As filed with the Securities and Exchange Commission on February 14, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Skyworks Solutions, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
(State or other jurisdiction of incorporation or organization) | | 04-2302115
(I.R.S. Employer Identification No.) |
Skyworks Solutions, Inc.
5260 California Avenue
Irvine, California 92617
(Address of Principal Executive Offices) (Zip Code)
Inducement Restricted Stock Unit Awards
Inducement Performance Share Awards
(Full title of the plans)
Robert J. Terry
Senior Vice President, General Counsel and Secretary
Skyworks Solutions, Inc.
5260 California Avenue
Irvine, California 92617
(Name and address of agent for service)
(949) 231-3000
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer þ | Non-accelerated filer ☐ |
Accelerated filer ☐ | Smaller reporting company ☐ |
| Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is omitted from this registration statement and included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
Item 2. Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is omitted from this registration statement and included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:
(a) The Registrant’s latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above; and
(c) The description of the securities contained in the Registrant’s registration statement on Form 8-A filed under the Exchange Act, as the description therein has been updated and superseded by the description of our common stock contained in Exhibit 4.2 of the Registrant’s latest annual report, including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant has included such a provision in Article Seventh of its Restated Certificate of Incorporation.
In addition, Article Fourteenth of the Registrant’s Restated Certificate of Incorporation provides that to the fullest extent permitted by law, no officer of the Registrant shall be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as an officer, except for liability (i) for any breach of the officer’s duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for any transaction from which the officer derived an improper personal benefit, or (iv) for any action by or in the right of the Registrant.
Section 145 of the Delaware General Corporation Law provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances.
Article III, Section 14 of the Registrant’s Fourth Amended and Restated By-laws provides that a director or officer of the Registrant:
A. shall be indemnified by the Registrant against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in any action, suit or proceeding (other than an action by or in the right of the Registrant) brought against such person by virtue of his or her position as a director or officer of the Registrant if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful; and
B. shall be indemnified by the Registrant against all expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of any action or suit by or in the right of the Registrant brought against such person by virtue of his or her position as a director or officer of the Registrant if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant, other than with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant unless the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses.
In addition, Article III, Section 14 of the Registrant’s Fourth Amended and Restated By-laws provides that to the extent a director or officer has been successful, on the merits or otherwise, in defense of any action, suit or proceeding referred to in paragraphs A and B above, such person shall be indemnified by the Registrant against expenses (including attorneys’ fees) actually and reasonably incurred. Expenses will be advanced to a director or officer at such person’s request, provided that he or she undertakes to repay the amount received if it is ultimately determined that he or she is not entitled to indemnification for such expenses.
The Registrant has purchased directors’ and officers’ liability insurance which would indemnify its directors and officers against damages arising out of certain kinds of claims that might be made against them based on their negligent acts or omissions while acting in their capacity as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are incorporated herein by reference:
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| Exhibit No. | | Description of Exhibit |
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| 4.1 | | |
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| 4.2 | | |
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| 5.1 | | |
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| 23.1 | | |
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| 23.2 | | |
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| 24.1 | | |
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| 99.1* | | |
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| 99.2* | | |
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| 107* | | |
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| * | Filed herewith |
| (1) | Incorporated by reference from the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 2023 filed with the Securities and Exchange Commission on August 8, 2023. |
(2)
| Incorporated by reference from the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on May 12, 2023. |
Item 9. Undertakings.
1. Item 512(a) of Regulation S-K. 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;
(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.; and
(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 (1)(i) and (ii) 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 Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
2. Item 512(b) of Regulation S-K. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
3. Item 512(h) of Regulation S-K. Insofar as indemnification for liabilities arising under the Securities Act 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, in the State of California, on February 14, 2025.
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| SKYWORKS SOLUTIONS, INC. |
| By: | /s/ Robert J. Terry |
| | Robert J. Terry |
| | Senior Vice President, General Counsel and Secretary |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Skyworks Solutions, Inc., hereby severally constitute and appoint Kris Sennesael and Robert J. Terry and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all things in our names and on our behalf in such capacities to enable Skyworks Solutions, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any one of them, to said registration statement and any and all amendments thereto.
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.
