As filed with the Securities and Exchange Commission on August 8, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NXP Semiconductors N.V.
(Exact Name of Registrant as Specified in its Charter)
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The Netherlands
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Not Applicable
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(State of Incorporation
or Organization)
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(I.R.S. Employer
Identification No.)
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High Tech Campus 60, 5656 AG Eindhoven,
The Netherlands
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Not Applicable
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(Address of Principal Executive Offices)
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(Zip Code)
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Employee Stock Purchase Plan
(Full title of the plans)
James N. Casey
1109 McKay Drive
M/S 54SJ
San Jose, CA 95131-1706
United States
+1 408 434 3000
(Name, address and telephone number, including area code, of agent for service)
With a copy to:
Mark Brod
Simpson Thacher & Bartlett LLP
CityPoint
One Ropemaker Street
London EC2Y 9HU
England
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount
to
be
registered
(1)
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Proposed
maximum
offering price
per share
(2)
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Shares of common stock, par value €0.20
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140,000.00
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$35.47
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$4,965,800.00
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$677.34
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Total:
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$677.34
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement (the “Registration Statement”)
also covers an indeterminate number of additional shares which may be offered and issued to prevent dilution resulting from stock split, stock dividends or similar transactions.
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(2)
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For purposes of calculating the registration fee pursuant to Rule 457(c) and (h)(1) of the Securities Act of 1933, as amended, the proposed maximum offering price per
share is based on the average high and low price of the shares on August 6, 2013.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information
required by Part I has been sent or given to employees as specified by Rule 428 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents, which have been filed by NXP Semiconductors N.V. (the “Company”) with the Commission, are incorporated in this Registration Statement by reference:
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(a)
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the Company’s annual report on Form 20-F for fiscal year ended December 31, 2012 filed on March 1, 2013;
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(b)
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the Company’s current report on Form 6-K filed on May 6, 2013 including the Company’s interim report for the period ended March 31, 2013, and the
Company’s current report on Form 6-K filed on August 2, 2013 including the Company’s interim report for the period ended June 30, 2013; and
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(c)
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the description of the Company’s shares of common stock, nominal value €0.20 per share, included under the caption “Description of Registrant’s
Securities to be Registered” included in the Company’s registration statement on Form 8-A, filed with the Commission on August 3, 2010 (File No. 001-34841), as amended or supplemented.
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All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) after the date of this Registration Statement, but 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 herein and to be a part hereof from the date of 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 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.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
II-1
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Item 6.
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Indemnification of Directors and Officers.
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Under Dutch law, indemnification provisions may be included in the articles of association. Accordingly, our articles of association, in effect since August 2, 2010 provide that we shall
reimburse the members of the board of directors and the former members of the board of directors for damages and various costs and expenses related to claims brought against them in connection with the exercise of their duties. However, there shall
be no entitlement to reimbursement if and to the extent that (i) a Dutch court has established in a final and conclusive decision that the act or failure to act of the person concerned may be characterized as willful (
opzettelijk
),
intentionally reckless (
bewust roekeloos
) or seriously culpable (
ernstig verwijtbaar
) conduct, unless Dutch law provides otherwise or this would, in view of the circumstances of the case, be unacceptable according to standards of
reasonableness and fairness, or (ii) the costs or financial loss of the person concerned are covered by an insurance and the insurer has paid out the costs or financial loss. We may enter into indemnification agreements with the members of the
board of directors and our officers to provide for further details on these matters. We expect to purchase directors’ and officers’ liability insurance for the members of the board of directors and certain other officers, substantially in
line with that purchased by similarly situated companies.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
Reference is
made to the attached exhibit index, which is incorporated by reference herein.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or 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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
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(iii)
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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;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(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.
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(2)
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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.
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II-2
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(3)
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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.
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(b)
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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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 Company has been advised that in the opinion of the 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 Company 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 Company 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.
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SIGNATURES OF THE REGISTRANT
Pursuant to the requirements of the Securities Act, the registrant certifies that it has duly 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 Eindhoven, the Netherlands on August 8, 2013.
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NXP Semiconductors N.V.
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By:
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/s/ Richard L. Clemmer
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Name:
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Richard L. Clemmer
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Title:
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Chief Executive Officer
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We, the undersigned officers and directors of NXP Semiconductors N.V. hereby severally constitute
and appoint Peter Kelly, James N. Casey, Guido Dierick and Dr. Jean Schreurs, each of them singly (with full power to each of them to act alone), as our true and lawful attorneys-in-fact and agents, with full power of substitution and
re-substitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement on Form
S-8 has been signed by the following persons in the capacities and on the dates indicated:
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Signatures
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Title
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Date
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/s/ Richard L. Clemmer
Richard L. Clemmer
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Chief Executive Officer and Director
(Principal executive officer)
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August 8, 2013
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/s/ Peter Kelly
Peter Kelly
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Chief Financial Officer
(Principal financial and
accounting officer)
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August 8, 2013
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/s/ Sir Peter Bonfield
Sir Peter Bonfield
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Director
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August 8, 2013
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/s/ Johannes P. Huth
Johannes P. Huth
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Director
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August 8, 2013
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/s/ Egon Durban
Egon Durban
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Director
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August 8, 2013
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/s/ Kenneth A. Goldman
Kenneth A. Goldman
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Director
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August 8, 2013
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/s/ Josef Kaeser
Josef Kaeser
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Director
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August 8, 2013
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/s/ Ian Loring
Ian Loring
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Director
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August 8, 2013
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/s/ Michel Plantevin
Michel Plantevin
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Director
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August 8, 2013
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/s/ Vikram Bhatia
Vikram Bhatia
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Director
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August 8, 2013
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/s/ Roy Mackenzie
Roy Mackenzie
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Director
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August 8, 2013
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/s/ Jean-Pierre Saad
Jean-Pierre Saad
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Director
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August 8, 2013
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SIGNATURES OF THE AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United
States of NXP Semiconductors N.V., has signed this registration statement in San Jose, CA, on August 8, 2013.
