|
|
|
the effect of any merger, consolidation, sale, or other disposition of our business
on the warrant agreement and the warrants; |
|
|
|
|
any other terms of the warrants, including terms, procedures, and limitations
relating to the transferability, exchange, and exercise of such warrants; |
|
|
|
|
the terms of any rights to redeem or call, or accelerate the expiration of, the
warrants; |
|
|
|
|
the U.S. federal income tax consequences of holding or exercising the warrants; and |
24
|
|
|
any other specific terms, preferences, rights, or limitations of, or restrictions
on, the warrants. |
Unless specified in an applicable prospectus supplement, common stock warrants, preferred
stock warrants, debt security warrants, or depositary share warrants will be in registered form
only.
A holder of warrant certificates may exchange them for new certificates of different
denominations, present them for registration of transfer, and exercise them at the corporate trust
office of the warrant agent or any other office indicated in the applicable prospectus supplement.
Until any common stock warrants, preferred stock warrants, debt security warrants, or depositary
share warrants are exercised, holders of the warrants will not have any rights of holders of the
underlying common stock, preferred stock, debt securities, or depositary shares, except to the
extent set forth under the heading Warrant Adjustments below.
Exercise of Warrants
Each warrant will entitle the holder to purchase for cash shares of common stock, preferred
stock, debt securities, or depositary shares at the applicable exercise price set forth in, or
determined as described in, the applicable prospectus supplement. Warrants may be exercised at any
time up to the close of business on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Warrants may be exercised by delivering to the corporation trust office of the warrant agent
or any other officer indicated in the applicable prospectus supplement (a) the warrant certificate
properly completed and duly executed and (b) payment of the amount due upon exercise. As soon as
practicable following exercise, we will forward the shares of common stock or preferred stock, debt
securities, or depositary shares. If less than all of the warrants represented by a warrant
certificate are exercised, a new warrant certificate will be issued for the remaining warrants. If
we so indicate in the applicable prospectus supplement, holders of the warrants may surrender
securities as all or a part of the exercise price for the warrants.
Amendments and Supplements to the Warrant Agreements
We may amend or supplement a warrant agreement without the consent of the holders of the
applicable warrants to cure ambiguities in the warrant agreement, to cure or correct a defective
provision in the warrant agreement, or to provide for other matters under the warrant agreement
that we and the warrant agent deem necessary or desirable, so long as, in each case, such
amendments or supplements do not materially and adversely affect the interests of the holders of
the warrants.
Warrant Adjustments
Unless the applicable prospectus supplement states otherwise, the exercise price of, and the
number of securities covered by, a common stock warrant, preferred stock warrant, debt security
warrant, or depositary share warrant will be adjusted proportionately if we subdivide or combine
our common stock, preferred stock, or depositary shares, as applicable. In addition, unless the
prospectus supplement states otherwise, if we, without payment
|
|
|
issue capital stock or other securities convertible into or exchangeable for common
stock or preferred stock, or any rights to subscribe for, purchase, or otherwise
acquire any of the foregoing, as a dividend or distribution to holders of our common
stock or preferred stock; |
|
|
|
|
pay any cash to holders of our common stock or preferred stock other than a cash
dividend paid out of our current or retained earnings or other than in accordance with
the terms of the preferred stock; |
|
|
|
|
issue any evidence of our indebtedness or rights to subscribe for or purchase our
indebtedness to holders of our common stock or preferred stock; or |
|
|
|
|
issue common stock or preferred stock or additional stock or other securities or
property to holders of our common stock or preferred stock by way of spinoff, split-up,
reclassification, combination of shares, or similar corporate rearrangement, |
25
then the holders of common stock warrants, preferred stock warrants, debt security warrants, and
depositary share warrants, as applicable, will be entitled to receive upon exercise of the
warrants, in addition to the securities otherwise receivable upon exercise of the warrants and
without paying any additional consideration, the amount of stock and other securities and property
such holders would have been entitled to receive had they held the common stock, preferred stock,
debt securities, or depositary shares, as applicable, issuable under the warrants on the dates on
which holders of those securities received or became entitled to receive such additional stock and
other securities and property.
Except as stated above, the exercise price and number of securities covered by a common stock
warrant, preferred stock warrant, debt security warrant, and depositary share warrant, and the
amounts of other securities or property to be received, if any, upon exercise of those warrants,
will not be adjusted or provided for if we issue those securities or any securities convertible
into or exchangeable for those securities, or securities carrying the right to purchase those
securities or securities convertible into or exchangeable for those securities.
Holders of common stock warrants, preferred stock warrants, debt security warrants, and
depositary share warrants may have additional rights under the following circumstances:
|
|
|
certain reclassifications, capital reorganizations, or changes of the common stock,
preferred stock, or depositary shares, as applicable; |
|
|
|
|
certain share exchanges, mergers, or similar transactions involving us and which
result in changes of the common stock, preferred stock, or depositary shares, as
applicable; or |
|
|
|
|
certain sales or dispositions to another entity of all or substantially all of our
property and assets. |
If one of the above transactions occurs and holders of our common stock, preferred stock, debt
securities, or depositary shares are entitled to receive stock, securities, or other property with
respect to or in exchange for their securities, the holders of the common stock warrants, preferred
stock warrants, debt security warrants, and depositary share warrants then outstanding, as
applicable, will be entitled to receive upon exercise of their warrants the kind and amount of
shares of stock and other securities or property that they would have received upon the applicable
transaction if they had exercised their warrants immediately before the transaction.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating holders to purchase from us,
and for us to sell to holders, a specific or varying number of debt securities, shares of common
stock or preferred stock, depositary shares, warrants, or any combination of the above, at a future
date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and
obligate holders to sell to us, a specific or varying number of debt securities, shares of common
stock or preferred stock, depositary shares, warrants, or any combination of the above. The price
of the securities subject to the purchase contracts may be fixed at the time the purchase contracts
are issued or may be determined by reference to a specific formula described in the purchase
contracts. We may issue purchase contracts separately or as a part of units, each consisting of a
purchase contract and one or more of the other securities described in this prospectus or
securities of third parties, including U.S. Treasury securities, securing the holders obligations
under the purchase contract. If we issue a purchase contract as part of a unit, the applicable
prospectus supplement will state whether the purchase contract will be separable from the other
securities in the unit before the purchase contract settlement date. The purchase contracts may
require us to make periodic payments to holders or vice versa and the payments may be unsecured or
pre-funded on some basis. The purchase contracts may require holders to secure the holders
obligations in a manner specified in the applicable prospectus supplement, and in certain
circumstances, we may deliver newly issued prepaid purchase contracts, often known as prepaid
securities, upon release to a holder of any collateral securing such holders obligations under the
original purchase contract.
