Exhibit ▇▇.▇▇
$45,000,000
SKYWORKS SOLUTIONS, INC.
15% CONVERTIBLE NOTES DUE JUNE 30,2005
15% SENIOR CONVERTIBLE NOTES DUE JUNE 30,2005
REGISTRATION RIGHTS AGREEMENT
November 12,2002
Conexant Systems, Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
Skyworks Solutions, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and deliver to Conexant Systems, Inc., a Delaware corporation
("Conexant"), upon the terms and conditions set forth in the Refinancing
Agreement dated as of November 6,2002 by and between Conexant and the Company
(the "REFINANCING AGREEMENT") $45,000,000 aggregate principal amount of its 15%
Convertible Notes Due June 30,2005 (the "INTERIM CONVERTIBLE NOTES") which are
exchangeable for an equal aggregate principal amount of 15% Senior Convertible
Notes Due June 30,2005 (the "SENIOR CONVERTIBLE NOTES"). The Interim Convertible
Notes and Senior Convertible Notes will be convertible into shares of common
stock, par value $.25 per share, of the Company (the "COMMON STOCK") at the
conversion price set forth therein (the "CONVERSION PRICE"). The Senior
Convertible Notes will be issued pursuant to an Indenture (the "INDENTURE"), by
and between the Company and a trustee to be reasonably agreed between the
Company and Conexant (the "TRUSTEE"). As an inducement to Conexant to enter into
the Refinancing Agreement, the Company agrees with Conexant, for the benefit of
(i) Conexant and (ii) the holders of the Senior Convertible Notes and the Common
Stock issuable upon conversion of the Interim Convertible Notes and the Senior
Convertible Notes (collectively, the "SECURITIES") from time to time until such
time as the Securities have been sold pursuant to a Shelf Registration Statement
(as defined below) (each of the forgoing, including Conexant, a "HOLDER" and
collectively, the "HOLDERS"), as follows:
1. Shelf Registration. (a) The Company shall, at its cost, prepare
and, as promptly as practicable (but in no event more than 45 days after the
date hereof) file with the Securities and Exchange Commission (the "COMMISSION")
and thereafter use its commercially reasonable efforts to cause to be declared
effective as soon as practicable a registration statement on Form S-3 within 90
days after the date hereof (the
"SHELF REGISTRATION STATEMENT") relating to the offer and sale of the Transfer
Restricted Securities (as defined in Section 5 hereof) by the Holders thereof
from time to time in accordance with the methods of distribution set forth in
the Shelf Registration Statement and Rule 415 under the Securities Act of 1933,
as amended (the "SECURITIES ACT") (hereinafter, the "SHELF REGISTRATION");
provided, however, that no Holder (other than Conexant) shall be entitled to
have the Securities held by it covered by the Shelf Registration Statement
unless the Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to the Holder.
(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein (the "PROSPECTUS") to be lawfully delivered by the
Holders of the relevant Securities for a period beginning from the date of its
effectiveness and ending on December 31,2005 (or for such longer period if
extended pursuant to Section 2(h) below) or such shorter period that will
terminate when all the Securities covered by the Shelf Registration Statement
(i) have been sold pursuant thereto or (ii) are no longer restricted securities
(as defined in Rule 144(k) under the Securities Act, or any successor rule
thereof) and if Conexant is a Holder, it is not then an affiliate of the Company
(in any such case, such period being called the "SHELF REGISTRATION PERIOD").
The Company shall be deemed not to have used its reasonable best efforts to keep
the Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Securities covered
thereby not being able to offer and sell the Securities during that period,
unless such action is (i) required by applicable law or (ii) taken by the
Company in good faith upon the occurrence of any event contemplated by Section
2(b)(v) below, and the Company thereafter complies with the requirements of
Section 2(h).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to Conexant, prior to the filing
thereof with the Commission, a copy of the Shelf Registration Statement and each
amendment thereof and each supplement, if any, to the Prospectus included
therein and, in the event that Conexant is participating in the Shelf
Registration Statement, shall use its reasonable best efforts to reflect in each
such document, when so filed with the
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Commission, such comments as Conexant reasonably may propose; and (ii) include
the names of the Holders who propose to sell Securities pursuant to the Shelf
Registration Statement as selling securityholders.