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NXP Semiconductors N.V.
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By:
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/s/ James N. Casey
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Name:
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James N. Casey
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Title:
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Authorized Representative in the United States
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EXHIBIT INDEX
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Exhibit
Number
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Description of Document
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3.1
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Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of Amendment No. 7 to the Registration Statement on Form F-1 of NXP Semiconductors N.V., filed on August 2,
2010 (File No. 333-166128)).
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3.2
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Articles of Association of NXP Semiconductors N.V. (incorporated by reference to Exhibit 3.2 of Amendment No. 7 to the Registration Statement on Form F-1 of NXP Semiconductors N.V.,
filed on August 2, 2010 (File No. 333-166128)).
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4.1
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Employee Stock Purchase Plan Terms and Conditions.
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5.1
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Opinion of Dr. Jean Schreurs, Senior Corporate Counsel of NXP Semiconductors N.V.
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23.1
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Consent of KPMG Accountants N.V.
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23.4
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Consent of Dr. Jean Schreurs, Senior Corporate Counsel of NXP Semiconductors N.V. (included in Exhibit 5.1).
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24.1
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Power of Attorney of certain officers and directors of the Company to file future amendments (set forth on the signature pages of this Registration Statement).
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Exhibit 4.1
Employee Stock Purchase Plan
1 Purpose
The purpose of the Plan is to provide employees of the Company and its Designated Subsidiaries and Designated Affiliates with an opportunity to purchase
Shares of the Company. This Plan includes two components: a Code Section 423 Component (the ‘423 Component’) and a non-Code Section 423 Component (the ‘Non-423 Component’). It is the intention of the Company to have the
423 Component qualify as an ‘employee stock purchase plan’ under Section 423 of the Code. The provisions of the 423 Component, accordingly, shall be construed so as to extend and limit participation in a uniform and nondiscriminatory
basis consistent with the requirements of Section 423 of the Code. In addition, this Plan authorizes the grant of purchase rights under the Non-423 Component that does not qualify as an ‘employee stock purchase plan’ under
Section 423 of the Code; such purchase rights shall be granted pursuant to rules, procedures or subplans adopted by the Committee designed to achieve tax, securities laws or other objectives for Eligible Employees and the Company. Except as
otherwise provided herein, the Non-423 Component will be operated and administered in the same manner as the 423 Component.
2 Definitions
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(a)
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Administrator
means the Company’s Chief Executive Officer, Chief Financial Officer, Chief Human Resources Officer or one or more of the Company’s
officers or management team appointed by the Committee to administer the day-to-day operations of the Plan. Except as otherwise provided in the Plan, the Committee may assign any of its administrative tasks to the Administrator.
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(b)
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Affiliate
means (a) any entity that, directly or indirectly, is controlled by, controls or is under common control with, the Company and (b) any entity
in which the Company has a significant equity interest, in either case as determined by the Committee, whether now or hereafter existing.
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(c)
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Board
means the Board of Directors of the Company.
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(d)
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Change in Control
shall be deemed to have occurred if:
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(i)
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any person (as that term is used in Sections 13(d) and 14(d) of the Exchange Act), not being a Private Investor(s), (1) is or becomes the beneficial owner (as that
term is used in Section 13(d) of the Exchange Act) of 50% or more of the total fair market value or total voting power of the Company (“Voting Securities”) or (2) acquires (or has acquired during the 12-month period ending on the
date of the most recent acquisition by such person) ownership of the stock of the Company possessing 30% or more of the Voting Securities, excluding, in each case, however, the following: (A) any acquisition directly from the Company, other
than an acquisition by virtue of the exercise of a conversion privilege unless the security being so converted was itself acquired directly from the Company; (B) any acquisition by the Company; (C) any acquisition by an employee benefit
plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company; (D) the acquisition of additional stock or voting power by a person considered to own more than 50% of the total fair market value or Voting
Securities in the case of clause (1) of this clause (i) or by a person considered to own more than 30% of the Voting Securities in the case of clause (2) of this clause (i); or (E) any acquisition pursuant to a transaction that
complies with clauses (A), (B) and (C) of clause (iii) below;
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(ii)
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more than 50% of the members of the Board shall, during a 12-month period, cease to be Continuing Directors (which term, as used herein, means the directors of the
Company: (A) who were members of the Board on the Effective Date; or (B) who subsequently became directors of the Company and who were elected or designated to be candidates for election as nominees of the Board, or whose election or
nomination for election by the Company’s shareholders was otherwise approved, by a vote of a majority of the Continuing Directors then on the Board but shall not include, in any event, any individual whose initial assumption of office occurs as
a result of either an actual or threatened election contest (as such terms are used in Rule 14(a)-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person
other than the Board); or
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(iii)
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the Company shall be merged or consolidated with, or, in any transaction or series of transactions, substantially all of the business or assets of the Company shall be
sold or otherwise acquired by, another corporation or entity unless, as a result thereof: (A) the shareholders of the Company immediately prior thereto shall beneficially own, directly or indirectly, at least 60% of the combined Voting
Securities of the surviving, resulting or transferee corporation or entity (including, without limitation, a corporation that as a result of such transaction owns the Company or all or substantially all of the assets of the Company, either directly
or through one or more subsidiaries) (‘Newco’) immediately thereafter in substantially the same proportions as their ownership immediately prior to such corporate transaction; (B) no person, other than a Private Investor(s),
beneficially owns (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, and the rules and regulations promulgated thereunder (as in effect on the date hereof)), directly or indirectly, 30% or more of the combined Voting Securities
of Newco immediately after such corporate transaction except to the extent that such ownership of the Company existed prior to such corporate transaction; and (C) more than 50% of the members of the Board of Directors of Newco shall be
Continuing Directors.