The applicable prospectus supplement will describe the terms of any purchase contracts in
respect of which this prospectus is being delivered, including, to the extent applicable, the
following:
|
|
|
whether the purchase contracts obligate the holder or us to purchase or sell, or
both purchase and sell, the securities subject to purchase under the purchase contract,
and the nature and amount of each of those securities, or the method of determining
those amounts; |
26
|
|
|
whether the purchase contracts are to be prepaid or not; |
|
|
|
|
whether the purchase contracts will be issued as part of a unit and, if so, the
other securities comprising the unit; |
|
|
|
|
whether the purchase contracts are to be settled by delivery, or by reference or
linkage to the value, performance, or level of the securities subject to purchase under
the purchase contract; |
|
|
|
|
any acceleration, cancellation, termination, or other provisions relating to the
settlement of the purchase contracts; and |
|
|
|
|
whether the purchase contracts will be issued in fully registered or global form. |
Material U.S. federal income tax consideration applicable to the purchase contracts and the
purchase units will also be discussed in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description, together with the additional information we include in any
applicable prospectus supplement, summarizes the material terms and provisions of the units that we
may offer under this prospectus. Units may be offered independently or together with common stock,
preferred stock, debt securities, depositary shares, and warrants offered by any prospectus
supplement, and may be attached to or separate from those securities. While the terms we have
summarized below will generally apply to any future units that we may offer under this prospectus,
we will describe the particular terms of any series of units that we may offer in more detail in
the applicable prospectus supplement. The terms of any units offered under a prospectus supplement
may differ from the terms described below.
We will incorporate by reference into the registration statement of which this prospectus is a
part the form of unit agreement, including a form of unit certificate, if any, that describes the
terms of the series of units we are offering before the issuance of the related series of units.
The following summaries of material provisions of the units and the unit agreements are subject to,
and qualified in their entirety by reference to, all the provisions of the unit agreement
applicable to a particular series of units. We urge you to read the applicable prospectus
supplements related to the units that we sell under this prospectus, as well as the complete unit
agreements that contain the terms of the units.
General
We may issue units consisting of common stock, preferred stock, debt securities, depositary
shares, warrants, or in combination thereof. Each unit will be issued so that the holder of the
unit is also the holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may not be held or
transferred separately, at any time, or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units,
including the following:
|
|
|
the designation and terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be held or
transferred separately; |
|
|
|
|
any provisions of the governing unit agreement that differ from those described
below; and |
|
|
|
|
any provisions for the issuance, payment, settlement, transfer, or exchange of the
units or of the securities comprising the units. |
The provisions described in this section, as well as those described under Description of
Common Stock, Description of Preferred Stock, Description of Debt Securities, Description of
Depositary Shares, and Description of Warrants, will apply to each unit and to any common stock,
preferred stock, debt security, depositary share, or warrant included in each unit, respectively.
27
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not
assume any obligation or relationship of agency or trust with any holder of any unit. A single
bank or trust company may act as unit agent for more than one series of units. A unit agent will
have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to
make any demand upon us. Any holder of a unit, without the consent of the related unit agent or
the holder of any other unit, may enforce by appropriate legal action its rights as holder under
any security included in the unit.
Title
We, the unit agent, and any of their agents may treat the registered holder of any unit
certificate as an absolute owner of the units evidenced by that certificate for any purposes and as
the person entitled to exercise the rights attaching to the units so requested, despite any notice
to the contrary.
CERTAIN PROVISIONS OF DELAWARE LAW AND
THE COMPANYS CHARTER AND BYLAWS
The following paragraphs summarize certain provisions of the Delaware law and our certificate
of incorporation, as amended, and amended and restated bylaws. The summary does not purport to be
complete and is subject to and qualified in its entirety by reference to Delaware law and to our
certificate of incorporation, as amended, and our amended and restated bylaws, copies of which are
on file with the SEC as exhibits to reports previously filed by us. See Where You Can Find More
Information.
General
Certain provisions of our certificate of incorporation, as amended, and our amended and
restated bylaws as well as Delaware law could make our acquisition by a third party, a change in
our incumbent management, or a similar change in control more difficult, including:
|
|
|
an acquisition of us by means of a tender or exchange offer; |
|
|
|
|
an acquisition of us by means of a proxy contest or otherwise; or |
|
|
|
|
the removal of a majority or all of our incumbent officers and directors. |
These provisions, which are summarized below, are likely to discourage certain types of coercive
takeover practices and inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of directors. We
believe that these provisions help to protect our potential ability to negotiate with the proponent
of an unfriendly or unsolicited proposal to acquire or restructure us, and that this benefit
outweighs the potential disadvantages of discouraging such a proposal because our ability to
negotiate with the proponent could result in an improvement of the terms of the proposal. The
existence of these provisions, which are described below, could limit the price that investors
might otherwise pay in the future for our securities. This description is intended as a summary
only and is qualified in its entirety by reference to our certificate of incorporation, as amended,
and amended and restated bylaws, as well as Delaware law.
Certificate of Incorporation and Bylaws
Authorized But Unissued Capital Stock. We have shares of common stock and preferred stock
available for future issuance without stockholder approval, subject to any limitations imposed by
the listing standards of the NASDAQ Global Select Market. We may utilize these additional shares
for a variety of corporate purposes, including for future public offerings to raise additional
capital or facilitate corporate acquisitions or for payment as a dividend on our capital stock.