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| SIGNATURE | | TITLE | | DATE |
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/s/ Liam K. Griffin | | Chief Executive Officer and President | | February 14, 2025 |
| Liam K. Griffin | | (Principal Executive Officer) | | |
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/s/ Kris Sennesael | | Senior Vice President and Chief Financial Officer | | February 14, 2025 |
| Kris Sennesael | | (Principal Financial and Accounting Officer) | | |
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/s/ Christine King | | Chairman | | February 14, 2025 |
| Christine King | | | | |
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| /s/ Alan S. Batey | | Director | | February 14, 2025 |
| Alan S. Batey | | | | |
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/s/ Kevin L. Beebe | | Director | | February 14, 2025 |
| Kevin L. Beebe | | | | |
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/s/ Eric J. Guerin | | Director | | February 14, 2025 |
| Eric J. Guerin | | | | |
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/s/ Suzanne E. McBride | | Director | | February 14, 2025 |
| Suzanne E. McBride | | | | |
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/s/ David P. McGlade | | Director | | February 14, 2025 |
| David P. McGlade | | | | |
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/s/ Robert A. Schriesheim | | Director | | February 14, 2025 |
| Robert A. Schriesheim | | | | |
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/s/ Maryann Turcke | | Director | | February 14, 2025 |
| Maryann Turcke | | | | |
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Skyworks Solutions, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1—Newly Registered Securities
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| Security Type | | Security Class Title | | Fee Calculation Rule | | Amount Registered (1) | | Proposed Maximum Offering Price Per Unit | | Maximum Aggregate Offering Price | | Fee Rate | | Amount of Registration Fee |
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| Equity | | Common Stock par value $0.25 per share | | Other | | 662,520 (2) | | $64.77 (3) | | $42,911,420.40 (3) | | $153.10 per $1,000,000 | | $6,569.74 |
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| Total Offering Amounts | | | | $42,911,420.40 | | | | $6,569.74 |
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| Total Fee Offsets | | | | | | | | — |
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| Net Fee Due | | | | | | | | $6,569.74 |
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| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
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| (2) | Consists of the maximum number of shares issuable under new hire inducement restricted stock unit awards and performance share awards to be granted on or about February 17, 2025 to an employee of the registrant as an inducement material to entry into employment with the registrant in accordance with Nasdaq Listing Rule 5635(c)(4). |
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| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act and based upon the average of the high and low prices of the registrant’s Common Stock as reported on the Nasdaq Global Select Market on February 11, 2025. |
EXHIBIT 5.1
February 14, 2025
Skyworks Solutions, Inc.
5260 California Avenue
Irvine, CA 92617
Re: Inducement Restricted Stock Unit Awards
Inducement Performance Share Awards
Ladies and Gentlemen:
I have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to (i) an aggregate of 43,682 shares (the “RSU Shares”) of common stock, par value $0.25 per share (the “Common Stock”), of Skyworks Solutions, Inc., a Delaware corporation (the “Company”), pursuant to an inducement restricted stock unit award agreement providing for employee inducement restricted stock unit grants between the Company and an employee, which were or will be entered into in connection with the entry into such employee’s employment with the Company pursuant to Nasdaq Stock Market Rule 5635(c)(4) (the “Inducement RSU Agreement”); and (ii) an aggregate of up to 618,838 shares of Common Stock (the “PSA Shares” and together with the RSU Shares, the “Shares”) pursuant to inducement performance share award agreements providing for employee inducement performance share award grants between the Company and an employee, which were or will be entered into in connection with the entry into such employee’s employment with the Company pursuant to Nasdaq Stock Market Rule 5635(c)(4) (the “Inducement PSA Agreements”).
I have examined the Certificate of Incorporation and By-laws of the Company, each as amended and restated to date, and originals, or copies certified to my satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as I have deemed material for the purposes of this opinion.
In my examination of the foregoing documents, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.
I assume that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Inducement RSU Agreement and the Inducement PSA Agreements, as applicable, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.
I express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware.
It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Please note that I am opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, I am of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Inducement RSU Agreement and the Inducement PSA Agreements, as applicable, the Shares will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, I do not hereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Sincerely,
/s/ Robert J. Terry
Robert J. Terry, Esq.
Senior Vice President, General Counsel and Secretary
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated November 15, 2024, with respect to the consolidated financial statements of Skyworks Solutions, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
Irvine, California
February 14, 2025
SKYWORKS SOLUTIONS, INC.