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(e)
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Code
means the U.S. Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto, and the regulations promulgated thereunder.
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(f)
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Committee
means the Board, or such other committee of the Board as may be designated by the Board to administer the Plan.
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(g)
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Company
means NXP Semiconductors N.V.
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(h)
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Compensation
means base pay and for the avoidance of doubt excludes overtime pay, commissions, income from equity compensation awards, bonuses and other
compensation, unless otherwise determined by the Administrator.
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(i)
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Designated
Affiliate
means any Affiliate selected by the Committee as eligible to participate in the Non-423 Component.
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(j)
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Designated Subsidiary
means any Subsidiary selected by the Committee as eligible to participate in the 423 Component.
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(k)
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Disability
means the Participant becoming unable to engage in any substantial gainful activity by reason of any medical determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months, within the meaning of Code Section 422(c)(6).
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(l)
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Director
means a member of the Board.
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(m)
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Effective Date
shall mean the date the Plan becomes effective in accordance with Section 25.
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(n)
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Eligible Employee
means (i) any individual who is treated as an active employee in the records of the Company or any Designated Subsidiary or (ii) any
individual who is treated as an active employee in the records of the Company or any Designated Affiliate, in each case regardless of any subsequent reclassification by the Company or by any Designated Subsidiary or Designated Affiliate, any
governmental agency, or any court;
provided
,
however
, in all cases, only as of the first day of the month following the start of service as an active employee of the Company, Designated Subsidiary, or Designated Affiliate and
further provided
, that such individual does not have a NXP executive grade. For purposes of the 423 Component, the employment relationship shall be treated as continuing intact while the individual is on military or sick leave or other bona
fide leave of absence approved by the Company or the Designated Subsidiary so long as the leave does not exceed three (3) months or if longer than three (3) months, the individual’s right to reemployment is provided by statute or has
been agreed to by contract or in a written policy of the Company which provides for a right of reemployment following the leave of absence. The employment relationship shall be treated as continuing intact where an Eligible Employee transfers
employment between the Company, Designated Subsidiaries and/or Designated Affiliates;
provided
,
however
, that an individual who is not employed by the Company or a Designated Subsidiary on the Offering Date and through a date that is
no more than three (3) months prior to the Purchase Date will participate only in the Non-423 Component unless the individual continues to have a right to reemployment with the Company or a Designated Subsidiary provided by statute or contract
or in a written policy of the Company which provides for a right of reemployment following the leave of absence. The Committee shall establish rules to govern other transfers into the 423 Component, and between any separate Offerings established
thereunder, consistent with the applicable requirements of Section 423 of the Code.
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(o)
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Exchange
Act
means the U.S. Securities Exchange Act of 1934, as amended, from time to time, or any successor law thereto, and the regulations promulgated
thereunder.
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(p)
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Fair Market Value
means, with respect to the Shares, as of any date, (i) the closing per-share sales price of the Shares (A) as reported by NASDAQ for
such date or (B) if the Shares are no longer listed on NASDAQ but are listed on any other national stock exchange or national market system, as reported on the stock exchange composite tape for securities traded on such exchange for such date,
or, with respect to each of clauses (A) and (B), if there were no sales on such date, on the closest preceding date on which there were sales of Shares, or, (ii) in the event there shall be no public market for the Shares on such date, the
fair market value of the Shares as determined in good faith by the Committee upon the reasonable application of a reasonable valuation method.
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(q)
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Offering
means an offer under the Plan of a purchase right that may be exercised during an Offering Period as further described in Section 2(s). For
purposes of this Plan, the Committee may designate separate Offerings under the Plan (the terms of which need not be identical) in which Eligible Employees of one or more Designated Subsidiaries or Designated Affiliates will participate, even if the
dates of the applicable Offering Periods of each such Offering are identical.
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(r)
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Offering
Date
means the first Trading Day of each Offering Period.
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(s)
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Offering
Period
means a period of six months during which a purchase right granted pursuant to the Plan may be offered, or such different period for the
offer of the purchase right as may be established by the Committee. In no event shall an Offering Period exceed 27 months. The duration and timing of Offering Periods may be changed pursuant to Section 4.
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(t)
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Parent
means a “parent corporation” of the Company whether now or hereinafter existing as defined in Section 424(e) of the Code.
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(u)
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Participant
means any Eligible Employee who participates in the Plan as described in Section 5.
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(v)
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Participation Election
means any written agreement, enrollment form, contract or other instrument or document (in each case in paper or electronic form)
evidencing that an Eligible Employee has elected to become a Participant in the Plan, which may, but need not, require execution by a Participant.
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(w)
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Plan
means the NXP Semiconductors N.V. Employee Stock Purchase Plan, including both the 423 Component and the Non-423 Component.
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(x)
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Private Investors
means the private investors, including the Private Equity Consortium, as defined and further explained in the registration statement on Form
F-1 which NXP has filed with the US Securities and Exchange Commission on March 30, 2011.
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(y)
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Purchase Date
means the last Trading Day of each Offering Period.