(b) The Company shall give written notice to the Holders of the
Securities (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until the
requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment thereto
has been filed with the Commission and when the Shelf Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to the Shelf Registration Statement or the Prospectus included therein or
for additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make
changes in the Shelf Registration Statement or the Prospectus in order that
the Shelf Registration Statement or the Prospectus does not contain an
untrue statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading, which written notice need not provide any
detail as to the nature of such event.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of the Securities
included within the coverage of the Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
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(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall register or qualify or cooperate
with the Holders of the Securities included therein and their respective counsel
in connection with the registration or qualification of the Securities for offer
and sale under the securities or "blue sky" laws of such states of the United
States as any Holder of the Securities reasonably requests in writing and do any
and all other acts or things necessary or advisable to enable the offer and sale
in such jurisdictions of the Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Securities
to facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Shelf Registration Statement free of
any restrictive legends and in such denominations and registered in such names
as the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to the Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 2(b) above during the period for which the Company
is required to maintain an effective Shelf Registration Statement, the Company
shall as required hereby prepare and file a post-effective amendment to the
Shelf Registration Statement or an amendment or supplement to the Prospectus and
any other required document so that, as thereafter delivered to the Holders or
purchasers of the Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company may delay filing and distributing any such supplement or
amendment (and continue the suspension of the use of the Prospectus) if the
Company determines in good faith that such supplement or amendment would, in the
reasonable judgment of the Company, (i) interfere with or affect the negotiation
or completion of a transaction that is being contemplated by the Company or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of the
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Company's stockholders at such time; provided, further, that neither such delay
nor such suspension shall extend for a period of more than 45 consecutive days
or an aggregate of 90 days in any twelve-month period. If the Company notifies
the Holders in accordance with paragraphs (ii) through (v) of Section 2(b) above
to suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made, then the Holders shall suspend use of the Prospectus,
and the period of effectiveness of the Shelf Registration Statement provided for
in Section 1(b) above shall be extended by the number of days from and
including the date of the giving of such notice to and including the date when
the Holders shall have received such amended or supplemented Prospectus pursuant
to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Senior Convertible
Notes and the Common Stock registered under the Shelf Registration Statement,
and provide the Trustee with printed certificates for the Senior Convertible
Notes, in a form eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11 (a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(l) Each Holder agrees, by acquisition of the Securities, that no
Holder shall be entitled to sell any such Securities pursuant to the Shelf
Registration Statement or to receive a prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required
pursuant to Section 2(m) hereof and the information set forth in the next
sentence. Each Holder agrees promptly to furnish the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not misleading and any other information regarding
such Holder and the distribution of such Securities as the Company may from time
to time reasonably request.
(m) Each Holder agrees that if such ▇▇▇▇▇▇ wishes to sell such
▇▇▇▇▇▇'s Securities pursuant to the Shelf Registration Statement and related
Prospectus, it will do
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so in accordance with this Section 2(m). Each Holder wishing to sell Securities
pursuant to a Shelf Registration Statement and related Prospectus agrees to
deliver a properly completed and signed Notice and Questionnaire (the form of
which is attached as Annex A to this Agreement) to the Company at least fifteen
(15) business days prior to any intended distribution of Securities under the
Shelf Registration Statement. From and after the date the Shelf Registration
Statement is declared effective, the Company shall, as promptly as is
practicable after the date a Notice and Questionnaire is delivered, and in any
event within fifteen (15) business days after such date, (i) if required by
law, file with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file a
supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named a selling
securityholder in the Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to deliver the Prospectus to purchasers
of the Securities in accordance with applicable law and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement, use all
reasonable efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as practical, but in any event by
the date that is thirty (30) business days after the date such post-effective
amendment is required by this clause to be filed; (ii) provide the Holder copies
of any documents filed pursuant to this Section; and (iii) notify the Holder as
promptly as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to this Section; provided, that if such
Notice and Questionnaire is delivered during a period in which the use of the
Prospectus is suspended pursuant to Section 2(c) hereof, the Company shall so
inform the Holder delivering such Notice and Questionnaire and shall take the
actions set forth in clauses (i), (ii) and (iii) above upon expiration of such
suspension period. Notwithstanding anything contained herein to the contrary,
the Company shall be under no obligation to name any Holder that has not
supplied the requisite information required by this Section as a selling
securityholder in the Shelf Registration Statement and related Prospectus and
any amendment or supplement thereto; provided, however, that any Holder that has
subsequently supplied the requisite information required by this Section
pursuant to the provisions of this Section (whether or not the Holder has
supplied the requisite information required by this Section at the time the
Shelf Registration Statement was declared effective) shall be named as a selling
securityholder in the Shelf Registration Statement or related Prospectus in
accordance with the requirements of this Section. Notwithstanding anything
contained herein to the contrary, the Company shall not be required to file more
than one post-effective amendment or supplement for the purpose of naming
selling securityholders in any seven-day period.