RESTRICTED STOCK UNIT AGREEMENT
INDUCEMENT GRANT
PURSUANT TO NASDAQ STOCK MARKET RULE 5635(C)(4)
Date (the “Grant Date”):
Name (the “Participant”):
Award (the “Award”): restricted stock units
AGREEMENT made on the Grant Date, between Skyworks Solutions, Inc., a Delaware corporation (the “Company”), and the Participant.
The Award is granted to the Participant pursuant to the inducement grant exception under Nasdaq Stock Market Rule 5635(c)(4), and not pursuant to the Company’s Second Amended and Restated 2015 Long-Term Incentive Plan (the “Plan”) or any other equity incentive plan of the Company, as an inducement that is material to the Participant’s employment with the Company. Notwithstanding that the Award is not granted under the Plan, certain defined terms used herein shall have the meaning set forth in the Plan and certain provisions of the Plan shall apply as if the Award were granted under the Plan, in each case as noted herein.
For good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.Grant of Award.
This Restricted Stock Unit Agreement (the “Agreement”) evidences the grant by the Company on the Grant Date to the Participant of the Award. Each Restricted Stock Unit represents the right to receive one share of the common stock, $0.25 par value per share, of the Company (“Common Stock”) upon the satisfaction of the vesting conditions as provided in Section 2 of this Agreement. The shares of Common Stock that are issuable upon vesting are referred to in this Agreement as “Shares.” No Shares shall be issued by the Company and delivered to the Participant unless, and until, all conditions set forth herein for such issuance and delivery are met. If the Participant does not accept this Award during the period beginning with the Grant Date and ending on the day that is two (2) business days prior to the first applicable vesting date, as set forth in Section 2, then the Award will be forfeited immediately following such period and the Participant will have no further rights with respect to the Award or any Shares issuable thereunder.
2.Vesting Schedule; Forfeiture.
(a)Vesting Schedule. Unless otherwise provided in this Agreement, the Award shall vest in accordance with the following vesting schedule: 25% of the total number of restricted stock units under the Award shall vest on November 5, 2025; 25% of the total number of restricted stock units under the Award shall vest on November 5, 2026; 25% of the total number of restricted stock units under the Award shall vest on November 5, 2027; and 25% of the total number of restricted stock units under the Award shall vest on November 5, 2028, provided the Participant continues to provide active service to the Company and/or its subsidiaries and affiliates on each vesting date. The Company shall have the sole discretion to define what constitutes providing active services for vesting purposes (including whether the Participant may still be considered to be providing services while on a leave of absence in accordance with the Company’s leave policies).
(b)Forfeiture upon Termination of Service.
Except as otherwise provided in this Agreement or in the Change in Control / Severance Agreement between the Participant and the Company (the “CIC / Severance Agreement”), in the event that the Participant ceases to be employed by the Company for any reason or no reason, with or without Cause (as defined in the CIC/ Severance Agreement), all of the Restricted Stock Units that have not yet vested pursuant to Section 2(a) of this Agreement as of the time of such Termination of Service (as defined in the Plan) shall be forfeited immediately and automatically, without the payment of any consideration to the Participant, effective as of such Termination of Service. The Participant shall have no further rights with respect to any Restricted Stock Units that are so forfeited. If the Participant is employed by a Subsidiary (as defined in the Plan) of the Company, any references in this Agreement to employment with the Company shall instead be deemed to refer to employment with such Subsidiary.
3.Issuance of Shares.
(a)Subject to the provisions of this Agreement, any Shares subject to vested Restricted Stock Units shall be issued within 30 days following the applicable vesting date as set forth in Section 2 above. Settlement of Restricted Stock Units shall be in Shares only.
(b)The Company shall not be obligated to issue and deliver the Shares to the Participant on any vesting date, unless the issuance and delivery of the Shares shall comply with all relevant provisions of law and other legal requirements including, without limitation, any applicable federal or state or foreign securities laws and the requirements of any stock exchange upon which the Shares may then be listed.
4.Restrictions on Transfer.