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(z)
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Purchase Price
means a per-Share amount to be paid by a Participant to purchase a Share on the Purchase Date. Such Purchase Price shall be established in the
manner initially specified by the Committee and in effect thereafter unless otherwise changed by the Committee, for each Offering prior to an Offering Period and shall be no less than eighty-five percent (85%) of the Fair Market Value of a
Share on the Purchase Date for the relevant Offering Period. Such Purchase Price may be established by the Committee by any manner or method the Committee determines, pursuant to Section 16, and subject to (i) with respect to the 423
Component, compliance with Section 423 of the Code (or any successor rule or provision or any other applicable law, regulation or stock exchange rule) or (ii) with respect to the Non-423 Component, pursuant to such manner or method as
determined by the Committee to comply with applicable local law.
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(aa)
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Share
means a share of common stock of the Company, par value of €0.20, or such other security of the Company (i) into which such share shall be
changed by reason of a recapitalization, merger, consolidation, split-up, combination, exchange of shares or other similar transaction or (ii) as may be determined by the Committee pursuant to Section 16.
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(bb)
|
Subsidiary
means a “subsidiary corporation” of the Company whether now or hereafter existing, as defined in Section 424(f) of the Code.
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(cc)
|
Trading Day
means a day on which the NASDAQ is open for trading.
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3 Eligibility
Any Eligible Employee on a given Offering Date shall be eligible to
participate in the Plan,
provided
,
however
, that employees who are citizens or residents of a specific jurisdiction may be excluded from participation in the Plan or an Offering if the participation of such Employees is prohibited
under the laws of the applicable jurisdiction or if complying with the laws of the applicable jurisdiction would cause the Plan or an Offering to violate Section 423 of the Code. Further, notwithstanding any provisions of the Plan to the
contrary, no Eligible Employee may be granted a purchase right under the 423 Component of the Plan (i) to the extent that, immediately after the grant, such Eligible Employee (or any other person whose stock would be attributed to such Eligible
Employee pursuant to Section 424(d) of the Code) would own capital stock of the Company and/ or hold outstanding purchase rights to purchase capital stock possessing five percent (5%) or more of the total combined voting power or value of
all classes of the capital stock of the Company or of any Subsidiary, or (ii) to the extent that his or her rights to purchase capital stock under all employee stock purchase plans of the Company and its subsidiaries accrues at a rate that
exceeds Twenty-Five Thousand Dollars (US$25,000) worth of such stock (determined at the Fair Market Value of the shares of such stock at the time such purchase right is granted) for each calendar year in which such purchase right is both outstanding
and exercisable.
4 Offering Periods
The first Offering Period under the Plan will commence on March 1, 2013 and will end on August 31, 2013. Subsequently, the Plan shall be implemented by consecutive six-month Offering Periods
with a new Offering Period commencing on the first Trading Day on or after September 1, 2013. Within the limitations set forth in Section 2(s), the Committee shall have the power to change the duration of Offering Periods (including the
commencement dates thereof) with respect to future offerings without stockholder approval if such change is announced prior to the scheduled beginning of the first Offering Period to be affected thereafter.
- 4 -
5 Participation
An Eligible Employee may become a Participant in the Plan by completing, within any prescribed enrollment period prior to the applicable Offering Date, a Participation Election (electronic or otherwise)
and/or any other forms and following any procedures for enrollment in the Plan as may be established by the Administrator from time to time.
6 Payroll Deductions or Contributions
|
(a)
|
At the time a Participant completes any Participation Election, enrollment form and/or procedure to enroll in the Plan, as provided in Section 5, he or she
shall elect to have payroll deductions made on each pay day during the Offering Period in an amount not exceeding 10% of the Compensation that he or she receives on each pay day during the Offering Period,
provided
, that should a pay day
occur on a Purchase Date, a Participant shall have the payroll deductions made on such day applied to his or her account under the new Offering Period, unless otherwise provided by the Administrator and subject to withdrawal by the Participant as
provided in Section 10. The Administrator may permit Eligible Employees participating in a specified Offering to contribute amounts to the Plan through payment by cash, check or other means to comply with local legal requirements,
provided
, that such contributions shall not exceed 10% of the Compensation received each pay period, during the Offering Period. A Participant’s enrollment in the Plan shall remain in effect for successive Offering Periods unless
terminated as provided in Section 10.
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(b)
|
Payroll deductions or contributions, as applicable, for a Participant shall commence on the first pay day following the Offering Date and shall end on the last
pay day in the Offering Period to which such authorization is applicable (subject to subsection 6(a)), unless sooner terminated by the Participant as provided in Section 10.
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(c)
|
A Participant may discontinue his or her participation in the Plan as provided in Section 10 by completing any forms and following any procedures for
withdrawal from the Plan as may be established by the Administrator from time to time. Further, the Participant may increase or decrease payroll deductions or contributions by completing any form or following any procedure established by the
Administrator from time to time.
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(d)
|
At the time that Shares are purchased under the Plan, or at the time some or all of the Company’s Shares issued under the Plan are disposed of, the
Participant must make adequate provision for the Company’s or its Subsidiary’s or Affiliate’s federal, state, or any other tax liability payable to any authority, national insurance, social security, payment-onaccount or other tax
obligations, if any, which arise as a result of participation in the Plan, including, for the avoidance of doubt, any liability of the Participant to pay an employer tax or social insurance contribution obligation, which liability has been shifted
to the Participant as a matter of law or contract. At any time, the Company or its Subsidiary or Affiliate, as applicable, may, but shall not be obligated to, withhold from the Participant’s compensation the amount necessary for the Company or
its Subsidiary or Affiliate, as applicable, to meet applicable withholding obligations, including any withholding required to make available to the Company or its Subsidiary or Affiliate, as applicable, any tax deductions or benefits attributable to
sale or early disposition of Shares by the Eligible Employee. In addition, the Company or its Subsidiary or Affiliate, as applicable, (i) may withhold from the proceeds of the sale of Shares, (ii) may withhold a sufficient whole number of
Shares otherwise issuable following purchase having an aggregate fair market value sufficient to pay applicable withholding obligations, or (iii) may withhold by any other means set forth in the applicable Participation Election. Where
necessary to avoid negative accounting treatment, the Company or its Subsidiary or Affiliate shall withhold taxes at the applicable statutory minimum withholding rates.