(n) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other actions, if any, as any Holder shall reasonably request in order
to facilitate the disposition of the Securities pursuant to the Shelf
Registration; provided, however, that the Company shall not be required to
facilitate an underwritten offering pursuant to a
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Shelf Registration Statement by any Holders unless the offering relates to at
least $10,000,000 principal amount of the Securities or an equivalent amount of
Common Stock.
(o) The Company shall (i) make reasonably available for inspection
by the Holders, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement and any attorney, accountant or other agent
retained by the Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders
or any such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as shall be reasonably necessary to
enable such persons to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Holders by Conexant (or by another representative designated by and on behalf of
the Holders if Conexant is not participating in the disposition) and on behalf
of the other parties, by one counsel designated by and on behalf of such other
parties as described in Section 3 hereof.
(p) In the event of an underwritten offering, the Company shall use
its reasonable best efforts to cause (i) its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed to the
Holders and the managing underwriters, if any, thereof, and dated, in the case
of the initial opinion, the effective date of the Shelf Registration Statement
(it being agreed that the matters to be covered by such opinion shall include,
subject to customary assumptions and other qualifications, the due incorporation
and good standing of the Company and its subsidiaries; the qualification of the
Company and its subsidiaries to transact business as foreign corporations; the
due authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(n) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
Securities; the absence of material legal or governmental proceedings involving
the Company and its subsidiaries; the absence of governmental approvals required
to be obtained in connection with the Shelf Registration Statement, the offering
and sale of the Securities, or any agreement of the type referred to in Section
2(n) hereof; the compliance as to form of the Shelf Registration Statement and
any documents incorporated by reference therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act, respectively;
and, as of the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto, as the
case may be, the absence from the Shelf Registration Statement and the
Prospectus included therein, as then amended or supplemented, and from any
documents incorporated by reference therein of an untrue statement of a material
fact or the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case
of any such documents, in the light of the circumstances
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existing at the time that such documents were filed with the Commission under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")); (ii) its
officers to execute and deliver all customary documents and certificates and
updates thereof requested by any underwriters of the Securities; and (iii) its
independent public accountants and the independent public accountants with
respect to any other entity for which financial information is provided in the
Shelf Registration Statement to provide to the selling Holders of the applicable
Securities and any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
(q) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Securities covered by a
Shelf Registration Statement contemplated hereby.
3. Registration Expenses. (a) The Company shall bear all fees and
expenses in connection with the performance of its obligations hereunder,
whether a Shelf Registration Statement is filed or becomes effective and shall
bear or reimburse the Holders of Securities covered by the Shelf Registration
Statement for reasonable fees and disbursements of not more than one counsel,
designated by Conexant (for so long as Conexant is a Holder) or, if Conexant is
no longer a Holder, by the Holders of a majority in principal amount of the
Securities covered by the Shelf Registration Statement (provided that Holders of
Common Stock issued upon the conversion of the Interim Convertible Notes and the
Senior Convertible Notes shall be deemed to be Holders of the aggregate
principal amount of the Interim Convertible Notes and the Senior Convertible
Notes from which such Common Stock was converted), in each case, to act as
counsel for the Holders in connection therewith.