The existence of unissued and unreserved common stock and preferred stock may
28
enable our board of directors to issue shares to persons friendly to current management or to
issue preferred stock with terms that could have the effect of making it more difficult for a third
party to acquire, or could discourage a third party from seeking to acquire, a controlling interest
in our company by means of a merger, tender offer, proxy contest, or otherwise. In addition, if we
issue preferred stock, the issuance could adversely affect the voting power of holders of common
stock and the likelihood that such holders will receive dividend payments and payments upon
liquidation.
Blank Check Preferred Stock. Our board of directors, without stockholder approval, has the
authority under our certificate of incorporation, as amended, to issue preferred stock with rights
superior to the rights of the holders of common stock. As a result, preferred stock could be
issued quickly and easily, could impair the rights of holders of common stock, and could be issued
with terms calculated to delay or prevent a change in control or make removal of management more
difficult.
Election of Directors. Our amended and restated bylaws provide that a majority of directors
then in office may fill any vacancy occurring on the board of directors, even though less than a
quorum may then be in office. These provisions may discourage a third party from voting to remove
incumbent directors and simultaneously gaining control of the board of directors by filling the
vacancies created by that removal with its own nominees.
Classified Board of Directors. Our certificate of incorporation, as amended, divides our
board of directors into three classes with one class standing for election each year for a
three-year term.
Removal of Directors. A director may be removed from office with or without cause only by (1)
the affirmative vote of not less than 66 2/3% of the combined voting power of the then outstanding
shares of all classes and series of our stock entitled to vote generally in the election of
directors, voting together as a single class, or (2) the affirmative vote of not less than 66 2/3%
of the then serving directors of our company.
Stockholder Action. Our certificate of incorporation, as amended, provides that stockholders
may only act at meetings of stockholders and not by written consent in lieu of a stockholders
meeting.
Stockholder Meetings. Our certificate of incorporation, as amended, provides that
stockholders may not call a special meeting of stockholders. Rather, only our board of directors
or a committee of our board of directors, acting pursuant to a resolution of the directors then in
office, will be able to call special meetings of stockholders. Our amended and restated bylaws
also provide that stockholders may only conduct business at special meetings of stockholders that
was specified in the notice of the meeting. These provisions may discourage another person or
entity from making a tender offer, even if it acquired a majority of our outstanding voting stock,
because the person or entity could only take action at a duly called stockholders meeting relating
to the business specified in the notice of meeting and not by written consent.
Requirements for Advance Notification of Stockholder Nominations and Proposals. Our amended
and restated bylaws provide that a stockholder seeking to bring business before an annual meeting
of stockholders, or to nominate candidates for election as directors at an annual meeting of
stockholders, must provide timely notice of this intention in writing. To be timely, a stockholder
must deliver or mail the notice and we must receive the notice at our principal executive offices
not later than 90 and not earlier than 120 days prior to the first anniversary of the preceding
years meeting, subject to certain exceptions. Our amended and restated bylaws also include a
similar requirement for making director nominations and specify requirements as to the form and
content of the stockholders notice. These provisions could delay stockholder actions that are
favored by the holders of a majority of our outstanding stock until the next stockholders meeting.
Super-Majority Voting. Delaware law generally provides that the affirmative vote of a
majority of the shares entitled to vote on any matter is required to amend a corporations
certificate of incorporation, unless a corporations certificate of incorporation requires a
greater percentage. We have provisions in our certificate of incorporation, as amended, that also
require a vote of at least 66 2/3% of the combined voting power of the issued and outstanding
shares of voting capital stock, voting together as a single class, to amend, alter, change, or
repeal certain provisions of our certificate of incorporation, as amended, including those relating
to the removal of directors; special meetings of stockholders; written consent of stockholders;
and adopting, amending, or repealing our bylaws.
29
Delaware Anti-Takeover Statute
We are a Delaware corporation subject to Section 203 of the Delaware General Corporation Law.
Under Section 203, some business combinations between a Delaware corporation whose stock generally
is publicly traded or held of record by more than 2,000 stockholders and an interested stockholder
are prohibited for a three-year period following the date that the stockholder became an interested
stockholder, in the absence of any of the following:
|
|
|
the corporation has elected in its certificate of incorporation, as amended, not to
be governed by Section 203; |
|
|
|
|
the board of directors of the corporation approved the transaction that resulted in
the stockholder becoming an interested stockholder before the stockholder became an
interested stockholder; |
|
|
|
|
upon consummation of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the voting
stock of the corporation outstanding at the commencement of the transaction, excluding
voting stock owned by directors who are also officers or held in employee benefit plans
in which the employees do not have a confidential right to tender stock held by the
plan in a tender or exchange offer; or |
|
|
|
|
the board of directors approves the business combination and holders of two-thirds
of the voting stock that the interested stockholder did not own authorize the business
combination at a meeting. |
We have not made an election in our certificate of incorporation to opt out of Section 203.
In addition to the above exceptions to Section 203, the three-year prohibition does not apply to
some business combinations proposed by an interested stockholder following the announcement or
notification of an extraordinary transaction involving the corporation and a person who was not an
interested stockholder during the previous three years or who became an interested stockholder with
the approval of a majority of the corporations directors. For the purposes of Section 203, a
business combination generally includes mergers or consolidations, transactions involving the
assets or stock of the corporation or its majority-owned subsidiaries, and transactions that
increase an interested stockholders percentage ownership of stock. Also, an interested
stockholder is defined generally as a person that, together with affiliates and associates, owns
or within three years prior to the determination of interested stockholder status, did own, 15% or
more of a corporations voting stock. The existence of this provision may have an anti-takeover
effect with respect to transactions not approved in advance by the board of directors, including
discouraging attempts that might result in a premium over the market price for the shares of common
stock held by stockholders.