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7 Grant of Purchase Right
On the Offering Date of each Offering Period, each Eligible
Employee participating in such Offering Period shall be granted a purchase right to purchase on each Purchase Date during such Offering Period (at the applicable Purchase Price) up to a number of Shares determined by dividing such Eligible
Employee’s payroll deductions or contributions accumulated prior to such Purchase Date by the applicable Purchase Price;
provided
,
however
, that in no event shall an Eligible Employee be permitted to purchase during each Offering
Period more than 100,000 Shares subject to adjustment pursuant to Section 15, and provided further that such purchase shall be subject to the limitations set forth in Sections 3 and 14. The Committee may, for future Offering Periods, increase
or decrease, in its absolute discretion, the maximum number of Shares that an Eligible Employee may purchase during each Offering Period. The purchase of Shares pursuant to the purchase right shall occur as provided in Section 8, unless the
Participant has withdrawn pursuant to Section 10. Each purchase right expires on the last day of the Offering Period.
- 5 -
8 Purchase of Shares
|
(a)
|
Unless a Participant withdraws from the Plan as provided in Section 10, on the Purchase Date, the maximum number of Shares, including fractional shares, as
may be purchased with the accumulated payroll deductions or contributions in the Participant’s account shall be purchased for such Participant at the applicable Purchase Price, subject to the limitations in Section 7 and Section 8(b).
Unless specifically prohibited by the Committee, fractional shares shall be purchased under the Plan. In the event that the Committee prohibits fractional shares under the Plan, any payroll deductions or contributions accumulated in a
Participant’s account which are not sufficient to purchase a full Share shall, at the discretion of the Committee, be returned to the Participant or be retained in the Participant’s account for the subsequent Offering Period, subject to
earlier withdrawal by the Participant as provided in Section 10. During a Participant’s lifetime, Shares may be purchased pursuant to the Participant’s purchase right only by the Participant.
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(b)
|
No Participant in the 423 Component of the Plan is permitted to purchase shares under all employee stock purchase plans of the Company and its subsidiaries at a
rate that exceeds $25,000 in Fair Market Value (determined at the time the purchase right is granted) for each calendar year in which any stock purchase right is both outstanding and exercisable.
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(c)
|
If the Company determines that, on a given Purchase Date, the number of Shares with respect to which purchase rights are to be exercised may exceed (i) the
number of Shares that were available for sale under the Plan on the Offering Date of the applicable Offering Period, or (ii) the number of Shares available for sale under the Plan on such Purchase Date, the Company shall make a pro-rata
allocation of the Shares available for purchase on such Purchase Date in as uniform a manner as shall be practicable to be equitable among all Participants exercising purchase rights on such Purchase Date. The Company may make a pro-rata allocation
of the Shares available on the Offering Date of any applicable Offering Period pursuant to the preceding sentence, notwithstanding any authorization of additional Shares for issuance under the Plan by the Company’s shareholders subsequent to
such Offering Date. In such event, any residual payroll deductions or contributions accumulated in a Participant’s account which are not used to purchase Shares shall be promptly refunded to the relevant Participant or beneficiary, as
applicable.
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9 Delivery
By enrolling in the Plan, each Participant shall be deemed to have authorized the establishment of a brokerage account on his or her behalf at a securities brokerage firm selected by the Company.
Alternatively, the Company may provide for Plan share accounts for each Participant to be established by the Company or by an outside entity selected by the Committee which is not a brokerage firm. As soon as reasonably practicable after each
Purchase Date on which a purchase of Shares occurs, the Company shall arrange for the delivery to each Participant of the Shares purchased upon exercise of his or her purchase right to the Participant’s brokerage or Plan share account in a form
determined by the Company. Notwithstanding any other provision of the Plan, unless otherwise determined by the Administrator or required by any applicable law, rule or regulation, the Company shall not deliver to any Participant certificates
evidencing Shares issued in connection with any purchase under the Plan, and instead such Shares shall be recorded in the books of the brokerage firm or, as applicable, the Company, its transfer agent, stock plan administrator or such other outside
entity which is not a brokerage firm.
- 6 -
10 Withdrawal
|
(a)
|
A Participant may decide not to purchase Shares on a given Purchase Date and opt to withdraw all, but not less than all, the payroll deductions or contributions
credited to his or her account and not yet used to purchase Shares under the Plan at any time by giving notice in a form or manner prescribed by the Administrator from time to time, except that no withdrawals shall be permitted for the fifteen
(15) day period immediately preceding each Purchase Date, or as may be specified by the Administrator in its discretion. All of the Participant’s payroll deductions or contributions credited to his or her account shall, at the discretion
of the Administrator, (i) be retained in Participant’s account and used to purchase Shares at the next Purchase Date, or (ii) be paid to such Participant as soon as reasonably practicable after receipt of notice of withdrawal and such
Participant’s purchase right for the Offering Period shall be terminated automatically, and no further payroll deductions or contributions for the purchase of Shares shall be made for such Offering Period. If a Participant withdraws from an
Offering Period, payroll deductions or contributions shall not resume at the beginning of the succeeding Offering Period unless he or she satisfactorily completes the process to re-enroll in the Plan as prescribed by the Administrator from time to
time.