Except as otherwise determined by the Board of Directors of the Company (the “Board”), the Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise, the Award or the Shares subject to the Award (until such Shares have been issued upon vesting of the Award pursuant to Section 3(a) hereof), or any interest therein, except by will or the laws of descent and distribution. References to the Participant, to the extent relevant in the context, shall include references to authorized transferees.
5.Dividend and Other Shareholder Rights.
Neither the Participant nor any person claiming under or through the Participant shall be, or have any rights or privileges of, a stockholder of the Company in respect of the Shares issuable pursuant to the Restricted Stock Units granted hereunder until the Shares have been issued by the Company and delivered to the Participant.
6.Withholding Taxes; No Section 83(b) Election.
(a)The Company shall have the authority and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy federal, state, local and foreign taxes (including applicable income and payroll taxes) required by law to be withheld with respect to any taxable event concerning the Participant arising as a result of the Award. On the date that Shares are to be issued upon vesting of the Award pursuant to Section 3 hereof, the Company shall automatically, and without any action or election by the Participant, withhold a number of Shares having a Fair Market Value (as defined in the Plan) on such date equal to the amount sufficient to satisfy the taxes required by law to be withheld, based on the minimum statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such taxable income; provided, however, that if the Participant is permitted by the Board to elect to use a higher withholding rate, the number of Shares withheld shall be based on such higher withholding rate.
(b)The Participant acknowledges that no election under Section 83(b) of the Internal Revenue Code of 1986 may be filed with respect to this Award or the Shares issued hereunder.
7.General
(a)Administration. The Award shall be administered by the Board or, to the extent such authority is delegated by the Board to the Committee (as defined in the Plan), such Committee. The Board shall have the authority to adopt, amend and repeal such administrative rules, guidelines and practices relating to the Award as it shall deem advisable. The Board may correct any defect, supply any omission or reconcile any inconsistency in the Award in the manner and to the extent it shall deem expedient to carry the Award into effect and it shall be the sole and final judge of such expediency. All decisions by the Board shall be made in its sole discretion and shall be final and binding on all persons having or claiming any interest in the Award. No director or person acting pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under the Award made in good faith. References to the Board herein shall include the Committee to the extent that the Board has delegated authority to administer the Award to the Committee.
(b)Changes in Capitalization/ Reorganization Events. The provisions of Section 10 of the Plan related to changes in capitalization and Reorganization Events (as defined in the Plan) shall apply to this Award.
(c)Amendment; Acceleration. The Board may amend, modify or terminate the Award, including but not limited to, substituting therefor another award of the same or a different type and changing the date of realization, provided that the Participant’s consent to such action shall be required unless the Board determines that such action, taking into account any related action, would not materially and adversely affect the Participant. The Board may at any time provide that the Award shall become immediately free from some or all restrictions and conditions or otherwise become realizable in whole or in part.
8.Miscellaneous.
(a)No Advice Regarding Grant. The Participant is hereby advised to consult with the Participant’s own personal tax, legal and financial advisors regarding the Participant’s receipt of this Award before taking any action related to the Award. The Participant acknowledges and agrees that the Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
(b)No Rights to Employment. The Participant acknowledges and agrees that the vesting of the Shares pursuant to Section 2 hereof is earned only by continuing to provide active service to the Company as an employee at the will of the Company. The Participant further acknowledges and agrees that the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an employee for the vesting period, for any period, or at all.
(c)Invention Assignment. The Participant agrees that he or she will promptly disclose to the Company any invention or discovery, whether or not patentable (hereafter termed “invention” or “inventions”) that he or she makes or conceives, or first actually reduces to practice, solely or jointly with others, during the Participant’s employment, and which at the time of disclosure to the Company or at the time of making or conceiving, or first actually reducing to practice (a) results from or is related to any assignments given to or assumed by the Participant, or (b) is subject to any contractual obligation of the Company to a third party, or (c) utilized the time, equipment, supplies, facilities, or trade secret information of the Company, or (d) pertains to any actual or anticipated Company work, product, research, business activity, or any logical extension thereof, and the Participant will assign and does hereby assign to the Company the Participant’s entire right, title and interest (domestic and foreign and including all rights under the International Convention for the Protection of Industrial Property) in all such inventions, subject to the requirements of law, and without further compensation or award of any kind to the Participant from the Company, or any customer.
(d)Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(e)Waiver. Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any particular instance, by the Board.