Limitation of Liability and Indemnification
Our certificate of incorporation, as amended, limits the liability of our directors to the
maximum extent permitted by Delaware law. Delaware law provides that directors will not be
personally liable for monetary damages for breach of their fiduciary duties as directors, except
liability for any of the following:
|
|
|
any breach of their duty of loyalty to the corporation or its stockholders; |
|
|
|
|
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; |
|
|
|
|
unlawful payments of dividends or unlawful stock repurchases or redemptions; or |
|
|
|
|
any transaction from which the director derived an improper personal benefit. |
This provision has no effect on any non-monetary remedies that may be available to us or our
stockholders, nor does it relieve us or our officers or directors from compliance with federal or
state securities laws.
Our amended and restated bylaws provide that we will indemnify and advance expenses, to the
fullest extent permitted by Delaware law, to each person who is or was a director or officer of our
company, or who serves or served any other enterprise or organization at our request. The
indemnification provided under our amended and restated bylaws includes the right to be paid
expenses in advance of the final disposition for which indemnification
30
may be payable, provided that the payment of these expenses incurred by a director or officer
in advance of the final disposition of a proceeding may be made only upon delivery to us of an
undertaking by or on behalf of the director or officer to repay all amounts so paid in advance if
it is ultimately determined that the director or officer is not entitled to be indemnified.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers, or persons controlling us under the provisions that we describe above or
otherwise, we have been informed that in the opinion of the SEC, this indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
Our amended and restated bylaws also permit us to purchase and maintain insurance on behalf of
any officer or director for any liability arising out of his or her actions in that capacity,
regardless of whether our amended and restated bylaws would otherwise permit indemnification for
that liability. We are not aware of any threatened litigation or proceeding that may result in a
claim for indemnification against our directors, officers, employees, or agents.
Stockholders Rights Plan
Our stockholders rights plan may have the effect of deterring, delaying, or preventing a
change in control that might otherwise be in the best interests of our stockholders. Under the
rights plan, one preferred share purchase right (a Right) is issued and attached to each
outstanding share of common stock, par value $0.001. Each Right entitles the registered holder to
purchase from us one one-thousandth of a share of Series A Preferred Stock, par value $0.001 per
share (the Series A Preferred Stock), at a price of $60.00 per one one-thousandth of a share of
Series A Preferred Stock (the Purchase Price), subject to adjustment, or, under certain
circumstances, a number of shares of our common stock with a market value equal to two times the
purchase price. The description and terms of the Rights are set forth in a Rights Agreement dated
as of August 15, 2002, as the same may be amended from time to time (the Rights Agreement),
between our company and American Stock Transfer and Trust Company, as rights agent (the Rights
Agent).
The Rights initially trade with, and are inseparable from, the common stock. Until the
earlier to occur of (1) 10 days following a public announcement that a person or group of
affiliated or associated persons (with certain exceptions provided in the Rights Agreement, an
Acquiring Person) has acquired beneficial ownership of 15% or more of the outstanding shares of
our common stock, or (2) 10 business days (or such later date as may be determined by action of our
board of directors prior to such time as any person or group of affiliated persons becomes an
Acquiring Person) following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial ownership by a
person or group of 15% or more of the outstanding shares of common stock (the earlier of such dates
being called the Rights Distribution Date), the Rights will be evidenced by the common stock
certificates, which will be accompanied by a copy of a summary describing the Rights. Among other
exceptions, any stockholder owning 15% or more of our outstanding common stock as of August 16,
2002 is grandfathered (and thus not deemed to be an Acquiring Person) under the Rights Plan,
unless and until such time as such stockholder, after August 16, 2002, becomes the beneficial owner
of additional shares of common stock (other than pursuant to a dividend or distribution paid or
made on the outstanding common stock or pursuant to a split or subdivision of the outstanding
common stock), unless, upon becoming the beneficial owner of such additional shares of common
stock, such stockholder is not then the beneficial owner of 15% or more of the shares of common
stock then outstanding. The Rights will expire on August 15, 2012, unless this date is extended or
unless the Rights are earlier redeemed or exchanged by us, in each case as provided in the Rights
Agreement.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities.
We refer to those persons who have securities registered in their own names on the books that we or
any applicable trustee, depositary, or warrant agent maintain for this purpose as the holders of
those securities. These persons are the legal holders of the securities. We refer to those
persons that, indirectly through others, own beneficial interests in securities that are not
registered in their own names as indirect holders of those securities. As we discuss below,
indirect holders are not legal holders, and investors in securities issued in book-entry form or in
street name will be indirect holders.
31
See also the section entitled Description of Debt Securities Form, Transfer and Exchange
above for additional discussion of book entry and certificated form of ownership as such forms of
ownership impact the rights and obligations of purchasers of debt securities to be issued under
this prospectus.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable
prospectus supplement. This means securities may be represented by one or more global securities
registered in the name of a financial institution that holds them as depositary on behalf of other
financial institutions that participate in the depositarys book-entry system. These participating
institutions, which are referred to as participants, in turn, hold beneficial interests in the
securities on behalf of themselves or their customers. Upon the issuance of a global security, the
depositary will credit, on its book-entry registration and transfer system, the participants
accounts with the respective principal amounts of the book-entry securities represented by the
global security beneficially owned by such participants. The accounts to be credited will be
designated by any dealers, underwriters, or agents participating in the distribution of the
book-entry securities. Ownership of book-entry securities will be shown on, and the transfer of
the ownership interests will be effected only through, records maintained by the depositary for the
related global security (with respect to interests of participants) and on the records of
participants (with respect to interests of persons holding through participants). The laws of some
states may require that certain purchasers of securities take physical delivery of such securities
in definitive form. These laws may impair the ability to own, transfer, or pledge beneficial
interests in book-entry securities.