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(b)
|
A Participant’s withdrawal from an Offering Period shall not have any effect upon his or her eligibility to participate in any similar plan that may
hereafter be adopted by the Company or in succeeding Offerings which commence after the termination of the Offering Period from which he or she has withdrawn.
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11 No Right to Employment
Participation in the Plan by a Participant shall not be
construed as giving a Participant the right to be retained as an employee of the Company, a Subsidiary, or an Affiliate, as applicable. Furthermore, the Company, a Subsidiary, or an Affiliate may dismiss a Participant from employment at any time,
free from any liability or any claim under the Plan.
12 Termination of Employment
Unless otherwise determined by the Administrator, upon a Participant’s ceasing to be an Eligible Employee, due to termination of employment for any
reason (other than death or Disability), he or she shall be deemed to have elected to withdraw from the Plan and the payroll deductions or contributions credited to such Participant’s account during the Offering Period but not yet used to
purchase Shares under the Plan shall be returned to such Participant and such Participant’s purchase right shall be terminated automatically. Unless otherwise determined by the Administrator, upon a Participant’s ceasing to be an Eligible
Employee, due to termination of employment on account of death or Disability, the Participant or, in the case of his or her death, the person or persons entitled thereto under Section 17 may elect to (i) purchase Shares on the next
applicable Purchase Date, as may be purchased with the accumulated payroll deductions or contributions in the Participant’s account in accordance with the terms of the Plan and Section 8 or, (ii) elect to withdraw from the Plan as
described in this Section 12.
13 Interest
No interest will accrue on the contributions of a Participant in the Plan, except as may be required by applicable law, as determined by the Administrator.
14 Shares Available for Purchase under the Plan
|
(a)
|
Basic Limitation
. Subject to adjustment pursuant to Section 15, the aggregate number of Shares authorized for sale under the Plan is twelve million five
hundred thousand (12,500,000) Shares. The limitation set forth in this section may be used to satisfy purchases of Shares under either the 423 Component or the Non-423 Component.
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- 7 -
|
(b)
|
Rights as an Unsecured Creditor
. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly-authorized transfer
agent of or broker selected by the Company), a Participant shall only have the rights of an unsecured creditor with respect to such Shares, and no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to
such Shares.
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(c)
|
Sources of Shares Deliverable at Purchase
. Any Shares issued after purchase may consist, in whole or in part, of authorized and unissued Shares or of treasury
Shares.
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15 Adjustments for Changes in Capitalization and Similar Events
|
(a)
|
Changes in Capitalization
. Subject to any required action by the shareholders of the Company, the maximum number of Shares that shall be made available for sale
under the Plan, the maximum number of Shares that each Participant may purchase during the Offering Period (pursuant to Section 7) or over a calendar year under the $25,000 limitation (pursuant to Section 8(b)) and the per Share price used
to determine the Purchase Price shall be proportionately adjusted for any increase or decrease in the number of issued Shares resulting from any nonreciprocal transaction between the Company and its shareholders, (such as a stock dividend, stock
split, spin-off, rights offering or recapitalization through a large, nonrecurring cash dividend), that affects the Shares (or other securities of the Company) or the price of Shares (or other securities) and causes a change in the per share value
of the Shares underlying outstanding purchase rights. Such adjustment shall be made by the Committee, whose determination in that respect shall be final, binding and conclusive. The Committee may not delegate its authority to make adjustments
pursuant to this paragraph. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of Shares subject to a purchase right.
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(b)
|
Dissolution or Liquidation
. In the event of the proposed dissolution or liquidation of the Company, the Offering Period then in progress shall be shortened by
setting a new Purchase Date (the ‘New Purchase Date’), and shall terminate immediately prior to the consummation of such proposed dissolution or liquidation, unless provided otherwise by the Company. The New Purchase Date shall be before
the date of the Company’s proposed dissolution or liquidation. The Company shall notify each Participant in writing, at least ten (10) U.S. business days prior to the New Purchase Date, that the Purchase Date for the Participant’s
purchase right has been changed to the New Purchase Date and that Shares shall be purchased automatically for the Participant on the New Purchase Date, unless prior to such date the Participant has withdrawn from the Offering Period as provided in
Section 10.
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(c)
|
Change in Control
. In the event of a Change in Control, each outstanding purchase right shall be assumed or an equivalent purchase right substituted by the
successor corporation or a Parent or Subsidiary of the successor corporation. In the event that the successor corporation refuses to assume or substitute for the purchase right, the Offering Period then in progress shall be shortened by setting a
New Purchase Date and shall end on the New Purchase Date. The New Purchase Date shall be before the date of the Company’s proposed merger or Change in Control. The Company shall notify each Participant in writing, at least ten (10) U.S.
business days prior to the New Purchase Date, that the Purchase Date for the Participant’s purchase right has been changed to the New Purchase Date and that Shares shall be purchased automatically for the Participant on the New Purchase Date,
unless prior to such date the Participant has withdrawn from the Offering Period as provided in Section 10.
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- 8 -
16 Administration
|
(a)
|
Authority of the Committee
. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the
Committee by the Plan, the Committee shall have sole and plenary authority to administer the Plan, including, without limitation, the authority to:
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(i)
|
construe, interpret, reconcile any inconsistency in, correct any default in and supply any omission in, and apply the terms of the Plan and any Participation Election
or other instrument or agreement relating to the Plan,
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|
(ii)
|
determine eligibility and adjudicate all disputed claims filed under the Plan, including whether Eligible Employees shall participate in the 423 Component or the
Non-423 Component and which entities shall be Designated Subsidiaries or Designated Affiliates,
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|
|
(iii)
|
determine the terms and conditions of any purchase right to purchase Shares under the Plan,
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|
(iv)
|
establish, amend, suspend or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan,
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|
(v)
|
amend an outstanding purchase right or grant a replacement purchase right for a purchase right previously granted under the Plan if, in the Committee’s discretion,
it determines that (A) the tax consequences of such purchase right to the Company or the Participant differ from those consequences that were expected to occur on the date the purchase right was granted, or (B) clarifications or
interpretations of, or changes to, tax law or regulations permit purchase rights to be granted that have more favorable tax consequences other than initially anticipated, and
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(vi)
|
make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan.