(f)Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 4 of this Agreement.
(g)Notice. All notices required or permitted hereunder shall be in writing and deemed effectively given upon personal delivery or five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath his or its respective signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 8.
(h)Pronouns. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
(i)Governing Law. This Agreement and any disputes hereunder shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of Delaware.
(j)Participant’s Acknowledgments. The Participant acknowledges that the Participant: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; and (iv) is fully aware of the legal and binding effect of this Agreement.
(k)Section 409A. This Agreement is intended to be exempt from, or compliant with, Section 409A and shall be interpreted and construed consistently therewith. If and to the extent (A) any portion of any payment, compensation or other benefit provided to a Participant pursuant to the Award in connection with the Participant’s Termination of Service constitutes “nonqualified deferred compensation” within the meaning of Section 409A, and (B) the Participant is a specified employee as defined in Section 409A(a)(2)(B)(i) of the Code (as defined in the Plan), in each case as determined by the Company in accordance with its procedures, by which determinations the Participant (through accepting the Award) agrees that to be bound, such portion of the payment, compensation or other benefit shall not be paid before the day that is six months plus one day after the date of “separation from service” (as determined under Section 409A) (the “New Payment Date”), except as Section 409A may then permit. The aggregate of any payments that otherwise would have been paid to the Participant during the period between the date of separation from service and the New Payment Date shall be paid to the Participant in a lump sum on such New Payment Date, and any remaining payments will be paid on their original schedule. Notwithstanding anything herein to the contrary, in no event
shall the Company have any liability to the Participant or to any other person in the event that the Agreement is determined to not be exempt from or compliant with Section 409A.
(l)Unfunded Rights. The right of the Participant to receive Shares pursuant to this Agreement is an unfunded and unsecured obligation of the Company. The Participant shall have no rights under this Agreement other than those of an unsecured general creditor of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
Skyworks Solutions, Inc.
______________________
Print Name______________________________
Participant (Signature):____________________
Print Name ______________________________
SKYWORKS SOLUTIONS, INC.
PERFORMANCE SHARE AGREEMENT
INDUCEMENT GRANT
PURSUANT TO NASDAQ STOCK MARKET RULE 5635(C)(4)
Date (the “Grant Date”):
Name (the “Participant”):
Award (the “Award”): performance shares
AGREEMENT made on the Grant Date, between Skyworks Solutions, Inc., a Delaware corporation (the “Company”), and the Participant.
The Award is granted to the Participant pursuant to the inducement grant exception under Nasdaq Stock Market Rule 5635(c)(4), and not pursuant to the Company’s Second Amended and Restated 2015 Long-Term Incentive Plan (the “Plan”) or any other equity incentive plan of the Company, as an inducement that is material to the Participant’s employment with the Company. Notwithstanding that the Award is not granted under the Plan, certain defined terms used herein shall have the meaning set forth in the Plan and certain provisions of the Plan shall apply as if the Award were granted under the Plan, in each case as noted herein.
For good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.Grant of Award.
This Performance Share Agreement (the “Agreement”) evidences the grant by the Company on the Grant Date to the Participant of the Award. Each performance share represents the right to receive such number of shares of the common stock, $0.25 par value per share, of the Company (“Common Stock”) as determined in accordance with the terms set forth in Exhibit A to this Agreement. The shares of Common Stock that are issuable upon, and to the extent of, the achievement of the Performance Goals are referred to in this Agreement as “Shares.” No Shares shall be issued by the Company and delivered to the Participant unless, and until, all conditions set forth herein for such issuance and delivery are met, including but not limited to the achievement of an applicable Performance Goal. If the Participant does not accept this Award during the period beginning with the Grant Date and ending on the day that is two (2) business days prior to the first applicable vesting date, as set forth in Exhibit A, then the Award will be forfeited immediately following such period and the Participant will have no further rights with respect to the Award or any Shares issuable thereunder.
2.Earning Shares; Forfeiture.
(a)Shares shall be deemed earned if, and to the extent, the applicable Performance Goal is satisfied as of the applicable Measurement Date set forth in Exhibit A. If the applicable Performance Goal is not met as of the applicable Measurement Date, the Company shall have no obligation to issue the portion of the Shares allocable to such Performance Goal, and this Award shall be forfeited with respect thereto.