Only the person in whose name a security is registered is recognized as the holder of that
security. Securities issued in global form will be registered in the name of the depositary or its
participants. Consequently, for securities issued in global form, we will recognize only the
depositary as the holder of the securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to its participants, which in
turn pass the payments along to their customers who are the beneficial owners. The depositary and
its participants do so under agreements they have made with one another or with their customers;
they are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead,
they will own beneficial interests in a global security, through a bank, broker, or other financial
institution that participates in the depositarys book-entry system or holds an interest through a
participant. As long as the securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases,
investors may choose to hold their securities in their own names or in street name. Securities
held by an investor in street name would be registered in the name of a bank, broker, or other
financial institution that the investor chooses, and the investor would hold only a beneficial
interest in those securities through an account he, she, or it maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers,
and other financial institutions in whose names the securities are registered as the holders of
those securities, and we will make all payments on those securities to them. These institutions
pass along the payments they receive to their customers who are the beneficial owners, but only
because they agree to do so in their customer agreements or because they are legally required to do
so. Investors who hold securities in street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties
employed by us or a trustee, run only to the legal holders of the securities. We do not have
obligations to investors who hold beneficial interests in global securities, in street name, or by
any other indirect means. This will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the securities only in global form.
32
For example, once we make a payment or give a notice to the holder, we have no further
responsibility for the payment or notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along to the indirect holders but does
not do so. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations For Indirect Holders
If you hold securities through a bank, broker, or other financial institution, either in
book-entry form or in street name, you should check with your own institution to determine the
following:
|
|
|
how it handles securities payments and notices; |
|
|
|
|
whether it imposes fees or charges; |
|
|
|
|
how it would handle a request for the holders consent, if ever required; |
|
|
|
|
whether and how you can instruct it to send you securities registered in your own
name so you can be a holder, if that is permitted in the future; |
|
|
|
|
how it would exercise rights under the securities if there were a default or other
event triggering the need for holders to act to protect their interests; and |
|
|
|
|
if the securities are in book-entry form, how the depositarys rules and procedures
will affect these matters. |
Global Securities
A global security is a security that represents one or any other number of individual
securities held by a depositary. Generally, all securities represented by the same global
securities will have the same terms. Each security issued in book-entry form will be represented
by a global security that we deposit with and register in the name of a financial institution or
its nominee that we select. The financial institution that we select for this purpose is called
the depositary. Unless we specify otherwise in the applicable prospectus supplement, The
Depository Trust Company, New York, New York, known as DTC, will be the depositary for all
securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the
depositary, its nominee, or a successor depositary, unless special termination situations arise.
We describe those situations below under Special Situations When a Global Security Will Be
Terminated. As a result of these arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all securities represented by a global security, and investors will
be permitted to own only beneficial interests in a global security. Beneficial interests must be
held by means of an account with a broker, bank, or other financial institution that in turn has an
account with the depositary or with another institution that does. Thus, an investor whose
security is represented by a global security will not be a holder of the security, but only an
indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be
issued in global form only, then the security will be represented by a global security at all times
unless and until the global security is terminated. If termination occurs, we may issue the
securities through another book-entry clearing system or decide that the securities may no longer
be held through any book-entry clearing system.
We may at any time and in our sole discretion determine not to have any of the book-entry
securities of any series represented by one or more global securities and, in that event, we will
issue certificated securities in exchange for the global securities of that series.
Special Considerations For Global Securities
The rights of an indirect holder relating to a global security will be governed by the account
rules of the investors financial institution and of the depositary, as well as general laws
relating to securities transfers. We do not recognize an indirect holder as a holder of securities
and instead deal only with the depositary that holds the global security.
33
If securities are issued only in the form of a global security, an investor should be aware of
the following:
|
|
|
an investor cannot cause the securities to be registered in his, her, or its name,
and cannot obtain non-global certificates for his, her, or its interest in the
securities, except in the special situations we describe below; |
|
|
|
|
an investor will be an indirect holder and must look to his, her, or its own bank or
broker for payments on the securities and protection of his, her, or its legal rights
relating to the securities, as we describe above; |
|
|
|
|
an investor may not be able to sell interests in the securities to some insurance
companies and to other institutions that are required by law to own their securities in
non-book-entry form; |
|
|
|
|
an investor may not be able to pledge his, her, or its interest in a global security
in circumstances when certificates representing the securities must be delivered to the
lender or other beneficiary of the pledge in order for the pledge to be effective; |
|
|
|
|
the depositarys policies, which may change from time to time, will govern payments,
transfers, exchanges, and other matters relating to an investors interest in a global
security; |
|
|
|
|
we and any applicable trustee will have no responsibility for any aspect of the
depositarys actions or for its records of ownership interests in a global security,
nor do we or any applicable trustee supervise the depositary in any way; |
|
|
|
|
the depositary may, and we understand that DTC will, require that those who purchase
and sell interests in a global security within its book-entry system use immediately
available funds, and your broker or bank may require you to do so as well; and |
|
|
|
|
financial institutions that participate in the depositarys book-entry system, and
through which an investor holds its interest in a global security, may also have their
own policies affecting payments, notices, and other matters relating to the securities. |
There may be more than one financial intermediary in the chain of ownership for an investor. We do
not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests
in it will be exchanged for physical certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or in street name will be up to the
investor. Investors must consult their own banks or brokers to find out how to have their
interests in securities transferred to their own name, so that they will be direct holders. We
have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will
terminate when the following special situations occur:
|
|
|
if the depositary notifies us that it is unwilling, unable, or no longer qualified
under the Exchange Act to continue as depositary for that global security, and we do
not appoint another institution to act as depositary within 90 days; |
|
|
|
|
if we notify any applicable trustee that we wish to terminate that global security;
or |
|
|
|
|
if an event of default has occurred with regard to securities represented by that
global security and has not been cured or waived. |
The prospectus supplement may also list additional situations for terminating a global security
that would apply only to the particular types and series of securities covered by the applicable
prospectus supplement. When a global security terminates, the depositary, and not we or any
applicable trustee, is responsible for deciding the names of the institutions that will be the
initial direct holders.