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Notwithstanding any provision to the contrary in this Plan, the Committee may adopt rules or procedures relating to the operation and
administration of the Plan to accommodate the specific requirements of local laws and procedures for the applicable jurisdictions. Without limiting the generality of the foregoing, the Committee specifically is authorized to adopt rules, procedures
and subplans, which, for purposes of the Non-423 Component, may be outside the scope of Section 423 of the Code, regarding, without limitation, eligibility to participate, the definition of Compensation, handling of payroll deductions, making
of contributions to the Plan (including, without limitation, in forms other than payroll deductions), establishment of bank or trust accounts to hold payroll deductions, payment of interest, conversion of local currency, obligations to pay payroll
tax, determination of beneficiary-designation requirements, withholding procedures and handling of Share issuances, which may vary according to local requirements. The Committee may assign any of its administrative tasks set forth in this paragraph
to the Administrator, including the designation of a Designated Affiliate or Designated Subsidiary under the Plan, unless constrained by applicable law. However, the Committee may not delegate its authority to make adjustments pursuant to
Section 15(a).
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(b)
|
Committee Decisions.
Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations and other decisions under or with respect
to the Plan or any right to purchase Shares granted under the Plan made by the Committee or its delegate, including, but not limited to decisions of the Administrator in fulfilling its duties under the Plan, shall be final, conclusive, and binding
upon all persons, including the Company, Designated Subsidiary, Designated Affiliate, Participant, Eligible Employee, or any beneficiary of such person, as applicable.
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(c)
|
Indemnification.
To the extent allowable pursuant to applicable law, each member of the Board, the Committee, the Administrator or any employee of the Company, a
Designated Subsidiary, or a Designated Affiliate (each such person, a “Covered Person”) shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by
such Covered Person in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action or failure to act pursuant to the Plan and against and
from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her;
provided
,
however
, that he or she has acted in accordance with his or her duties and responsibilities to
the Company under applicable law, and provided that he or she gives the Company an opportunity, at its own expense, to handle and defend any claim, action, suit, or proceeding to which he or she is a party before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such Covered Persons may be entitled pursuant to the Company’s Certificate of Incorporation or
Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
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- 9 -
17 Death
Unless otherwise provided in an enrollment form or procedures established by the Administrator from time to time, in the event of the Participant’s death, any accumulated payroll deductions and other
contributions not used to purchase Shares shall be paid to and any Shares credited to his or her brokerage or Plan share account shall be transferred to Participant’s heirs or estate as soon as reasonably practicable following the
Participant’s death.
18 Transferability
Payroll deductions, contributions credited to a Participant’s account and any rights with regard to the purchase of Shares pursuant to a purchase right or to receive Shares under the Plan may not be
assigned, alienated, pledged, attached, sold or otherwise disposed of in any way (other than by will, the laws of descent and distribution or as provided in Section 17) by the Participant. Any such attempt at assignment, transfer, pledge or
other disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds from an Offering Period in accordance with Section 10.
19 Use of Funds
All payroll deductions or contributions received or held by the Company
under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions or contributions except as may be required by applicable local law, as determined by the Administrator,
and if so required by the laws of a particular jurisdiction, shall apply to all Participants in the relevant Offering except to the extent otherwise permitted by U.S. Treasury Regulation Section 1.423-2(f). Until Shares are issued, Participants
shall only have the rights of an unsecured creditor, although Participants in specified Offerings may have additional rights where required under local law, as determined by the Administrator.
20 Amendment and Termination
|
(a)
|
Subject to any applicable law or government regulation and to the rules of the NASDAQ or any successor exchange or quotation system on which the Shares may be
listed or quoted, the Plan may be amended, modified, suspended or terminated by the Board without the approval of the shareholders of the Company. This termination authority may not be delegated. Except as provided in Section 15, no amendment
may make any change in any purchase right previously granted which adversely affects the rights of any Participant or any beneficiary (as applicable) without the consent of the affected Participant or beneficiary. To the extent necessary to comply
with Section 423 of the Code (or any successor rule or provision or any other applicable law, regulation or stock exchange rule), the Company shall obtain shareholder approval of any amendment in such a manner and to such a degree as required.
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(b)
|
Without shareholder approval and without regard to whether any Participant rights may be considered to have been “adversely affected”, the Committee or
its delegate, including the Administrator, in each case to the extent permitted under the terms of the Plan, applicable law, the By-laws of the Company and under the Committee charter, may change the Offering Periods, limit the frequency or number
of changes in the amount withheld during an Offering Period, establish the exchange rate applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in excess of the amount designated by a Participant to adjust
for delays or mistakes in the Company’s processing of properly completed Participant Elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of
Shares for each Participant properly correspond with amounts withheld from the Participant’s Compensation, and establish such other limitations or procedures as the Committee deems appropriate.
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- 10 -
21 Notices
All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form and manner specified by the
Administrator at the location, or by the person, designated by the Administrator for the receipt thereof.