(b)Notwithstanding the foregoing, if the Participant’s employment with the Company terminates for any reason prior to the applicable vesting date, as set forth in Exhibit A, the Company shall have
no obligation to issue any Shares (or any earned but unissued Shares, if applicable) to the Participant under this Agreement and this Award shall be forfeited, except as otherwise expressly provided in this Agreement (including Exhibit A) or, solely to the extent set forth in Exhibit A, in the Change in Control / Severance Agreement between the Participant and the Company (the “CIC / Severance Agreement”). The Company shall have the sole discretion to define what constitutes providing active services for vesting purposes (including whether the Participant may still be considered to be providing services while on a leave of absence in accordance with the Company’s leave policies).
3.Issuance of Shares.
(a)Subject to the provisions of the Agreement, the number of Shares issued to the Participant shall be determined under Exhibit A and such Shares, if any, shall be issued to the Participant within 30 days of the applicable vesting date, or such other date as provided in Exhibit A, as applicable.
(b)The Company shall not be obligated to issue and deliver the Shares to the Participant within 30 days of the applicable vesting date, or on any other date as provided in Exhibit A, unless the issuance and delivery of the Shares shall comply with all relevant provisions of law and other legal requirements including, without limitation, any applicable federal or state securities laws and the requirements of any stock exchange upon which shares of Common Stock may then be listed.
4.Restrictions on Transfer.
Except as otherwise determined by the Board of Directors of the Company (the “Board”), the Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise, the Award or the Shares subject to the Award (until such Shares have been issued upon vesting of the Award pursuant to Section 3(a) hereof), or any interest therein, except by will or the laws of descent and distribution. References to the Participant, to the extent relevant in the context, shall include references to authorized transferees.
5.Dividend and Other Shareholder Rights.
Neither the Participant nor any person claiming under or through the Participant shall be, or have any rights or privileges of, a stockholder of the Company in respect of the Shares issuable pursuant to the performance shares granted hereunder until the Shares have been issued by the Company and delivered to the Participant.
6.Withholding Taxes; No Section 83(b) Election.
(a)The Company shall have the authority and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy federal, state, local and foreign taxes (including applicable income and payroll taxes) required by law to be withheld with respect to any taxable event concerning the Participant arising as a result of the Award. On the date that Shares are to be issued upon vesting of the Award pursuant to Section 3 hereof, the Company shall automatically, and without any action or election by the Participant, withhold a number of Shares having a Fair Market Value (as defined in the Plan) on such date equal to the amount sufficient to satisfy the taxes required by law to be withheld, based on the minimum statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such taxable income; provided, however, that if the Participant is permitted by the Board to elect to use a higher withholding rate, the number of Shares withheld shall be based on such higher withholding rate.
(b)The Participant acknowledges that no election under Section 83(b) of the Internal Revenue Code of 1986 may be filed with respect to this Award or the Shares issued hereunder.
7.General.
(a)Administration. The Award shall be administered by the Board or, to the extent such authority is delegated by the Board to the Committee (as defined in the Plan), such Committee. The Board shall have the authority to adopt, amend and repeal such administrative rules, guidelines and practices relating to the Award as it shall deem advisable. The Board may correct any defect, supply any omission or reconcile any inconsistency in the Award in the manner and to the extent it shall deem expedient to carry the Award into effect and it shall be the sole and final judge of such expediency. All decisions by the Board shall be made in its sole discretion and shall be final and binding on all persons having or claiming any interest in the Award. No director or person acting pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under the Award made in good faith. References to the Board herein shall include the Committee to the extent that the Board has delegated authority to administer the Award to the Committee.
(b)Changes in Capitalization/ Reorganization Events. The provisions of Section 10 of the Plan related to changes in capitalization and Reorganization Events (as defined in the Plan) shall apply to this Award.
(c)Amendment; Acceleration. The Board may amend, modify or terminate the Award, including but not limited to, substituting therefor another award of the same or a different type and changing the date of realization, provided that the Participant’s consent to such action shall be required unless the Board determines that such action, taking into account any related action, would not materially and adversely affect the Participant. The Board may at any time provide that the Award shall become immediately free from some or all restrictions and conditions or otherwise become realizable in whole or in part.
8.Miscellaneous.