34
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus from time to time in one or more of
the following ways:
|
|
|
to or through underwriters or dealers, |
|
|
|
|
directly to one or more purchasers, |
|
|
|
|
through agents, or |
|
|
|
|
through a combination of any of those methods of sale. |
The prospectus supplement with respect to the offered securities will describe the terms of
the offering, including the following:
|
|
|
the name or names of any underwriters or agents; |
|
|
|
|
any public offering price; |
|
|
|
|
the proceeds from such sale; |
|
|
|
|
any underwriting discounts or agency fees and other items constituting underwriters
or agents compensation; |
|
|
|
|
any over-allotment options under which underwriters may purchase additional
securities from us; |
|
|
|
|
any discounts or concessions allowed or reallowed or paid to dealers; and |
|
|
|
|
any securities exchanges on which the securities may be listed. |
We may distribute the securities from time to time in one or more of the following ways:
|
|
|
at a fixed public offering price or prices, which may be changed, |
|
|
|
|
at prices relating to prevailing market prices at the time of sale, |
|
|
|
|
at varying prices determined at the time of sale, or |
|
|
|
|
at negotiated prices. |
Unless otherwise indicated in the applicable prospectus supplement, if we use underwriters for
a sale of securities, the underwriters will acquire the securities for their own account. The
underwriters may resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price, or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be subject to the
conditions set forth in the applicable underwriting agreement. Unless otherwise indicated in a
prospectus supplement, the underwriters will be obligated to purchase all the securities of the
series offered if they purchase any of the securities of that series. We may change from time to
time any initial public offering price and any discounts or concessions the underwriters allow or
reallow or pay to dealers. We may use underwriters with whom we have a material relationship. We
will describe in the prospectus supplement naming the underwriter the nature of any such
relationship. We may designate agents that agree to use their reasonable efforts to solicit
purchases for the period of their appointment or to sell securities on a continuing basis. We may
also sell securities directly to one or more purchasers without using underwriters or agents.
Underwriters, dealers, or agents may receive compensation in the form of discounts,
concessions, or commissions from us or from purchasers of the securities as their agents in
connection with the sale of the securities. These underwriters, dealers, or agents may be
considered to be underwriters under the Securities Act. As a result, discounts, commissions, or
profits on resale received by underwriters, dealers, or agents may be treated as underwriting
discounts and commissions. Each prospectus supplement will identify any underwriter, dealer, or
agent and describe any compensation received by them from us. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time
to time.
35
Unless otherwise specified in the applicable prospectus supplement, each class or series of
securities will be a new issue with no established trading market, other than our common stock,
which is listed on the NASDAQ Global Select Market. We may elect to list any other class or series
of securities on any exchange, but we are not obligated to do so. It is possible that one or more
underwriters may make a market in a class or series of securities, but the underwriters will not be
obligated to do so and may discontinue any market making at any time without notice. We cannot
give any assurance as to the liquidity of the trading market for any of the securities.
In connection with any offering, the underwriters may engage in stabilizing transactions,
over-allotment transactions, syndicate covering transactions, and penalty bids in accordance with
Regulation M under the Exchange Act.
|
|
|
Stabilizing transactions permit bids to purchase the underlying security so long as
the stabilizing bids do not exceed a specified maximum. |
|
|
|
|
Over-allotment involves sales by the underwriters of shares of our common stock in
excess of the number of shares the underwriters are obligated to purchase, which
creates a syndicate short position. The short position may be either a covered short
position or a naked short position. In a covered short position, the number of shares
of our common stock over-allotted by the underwriters is not greater than the number of
shares that they may purchase in the over-allotment option. In a naked short position,
the number of shares of our common stock involved is greater than the number of shares
in the over-allotment option. The underwriters may close out any covered short
position by either exercising their over-allotment option or purchasing shares of our
common stock in the open market. |
|
|
|
|
Syndicate covering transactions involve purchases of our common stock in the open
market after the distribution has been completed in order to cover syndicate short
positions. In determining the source of shares to close out the short position, the
underwriters will consider, among other things, the price of shares of our common stock
available for purchase in the open market as compared to the price at which they may
purchase shares through the over-allotment option so that if there is a naked short
position, the position can only be closed out by buying shares in the open market. A
naked short position is more likely to be created if the underwriters are concerned
that there could be downward pressure on the price of the shares of our common stock in
the open market after the pricing of any offering that could adversely affect investors
who purchase in that offering. |
|
|
|
|
Penalty bids permit the representatives of the underwriters to reclaim a selling
concession from a syndicate member when the common stock originally sold by the
syndicate member is purchased in a stabilizing or syndicate covering transaction to
cover syndicate short positions. |
These stabilizing transactions, syndicate covering transactions, and penalty bids may have the
effect of raising or maintaining the market price of our common stock or preventing or retarding a
decline in the market price of our common stock. As a result, the price of our common stock may be
higher than the price that might otherwise exist in the open market. These transactions may be
effected on the NASDAQ Global Select Market or otherwise and, if commenced, may be discontinued at
any time.
Underwriters, dealers, and agents may be entitled under agreements entered into with us to
indemnification against certain civil liabilities, including liabilities under the Securities Act,
or to contribution with respect to payments they may be required to make in respect of these
liabilities thereof. Underwriters, dealers, and agents and their affiliates may be customers of,
may engage in transactions with, or perform services for us in the ordinary course of business for
which they receive compensation.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon by Greenberg Traurig, LLP,
Phoenix, Arizona. Certain members of such firm beneficially owned 15,000 shares of our common
stock as of the date of this prospectus.
36
EXPERTS
The consolidated financial statements of Synaptics Incorporated as of June 30, 2007 and June
28, 2008, and for each of the years in the three-year period ended June 28, 2008, and the effectiveness of internal control over financial
reporting as of June 28, 2008,
have been incorporated by reference herein in reliance upon the reports of KPMG LLP, independent
registered public accounting firm, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing. KPMG LLPs report dated August 27, 2008 includes
an explanatory paragraph relating to the adoption of the provisions of Financial Accounting
Standards Board Interpretation No. 48, Accounting for Uncertainty in Income Taxes an
interpretation of FASB Statement No. 109, at the beginning of fiscal 2008.