22 Conditions Upon Issuance of
Shares
|
(a)
|
Shares shall not be issued with respect to a purchase right unless the purchase of Shares pursuant to such purchase right and the issuance and delivery of such
Shares comply with all applicable law. This may include, without limitation Dutch and U.S. and U.S. state and local rules and regulations promulgated under U.S. securities laws, and the requirements of any stock exchange upon which the Shares may
then be listed. Share issuance is subject to the approval of counsel for the Company with respect to such compliance. In the event that any payroll deductions or contributions cannot be used to purchase shares due to noncompliance with applicable
rules and regulations, such payroll deductions or contributions shall be promptly refunded to the relevant Participant or beneficiary, as applicable.
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(b)
|
As a condition to the purchase of Shares pursuant to a purchase right, the Company may require the person on whose behalf Shares are purchased to represent and
warrant at the time of any such purchase that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by
any of the applicable provisions of law described in subsection (a) above.
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23 Share Issuance
All Shares delivered under the Plan pursuant to the exercise of a purchase right to purchase Shares shall be subject to such stop-transfer orders and
other restrictions as the Company may deem advisable under the Plan or the rules, regulations, and other requirements of the U.S. Securities and Exchange Commission, NASDAQ or any other stock exchange or quotation system upon which such Shares or
other securities are then listed or reported and any applicable Dutch, U.S. Federal or state laws, and the Company may take whatever steps are necessary to effect such restrictions.
24 Term of Plan
The Plan shall terminate on the earlier of (i) the date the Plan is
terminated by the Board in accordance with Section 20 and (ii) the date on which all purchase rights are exercised in connection with a dissolution or liquidation pursuant to Section 15(b) or Change in Control pursuant to
Section 15(c). No further purchase rights shall be granted or Shares purchased, and no further payroll deductions or contributions shall be collected under the Plan following such termination.
25 Shareholder Approval
The Plan will
become effective upon approval by the Board. The Plan will not be presented for approval by the Company shareholders until the annual shareholder meeting expected to be held in May 2013. If the Company shareholders do not approve the Plan, any
amounts deducted from Participants will be refunded to the Participants and the Plan will terminate.
- 11 -
26 Code Section 409A; Tax Qualification
|
(a)
|
Purchase rights granted under the 423 Component are exempt from the application of Section 409A of the Code. Purchase rights granted under the Non-423
Component to U.S. taxpayers are intended to be exempt from the application of Section 409A under the short-term deferral exception and any ambiguities shall be construed and interpreted in accordance with such intent. Subject to
Section 26(b), purchase rights granted to U.S. taxpayers under the Non-423 Component are subject to such terms and conditions that will permit such purchase rights to satisfy the requirements of the short-term deferral exception available under
Section 409A of the Code, including the requirement that the Shares subject to a purchase right be delivered within the short-term deferral period. Subject to Section 26(b), in the case of a Participant who would otherwise be subject to
Section 409A of the Code, to the extent the Company determines that a purchase right or the exercise, payment, settlement or deferral is subject to Section 409A of the Code, the purchase right shall be granted, exercised, paid, settled or
deferred in a manner that will comply with Section 409A of the Code, including Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be
issued after the Effective Date. Anything in the foregoing to the contrary notwithstanding, the Company shall have no liability to a Participant or any other party if the purchase right that is intended to be exempt from, or compliant with
Section 409A of the Code is not so exempt or compliant or for any action taken by the Company with respect thereto.
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|
(b)
|
Although the Company may endeavor to (i) qualify a purchase right for favorable tax treatment under the laws of the U.S. or jurisdictions outside of the
U.S. or (ii) avoid adverse tax treatment (e.g., under Section 409A of the Code), the Company makes no representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax treatment,
notwithstanding anything to the contrary in this Plan, including Section 26(a). The Company is not constrained in its corporate activities by any potential negative tax impact on Participants under the Plan.
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27 Severability
If any particular
provision of this Plan is found to be invalid or otherwise unenforceable, such determination shall not affect the other provisions of the Plan, but the Plan shall be construed in all respects as if such invalid provision were omitted.
28 Governing Law and Jurisdiction
Except to the extent that provisions of this Plan are governed by applicable provisions of the Code or any other substantive provision of United States
federal law, this Plan shall be construed in accordance with the laws of the Netherlands, without giving effect to the conflict of laws principles thereof. The jurisdiction and venue for any disputes arising under, or any action brought to enforce
(or otherwise relating to) this Plan shall be exclusively in the courts of Amsterdam, Netherlands.
29 Headings
Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any
way material or relevant to the construction or interpretation of the Plan.
- 12 -
Exhibit 5.1
August 8, 2013
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
USA
Ladies and Gentlemen:
I am
Senior Vice President and Senior Corporate Counsel of NXP Semiconductors N.V. (the “Company”) and am writing this opinion in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the
Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the registration by the Company of an aggregate of 140,000 shares of common stock, par value EUR 0.20 per
share, of the Company (the “Shares”), which may be delivered pursuant to the NXP Semiconductors N.V. Employee Stock Purchase Plan (the “Plan”).
I have examined the Registration Statement, the Plan, the certificate of incorporation of the Company and the articles of association of the Company, which has been filed with the Commission as an exhibit
to the Registration Statement. I have also examined the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents and other instruments and have made such other investigations as I have
deemed relevant and necessary in connection with the opinions hereinafter set forth.
In rendering the opinion set forth
below, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as duplicates or
certified or conformed copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, and
subject to the qualifications, assumptions and limitations stated herein, I am of the opinion that upon delivery in accordance with the Plan, the Shares will be validly issued, fully paid and non-assessable.
I do not express any opinion herein concerning any law other than the laws of the Netherlands.
I hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement.
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Very truly yours,
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/s/ Jean Schreurs
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Dr. Jean Schreurs
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