(b) In connection with any underwritten Shelf Registration
Statement, the participating Holders shall be responsible for the payment of any
and all underwriters and brokers and dealers discounts and selling commissions
and such discounts and commissions shall be borne by the participating Holders
in proportion to the number of Securities sold by such Holders.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder and each person, if any, who controls the Holder within the
meaning of the Securities Act or the Exchange Act (each Holder, and such
controlling persons are referred to collectively as the "INDEMNIFIED PARTIES")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement
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or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or Prospectus including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary Prospectus relating to the Shelf Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
Prospectus relating to the Shelf Registration in reliance upon and in conformity
with written information pertaining to the Holder and furnished to the Company
by or on behalf of the Holder specifically for inclusion therein and (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary Prospectus relating to the Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to
the extent that a Prospectus relating to the Securities was required to be
delivered by the Holder under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of the Holder results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of the Securities to such person, a copy of
the final Prospectus if the Company had previously furnished copies thereof to
the Holder; provided further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to the
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Securities if
requested by the Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act from and against any losses, claims, damages or liabilities or any actions
in respect thereof, to which the Company or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary Prospectus relating to the Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue
9
statement or omission was made in reliance upon and in conformity with written
information pertaining to the Holder and furnished to the Company by or on
behalf of the Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which the Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have under subsection (a) or (b) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
No indemnified party shall effect any settlement of any pending or threatened
action without the prior written consent of the indemnifying party, which such
consent shall not be unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is
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appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party on the other from the sale
of the Securities, pursuant to the Shelf Registration, or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
the Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Holders shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by the Holders from the
sale of the Securities pursuant to the Shelf Registration Statement exceeds the
amount of damages which the Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 1l(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Shelf Registration Statement and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
5. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "ADDITIONAL INTEREST") with respect to the Interim Convertible
Notes and Senior Convertible Notes shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv) below being
herein called a "REGISTRATION DEFAULT"):
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(i) the Shelf Registration Statement has not been filed with the
Commission by the 45th day after the first date of original issuance of the
Interim Convertible Notes;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission by the 90th day after the first date of original
issuance of the Interim Convertible Notes;
(iii) the Company fails with respect to a Holder that supplies the
Notice and Questionnaire described in Section 2(m) to amend or supplement
the Shelf Registration Statement in the manner set forth in Section 2(m);
provided that such assessment shall be paid only to such Holder and directly
to such Holder; or
(iv) the Shelf Registration Statement is declared effective, and
such Shelf Registration Statement ceases to be effective or fails to be
usable in connection with resales of Senior Convertible Notes and the Common
Stock issuable upon the conversion of the Interim Convertible Notes and the
Senior Convertible Notes in accordance with and during the periods specified
in this Agreement and (A) the Company does not cure the Shelf Registration
Statement within fifteen business days by a post-effective amendment or a
report filed pursuant to the Exchange Act or (B) if applicable, the Company
does not terminate the suspension period described above by the 45th or 90th
day, as the case may be.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Interim Convertible Notes and
Senior Convertible Notes over and above the interest set forth in the title of
the Interim Convertible Notes and Senior Convertible Notes from and including
the date on which any such Registration Default shall occur to but excluding the
date on which all the Registration Defaults have been cured, at a rate of 0.50%
per annum (the "ADDITIONAL INTEREST RATE") (or an equivalent amount for any
Common Stock issued upon conversion of the Interim Convertible Notes and the
Senior Convertible Notes). In the case of a registration default described in
clause (iii) the Company's obligation to pay additional interest extends only to
the affected Securities. The Company shall have no other liabilities for
monetary damages with respect to its registration obligations. With respect to
each Holder, the Company's obligations to pay additional interest remain in
effect only so long as the Senior Convertible Notes and the Common Stock
issuable upon the conversion of the Interim Convertible Notes and the Senior
Convertible Notes held by the Holder are Securities within the meaning of this
Agreement.
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(b) A Registration Default referred to in Section 5(a)(iv) hereof
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) the Registration Default
has occurred solely as a result of (x) the filing of a post-effective amendment
to the Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) other material events with respect to the Company
that would need to be described in the Shelf Registration Statement or the
related Prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement the Shelf Registration
Statement and related Prospectus to describe such events as required by
paragraph 2(h) hereof; provided, however, that in any case if the Registration
Default occurs for a continuous period in excess of 30 days, Additional Interest
shall be payable in accordance with the above paragraph from the day the
Registration Default occurs until the Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 5(a)
will be payable in cash on the regular interest payment dates with respect to
the Interim Convertible Notes and the Senior Convertible Notes. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest Rate by the principal amount of the Interim Convertible Notes and
Senior Convertible Notes further multiplied by a fraction, the numerator of
which is the number of days the Additional Interest Rate was applicable during
such period (determined on the basis of a 360-day year comprised of twelve
30-day months), and the denominator of which is 360. For purposes of this
Section 5, the holders of Common Stock issued upon conversion of the Interim
Convertible Notes and Senior Convertible Notes shall be deemed to be holders of
the aggregate principal amount of the Interim Convertible Notes and Senior
Convertible Notes from which the Common Stock was converted and, if applicable,
any amounts of Additional Interest due pursuant to Section 5(a) shall be paid to
such holders in accordance with the terms hereof as if such holders continued to
hold Interim Convertible Notes and Senior Convertible Notes.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i)
the date on which the Security has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (ii) the date on which the Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
6. Rule 144. The Company shall use its reasonable best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rule 144. The Company covenants that it will take such
further action as any Holder may reasonably request, all to
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the extent required from time to time to enable the Holder to sell Transfer
Restricted Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144. The Company will provide a
copy of this Agreement to prospective purchasers of Securities identified to the
Company by Conexant upon request. Upon the request of any Holder, the Company
shall deliver to the Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section 6
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities to be included in such offering (provided that holders of
Common Stock issued upon conversion of the Interim Convertible Notes and Senior
Convertible Notes shall not be deemed holders of Common Stock, but shall be
deemed to be holders of the aggregate principal amount of Interim Convertible
Notes and Senior Convertible Notes from which the Common Stock was converted)
and such selection shall be subject to the Company's consent, which shall not be
unreasonably withheld or delayed.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations hereunder may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations hereunder.