37
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the fees and expenses payable by the registrant in connection
with the offering described in the registration statement. All of the amounts shown are estimates,
except for the SEC registration fee:
|
|
|
|
|
|
|
Amount |
|
|
|
to be Paid |
|
SEC Registration Fee |
|
$ |
9,825 |
|
Accountants Fees and Expenses |
|
|
28,000 |
|
Legal Fees and Expenses |
|
|
50,000 |
|
Printing and Engraving Expenses |
|
|
25,000 |
|
Transfer Agent Fees |
|
|
5,000 |
|
Trust Fees and Expenses |
|
|
10,000 |
|
Miscellaneous Fees |
|
|
10,175 |
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
138,000 |
|
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law empowers a Delaware corporation to
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of such corporation) by reason of the fact
that such person is or was a director, officer, employee, or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee, or agent of
another corporation or enterprise. In accordance with Delaware law, the certificate of
incorporation, as amended, and the amended and restated bylaws of the registrant provide that the
registrant will indemnify and advance expenses, to the fullest extent permitted by Delaware law, to
each person who is or was a director or officer of the registrant, or who serves or served any
other enterprise or organization at the request of the registrant (an Indemnitee).
Under Delaware law, to the extent that an Indemnitee is successful on the merits in defense of
a suit or proceeding brought against him or her by reason of the fact that he or she is or was a
director, officer, or agent of the registrant, or serves or served any other enterprise or
organization at the request of the registrant, the registrant shall indemnify him or her against
expenses (including attorneys fees) actually and reasonably incurred in connection with such
action.
If unsuccessful in defense of a third-party civil suit or a criminal suit, or if such a suit
is settled, an Indemnitee may be indemnified under Delaware law against both (i) expenses,
including attorneys fees, and (ii) judgments, fines, and amounts paid in settlement if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the
best interests of the registrant, and, with respect to any criminal action, had no reasonable cause
to believe his or her conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the registrant, where the
suit is settled, an Indemnitee may be indemnified under Delaware law only against expenses
(including attorneys fees) actually and reasonably incurred in the defense or settlement of the
suit if he or she acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the registrant except that if the Indemnitee is adjudged to
be liable for negligence or misconduct in the performance of his or her duty to the registrant, he
or she cannot be made whole even for expenses unless a court determines that he or she is fully and
reasonably entitled to indemnification for such expenses.
Also under Delaware law, expenses incurred by an officer or director in defending a civil or
criminal action, suit, or proceeding may be paid by the registrant in advance of the final
disposition of the suit, action, or proceeding upon receipt of an undertaking by or on behalf of
the officer or director to repay such amount if it is
38
ultimately determined that he or she is not entitled to be indemnified by the registrant. The
registrant may also advance expenses incurred by other employees and agents of the registrant upon
such terms and conditions, if any, that the board of directors of the registrant deems appropriate.
Our amended and restated bylaws also permit us to purchase and maintain insurance on behalf of
any officer or director for any liability arising out of his or her actions in that capacity,
regardless of whether our amended and restated bylaws would otherwise permit indemnification for
that liability.
Item 16. Exhibits
|
|
|
|
Exhibit |
|
|
Number |
|
Exhibit |
|
|
|
**1.1
|
|
Form of Underwriting Agreement |
|
|
|
3.1
|
|
Certificate of Incorporation (1) |
|
|
|
3.1(b)
|
|
Certificate of Designation of Series A Junior Participating Preferred Stock (2) |
|
|
|
3.2
|
|
Second Amended and Restated Bylaws (3) |
|
|
|
3.3
|
|
Certificate of Amendment of Certificate of Incorporation of the registrant (4) |
|
|
|
4
|
|
Form of Common Stock Certificate (5) |
|
|
|
4(b)
|
|
Rights Agreement, dated as of August 15, 2002, between the registrant and American
Stock Transfer & Trust Company, as Rights Agent (2) |
|
|
|
4(c)
|
|
Amendment No. 1 to Rights Agreement (6) |
|
|
|
4.1
|
|
Indenture dated December 7, 2004 by and between the registrant and American Stock
Transfer & Trust Company (4) |
|
|
|
4.2
|
|
Registration Rights Agreement dated December 7, 2004 by and among the registrant, Bear,
Stearns & Co. Inc., and Credit Suisse First Boston LLC (4) |
|
|
|
**4.3
|
|
Specimen Certificate of Preferred Stock |
|
|
|
**4.4
|
|
Form of Warrant Agreement and Certificate |
|
|
|
**4.5
|
|
Form of Debt Security |
|
|
|
*4.6
|
|
Form of Indenture |
|
|
|
**4.7
|
|
Form of Depositary Receipt for Depositary Shares |
|
|
|
**4.8
|
|
Form of Deposit Agreement for Depositary Shares |
|
|
|
**4.9
|
|
Form of Purchase Contract |
|
|
|
**4.10
|
|
Form of Unit Agreement and Unit Certificate |
|
|
|
5.1
|
|
Opinion of Greenberg Traurig, LLP |
|
|
|
**12.1
|
|
Ratio of Earnings to Fixed Charges |
|
|
|
23.1
|
|
Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1) |
|
|
|
23.2
|
|
Consent of KPMG LLP, Independent Registered Public Accounting Firm |
|
|
|
*24.1
|
|
Power of Attorney of Directors and Executive Officers (included on the signature page
of the Registration Statement) |
|
|
|
*25.1
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the
Trustee under the Indenture |
|
|
|
|
|
* |
|
Previously filed. |
|
|
** |
|
To be filed by amendment to this registration statement or by a report filed under the
Securities Exchange Act of 1934, as amended, and incorporated herein by reference. |
|
(1) |
|
Incorporated by reference to the registrants Form 10-Q for the quarter ended December
29, 2001, as filed with the SEC on February 21, 2002. |
|
(2) |
|
Incorporated by reference to the registrants Form 8-A as filed with the SEC on August
16, 2002. |
|
(3) |
|
Incorporated by reference to the registrants Current Report on Form 8-K as filed with
the SEC on October 24, 2008. |
|
(4) |
|
Incorporated by reference to the registrants Current Report on Form 8-K as filed with
the SEC on December 7, 2004. |
|
(5) |
|
Incorporated by reference to the registrants Form 10-K for the fiscal year ended June
30, 2002, as filed with the SEC on September 12, 2002. |
39
|
|
|
(6) |
|
Incorporated by reference to the registrants Current Report on Form 8-K as filed with
the SEC on April 24, 2008. |
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective registration
statement.
