QUALCOMM INC/DE (Form: 8-K, Received: 03/02/2018 16:50:40)

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported)

QUALCOMM Incorporated

(Exact name of registrant as specified in its charter)

(State or other jurisdiction of incorporation)

000-19528	95-3685934
(Commission File Number)	(IRS Employer Identification No.)

5775 Morehouse Drive, San Diego, CA	92121
(Address of principal executive offices)	(Zip Code)

(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

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 13(a) of the Exchange Act. ☐

Item 1.01. Entry into a Material Definitive Agreement .

On February 26, 2018, QUALCOMM Incorporated (“Qualcomm”) entered into Waiver and Consent No. 2 (the “Waiver”), among Qualcomm, the lenders party thereto and Goldman Sachs Bank USA, as administrative agent, to the Credit Agreement dated as of November 8, 2016 (the “Credit Agreement”), among Qualcomm, the lenders party thereto and Goldman Sachs Bank USA, as administrative agent, the proceeds of which will be used, in part, to finance Qualcomm’s acquisition of complete control of the business of NXP Semiconductors N.V., a public limited liability company organized under the laws of The Netherlands (the “Acquired Business”), pursuant to that certain purchase agreement dated as of October 27, 2016, as amended by Amendment No. 1 dated as of February 20, 2018 (the “Acquisition Agreement”), by and between Qualcomm River Holdings, B.V., a private company with limited liability organized under the laws of The Netherlands and a wholly-owned, indirect subsidiary of Qualcomm, and the Acquired Business. The Waiver (i) permits any modification, consent, amendment or waiver to the Acquisition Agreement that increases the offer consideration from $110.00 per share, in cash, without interest, to not more than $127.50 per share, in cash, without interest (the “Contemplated Amendment”), (ii) waives the consent requirement pursuant to Section 4.02(b) of the Credit Agreement solely with respect to the Contemplated Amendment and (iii) waives the requirement pursuant to Section 4.02(d) of the Credit Agreement that Qualcomm deliver (x) audited financial statements for the Acquired Business for the fiscal year ended December 31, 2017, (y) unaudited financial statements of the Acquired Business for the fiscal quarter ended March 31, 2018 and (z) customary pro forma financial statements of Qualcomm giving effect to the transactions contemplated by the Credit Agreement (and such other acquisitions).

The foregoing description of the Waiver is not complete and is qualified in its entirety by reference to the Waiver, which is filed as Exhibit 1.1 to this Form 8-K.

Item 9.01. Financial Statements and Exhibits .

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	QUALCOMM Incorporated

Date: March 2, 2018	By:	/s/ David Wise
		Name: David Wise
		Title: Senior Vice President and Treasurer

WAIVER AND CONSENT NO. 2 TO CREDIT AGREEMENT

WAIVER AND CONSENT TO CREDIT AGREEMENT, dated as of February 26, 2018 ( this “Waiver and Co nsent”), with respect to that certain Credit Agreement dated as of November 8, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”) among QUALCOMM INCORPORATE D, a Dela ware corporation (the “Borrower”), each lender from time to time party thereto (collectively , the “Lenders ” and individually, a “Lender”) and GOLDMAN SACHS BANK USA, as administrative agent for the Lenders (together with any successor agent appointed pursuant to the Credit Agreement, in such ca pacity, the “Administrative Agent”).

In consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:

1. Defined Terms . All capitalized terms used but not defined herein shall have their respective meanings set forth in the Credit Agreement.

2. Waiver and Consent under the Credit Agreement .

a. The Required Lenders hereby (x) consent to any modification, consent, amendment or waiver to the Acquisition Agreement that increases the Offer Consideration (as defined in the Acquisition Agreement as in effect on October 27, 2016) from $110.00 per Share (as defined in the Acquisition Agreement as in effect on October 27, 2016), in cash, without interest, to not more than $127.50 per Share, in cash, without interest (the “ Contemplated Amendment ”) and (y) waive the requirement for Arranger consent pursuant to Section 4.02(b) of the Credit Agreement solely to with respect to the Contemplated Amendment.

b. The Required Lenders hereby waive the requirement pursuant to Section 4.02(d) to deliver (x) audited financial statements for the Acquired Business for the fiscal year ended December 31, 2017, (y) unaudited financial statements of the Acquired Business for the fiscal quarter ended March 31, 2018 and (z) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions).

c. The Waiver and Consent set forth in this Section 2 shall be effective only in this specific instance and for the specific purposes set forth herein, and does not allow for any other or further departure from the terms and conditions of the Credit Agreement or any other Loan Document, which terms and conditions shall continue in full force and effect

3. Effectiveness . This Waiver and Consent will become effective upon the date on which the Administrative Agent shall have received from the Borrower and the Required Lenders an executed counterpart of this Waiver and Consent (or photocopies thereof sent by fax, pdf or other electronic means, each of which shall be enforceable with the same effect as a signed original).

4. Representations and Warranties . The Borrower represents and warrants as of the date hereof that, after giving effect to this Waiver and Consent, (i) the representations and warranties of the Borrower set forth in Article V of the Credit Agreement will be true in all material respects on and as of the date hereof and (ii) no Default will have occurred and be continuing on such date. It is understood and agreed that the representations and warranties made by the Borrower in this paragraph are subject to the terms of Section 4.03 of the Credit Agreement.

5. Continuing Effect of the Credit Agreement . This Waiver and Consent is limited solely to the matters expressly set forth herein and does not constitute a waiver and consent to any provision of the Credit Agreement other than as set forth in Section 2 above. Subject to the express terms of this Waiver and Consent, the Credit Agreement remains in full force and effect, and the Borrower and the Lenders acknowledge and agree that all of their respective obligations hereunder and under the Credit Agreement shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Waiver and Consent except to the extent specified herein. Upon the effectiveness of this Waiver and Consent, each reference in the Credit Agreement and in any exhibits attached thereto to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference to the Credit Agreement after giving effect hereto.

6. Miscellaneous . The provisions of Sections 10.04 (Expenses; Indemnity; Damage Waiver), 10.07 (Treatment of Certain Information; Confidentiality), 10.10 (Counterparts; Integration; Effectiveness), 10.11 (Survival of Representations and Warranties), 10.12 (Severability), 10.14 (Governing Law; Jurisdiction; Etc.), 10.16 (No Advisory or Fiduciary Responsibility), and 10.17 (Electronic Execution of Assignments and Certain Other Documents) of the Credit Agreement shall apply with like effect to this Waiver and Consent.

This Waiver and Consent shall constitute a “Loan Document” for all purposes under the Credit Agreement.

[Signature Pages Follow]

IN WITNESS WHEREOF, the Administrative Agent and the Required Lenders have caused this Waiver and Consent to be executed as of the date first above written.

	GOLDMAN SACHS BANK USA , as Administrative Agent

	By:	/s/ Elizabeth Fischer
		Name: Elizabeth Fischer
		Title: Authorized Signatory