(a)No Advice Regarding Grant. The Participant is hereby advised to consult with the Participant’s own personal tax, legal and financial advisors regarding the Participant’s participation in the Plan before taking any action related to the Plan. The Participant acknowledges and agrees that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
(b)No Rights to Employment. The Participant acknowledges and agrees that his or her right to receive Shares pursuant to Section 2 hereof is triggered only by the achievement by the Company of the Performance Goal(s), continuing to provide active service to the Company until the Board has made a determination that such Performance Goal(s) has (have) been achieved and the satisfaction of any continuing service requirements set forth in Exhibit A. The Participant further acknowledges and agrees that the transactions contemplated hereunder and the Performance Goals set forth herein do not constitute an express or implied promise of continued engagement as an employee for the Performance Period, for any period, or at all.
(c)Clawback Policy. By accepting this Award, the Participant acknowledges and agrees that this Award is subject to the provisions of any compensation clawback or recovery policy that the Company has in effect or may adopt in the future. The Participant agrees that in the event it is determined in accordance with any such policy that any compensation or compensatory award granted, earned or paid to the Participant under this Award must be forfeited or reimbursed to the Company, the Participant will promptly take any action necessary to effectuate such forfeiture and/or reimbursement.
(d)Invention Assignment. The Participant agrees that he or she will promptly disclose to the Company any invention or discovery, whether or not patentable (hereafter termed “invention” or “inventions”) that he or she makes or conceives, or first actually reduces to practice, solely or jointly with others, during the Participant’s employment, and which at the time of disclosure to the Company or at the time of making or conceiving, or first actually reducing to practice (a) results from or is related to any assignments given to or assumed by the Participant, or (b) is subject to any contractual obligation of the Company to a third party, or (c) utilized the time, equipment, supplies, facilities, or trade secret information of the Company, or (d) pertains to any actual or anticipated Company work, product, research, business activity, or any logical extension thereof, and the Participant will assign and does hereby assign to the Company the Participant’s entire right, title and interest (domestic and foreign and including all rights under the International Convention for the Protection of Industrial Property) in all such inventions, subject to the requirements of law, and without further compensation or award of any kind to the Participant from the Company, or any customer.
(e)Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(f)Waiver. Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any particular instance, by the Board.
(g)Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 4 of this Agreement.
(h)Notice. All notices required or permitted hereunder shall be in writing and deemed effectively given upon personal delivery or five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath his or its respective signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 8.
(i)Pronouns. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
(j)Governing Law. This Agreement and any disputes hereunder shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of Delaware.
(k)Participant’s Acknowledgments. The Participant acknowledges that he or she: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; and (iv) is fully aware of the legal and binding effect of this Agreement.
(l)Section 409A. This Agreement is intended to be exempt from, or compliant with, Section 409A and shall be interpreted and construed consistently therewith. If and to the extent (A) any portion of any payment, compensation or other benefit provided to a Participant pursuant to the Award in connection with the Participant’s Termination of Service constitutes “nonqualified deferred compensation” within the meaning of Section 409A, and (B) the Participant is a specified employee as defined in Section 409A(a)(2)(B)(i) of the Code (as defined in the Plan), in each case as determined by the Company in accordance
with its procedures, by which determinations the Participant (through accepting the Award) agrees that to be bound, such portion of the payment, compensation or other benefit shall not be paid before the day that is six months plus one day after the date of “separation from service” (as determined under Section 409A) (the “New Payment Date”), except as Section 409A may then permit. The aggregate of any payments that otherwise would have been paid to the Participant during the period between the date of separation from service and the New Payment Date shall be paid to the Participant in a lump sum on such New Payment Date, and any remaining payments will be paid on their original schedule. Notwithstanding anything herein to the contrary, in no event shall the Company have any liability to the Participant or to any other person in the event that the Agreement is determined to not be exempt from or compliant with Section 409A.
(m)Unfunded Rights. The right of the Participant to receive Shares pursuant to this Agreement is an unfunded and unsecured obligation of the Company. The Participant shall have no rights under this Agreement other than those of an unsecured general creditor of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
Skyworks Solutions, Inc.
______________________
Print Name ______________________________
Participant (Signature):____________________
Print Name ______________________________
Skyworks Solutions (NASDAQ:SWKS)
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