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not
apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference into the registration statement or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part
of this registration statement or in reliance on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section
10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier date such form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any
40
statement that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrants annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
41
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Santa Clara, state of
California, on the 5th day of
February, 2009.
|
|
|
|
|
|
SYNAPTICS INCORPORATED
|
|
|
By: |
/s/ Francis F. Lee
|
|
|
|
Francis F. Lee |
|
|
|
Chief Executive Officer |
|
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the dates indicated:
|
|
|
|
|
|
Signature |
|
Capacity |
|
Date |
|
/s/ Francis F. Lee
|
|
Chairman of the Board, Chief
|
|
February 5, 2009 |
|
|
Executive Officer, and Director
(Principal Executive Officer)
|
|
|
|
|
|
|
|
/s/ Thomas J. Tiernan*
|
|
President, Chief Operating Officer, and Director
|
|
February 5, 2009 |
|
|
|
|
|
|
|
|
|
|
/s/ Russell J. Knittel*
|
|
Executive Vice President, Chief Financial
|
|
February 5, 2009 |
|
|
Officer,
Secretary, and Treasurer (Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/ Jeffrey D. Buchanan*
|
|
Director
|
|
February 5, 2009 |
|
|
|
|
|
|
|
|
|
|
/s/ Nelson C. Chan*
|
|
Director
|
|
February 5, 2009 |
|
|
|
|
|
|
|
|
|
|
/s/ Keith B. Geeslin*
|
|
Director
|
|
February 5, 2009 |
|
|
|
|
|
|
|
|
|
|
/s/ Richard L. Sanquini*
|
|
Director
|
|
February 5, 2009 |
|
|
|
|
|
|
|
|
|
|
/s/ James L. Whims*
|
|
Director
|
|
February 5, 2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*By: |
/s/ Francis F. Lee
|
|
|
Francis F. Lee |
|
|
Attorney-in-Fact |
|
|
|
42
EXHIBIT INDEX
|
|
|
|
Number |
|
Exhibit |
|
|
|
**1.1
|
|
Form of Underwriting Agreement |
|
|
|
3.1
|
|
Certificate of Incorporation (1) |
|
|
|
3.1(b)
|
|
Certificate of Designation of Series A Junior Participating Preferred Stock (2) |
|
|
|
3.2
|
|
Second Amended and Restated Bylaws (3) |
|
|
|
3.3
|
|
Certificate of Amendment of Certificate of Incorporation of the registrant (4) |
|
|
|
4
|
|
Form of Common Stock Certificate (5) |
|
|
|
4(b)
|
|
Rights Agreement, dated as of August 15, 2002, between the registrant and American
Stock Transfer & Trust Company, as Rights Agent (2) |
|
|
|
4(c)
|
|
Amendment No. 1 to Rights Agreement (6) |
|
|
|
4.1
|
|
Indenture dated December 7, 2004 by and between the registrant and American Stock
Transfer & Trust Company (4) |
|
|
|
4.2
|
|
Registration Rights Agreement dated December 7, 2004 by and among the registrant, Bear,
Stearns & Co. Inc., and Credit Suisse First Boston LLC (4) |
|
|
|
**4.3
|
|
Specimen Certificate of Preferred Stock |
|
|
|
**4.4
|
|
Form of Warrant Agreement and Certificate |
|
|
|
**4.5
|
|
Form of Debt Security |
|
|
|
*4.6
|
|
Form of Indenture |
|
|
|
**4.7
|
|
Form of Depositary Receipt for Depositary Shares |
|
|
|
**4.8
|
|
Form of Deposit Agreement for Depositary Shares |
|
|
|
**4.9
|
|
Form of Purchase Contract |
|
|
|
**4.10
|
|
Form of Unit Agreement and Unit Certificate |
|
|
|
5.1
|
|
Opinion of Greenberg Traurig, LLP |
|
|
|
**12.1
|
|
Ratio of Earnings to Fixed Charges |
|
|
|
23.1
|
|
Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1) |
|
|
|
23.2
|
|
Consent of KPMG LLP, Independent Registered Public Accounting Firm |
|
|
|
*24.1
|
|
Power of Attorney of Directors and Executive Officers (included on the signature page
of the Registration Statement) |
|
|
|
*25.1
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the
Trustee under the Indenture |
|
|
|
|
|
|
* |
|
Previously filed. |
|
** |
|
To be filed by amendment to this registration statement or by a report filed under the
Securities Exchange Act of 1934, as amended, and incorporated herein by reference. |
|
(1) |
|
Incorporated by reference to the registrants Form 10-Q for the quarter ended December
29, 2001, as filed with the SEC on February 21, 2002. |
|
(2) |
|
Incorporated by reference to the registrants Form 8-A as filed with the SEC on August
16, 2002. |
|
(3) |
|
Incorporated by reference to the registrants Current Report on Form 8-K as filed with
the SEC on October 24, 2008. |
|
(4) |
|
Incorporated by reference to the registrants Current Report on Form 8-K as filed with
the SEC on December 7, 2004. |
|
(5) |
|
Incorporated by reference to the registrants Form 10-K for the fiscal year ended June
30, 2002, as filed with the SEC on September 12, 2002. |
|
(6) |
|
Incorporated by reference to the registrants Current Report on Form 8-K as filed with
the SEC on April 24, 2008. |
43