(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
14
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except in writing by the Company
and by the holders of a majority in principal amount of the Securities affected
by such amendment, modification, supplement, waiver or consents (provided that
holders of Common Stock issued upon conversion of Interim Convertible Notes and
Senior Convertible Notes shall not be deemed holders of Common Stock, but shall
be deemed to be holders of the aggregate principal amount of Interim Convertible
Notes and Senior Convertible Notes from which the Common Stock was converted).
Without the written consent of each Holder of the Securities, however, no
modification may change the provisions relating to the payment of Additional
Interest.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to Conexant:
Conexant Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Senior Vice President, General
Counsel and Secretary
with a copy to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(2) if to any other Holder of the Securities, at the most current
address given by the Holder to the Company;
(3) if to the Company:
Skyworks Solutions, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: [ ]
Attention: Chief Financial Officer
15
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) Third Party Beneficiaries. The other Holders shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and Conexant, on the other hand, and shall have the right to enforce
such agreements directly to the extent they may deem such enforcement necessary
or advisable to protect their rights or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits to
the nonexclusive jurisdiction of any federal or state court in the City of New
York, State of New York.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
16
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Company or its affiliates (other
than (i) Conexant or (ii) subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of the
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between Conexant and the Company in accordance with its terms.
Very truly yours,
SKYWORKS SOLUTIONS, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
The foregoing Registration Rights Agreement
is hereby confirmed and accepted as of the
date first above written.
CONEXANT SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
18
SKYWORKS SOLUTIONS, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned is the beneficial holder of 15% Convertible Senior
Subordinated Notes due June 30,2005 (the "Notes") of Skyworks Solutions, Inc., a
Delaware corporation (the "Company") or Common Stock, par value $0.25 (the
"Common Stock"), of the Company issued upon conversion of the Notes or the 15%
Convertible Note due June 30,2005 (the "Interim Convertible Note"). The Common
Stock and the Notes are referred to, collectively, as the "Registrable
Securities". The undersigned understands that the Company has filed or intends
to file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Registrable Securities in accordance with the
terms of the Registration Rights Agreement dated as of November 12,2002 (the
"Registration Rights Agreement") between the Company and Conexant Systems, Inc.,
a Delaware corporation. A copy of the Registration Rights Agreement is available
from the Company upon request at the address set forth below. All capitalized
terms not otherwise defined herein have the meaning ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions, as described
below). Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Any beneficial owner of Notes
wishing to include its Registrable Securities must deliver to the Company a
properly completed and signed Selling Securityholder Notice and Questionnaire.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
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The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
_______________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in (3) below are held:
_______________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) through which Registrable Securities listed in (3) below
are held:
_______________________________________________________________________
2. Address for Notices to Selling Securityholder:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Telephone: _________________________________________________________________
Fax: _______________________________________________________________________
Contact Person: ____________________________________________________________
3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities beneficially owned:
_______________________________________________________________________
_______________________________________________________________________
(b) CUSIP No(s). of Registrable Securities beneficially owned:
_______________________________________________________________________
_______________________________________________________________________
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4. Beneficial Ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any "Other Securities," defined as
securities of the Company other than the Registrable Securities listed
above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the Selling
Securityholder:
_______________________________________________________________________
_______________________________________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
_______________________________________________________________________
_______________________________________________________________________
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equityholders (5% or more) has
held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above in
Item (3) pursuant to the Shelf Registration Statement only as follows (if at
all): Such Registrable Securities may be sold from time to time directly by
the undersigned or alternatively, through underwriters, broker-dealers or
agents. If the Registrable Securities are sold through underwriters or
broker-dealers, the Selling Securityholder will be responsible for
underwriting discounts or commissions or agent's commissions. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve block transactions) (i) on any
national securities exchange or quotation service on which the Registrable
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the
A-3
Registrable Securities or otherwise, the undersigned may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of
the Registrable Securities and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations), in connection with any
offering of Registrable Securities pursuant to the Shelf Registration Statement.
The undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
as set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholder against
certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Beneficial Owner
By:_____________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
Skyworks Solutions, Inc.
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Financial Officer
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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