EXHIBIT 1.1
EXECUTION COPY
SKYWORKS SOLUTIONS, INC.
("COMPANY")
COMMON STOCK
TERMS AGREEMENT
September 9, 2003
To:
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
The undersigned agrees to issue and sell to you ("you" or the
"UNDERWRITER"), on and subject to the terms and conditions of the Underwriting
Agreement filed as Exhibit 1.01 to the Company's registration statement on Form
S-3 (No. 333-107846) and attached as Exhibit 2 hereto (the "SHELF UNDERWRITING
AGREEMENT"), as amended and supplemented by this Terms Agreement (the
"UNDERWRITING AGREEMENT"), the following securities ("OFFERED SECURITIES") on
the following terms:
TITLE: Common Stock
NUMBER OF SHARES: 9,200,000
OVER-ALLOTMENT: In addition, upon written notice from the
Underwriter given to the Company from time to time not more than 30 days
subsequent to the date of this Terms Agreement, the Underwriter may purchase up
to 1,380,000 additional shares of the Offered Securities (the "OPTIONAL
SECURITIES") at the purchase price. The Company agrees to sell to the
Underwriter the Optional Securities, and the Underwriter agrees to purchase such
Optional Securities. Such Optional Securities may be purchased by the
Underwriter only for the purpose of covering over-allotments made in connection
with the sale of the Offered Securities. No Optional Securities shall be sold or
delivered unless the Offered Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by the Underwriter to the Company.
LISTING: The Nasdaq Stock Market Inc.'s National Market.
PURCHASE PRICE: $11.14 per share.
EXPECTED REOFFERING PRICE: $11.50 per share, subject to change
by the Underwriter.
CLOSING: 10 A.M. on September 12, 2003, at the offices of
Cravath, Swaine & Xxxxx LLP, New York, New York, in Federal (same day) funds. In
addition, there may be an Optional Closing Date, in order to exercise the
Over-Allotment option.
BLACKOUT: Until 60 days after the Closing Date.
NAME AND ADDRESS OF THE UNDERWRITER: Credit Suisse First
Boston LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000
The provisions of the Shelf Underwriting Agreement are
incorporated herein by reference, as supplemented by this Terms Agreement and as
amended for all purposes as follows:
1. Section 1 of the Shelf Underwriting Agreement is amended by
adding the word "time" between the words "to" and "certain" in the first
sentence thereof.
2. Section 2(a) of the Shelf Underwriting Agreement is amended by
deleting the parenthetical in the first sentence thereof and replacing it with
"(No. 333-107846)".
3. Section 5(c) of the Shelf Underwriting Agreement is amended by
deleting clauses (iv) through (vii) thereof and replacing them with the
following:
"(iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange; (v) any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (vi) any banking moratorium
declared by U.S. Federal or New York authorities; (vii) any major
disruption of settlements of securities or clearance services in the
United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including any Representatives, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered
Securities."
4. Section 6(a) of the Shelf Underwriting Agreement is amended by
adding the text "members," between "partners," and "directors" in the first
sentence thereof.
5. Section 8 of the Shelf Underwriting Agreement is amended by
deleting the text "clause (iii), (iv), (v), (vi) or (vii) of Section 5(c)" in
the last sentence thereof and replacing it with "clause (iii), (iv), (vi), (vii)
or (viii) of Section 5(c)".
The Shelf Underwriting Agreement is hereby further amended and
supplemented solely for purposes of this Terms Agreement as follows:
1. Section 2 of the Shelf Underwriting Agreement is hereby
amended by adding the following additional representations and warranties
following subsection (z) thereof:
"(aa) The Company has no direct or indirect subsidiary that is
a significant subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X, as promulgated by the Commission as of the date
hereof).
(bb) The schedule delivered by the Company to the Underwriter
as of the date hereof and identified by the Company as the schedule
delivered in connection with this clause (bb) sets forth (i) the
number of outstanding shares of Common Stock of the Company as of June
25, 2002, after giving effect to the merger of Washington Sub, Inc.
with and into Alpha Industries, Inc. and (ii) as of August 28, 2003, a
true, complete and correct list of all issuances by the Company of
Common Stock and any security convertible into or exchangeable or
exercisable for Common Stock since June 25, 2002."
2. Section 5 of the Shelf Underwriting Agreement is amended by
deleting subsection (a) thereof and replacing it with the following:
"(a) (i) On or prior to the date of the Terms Agreement, the
Underwriter shall have received a letter, dated the date of delivery
thereof, of KPMG LLP, in form and substance satisfactory to the
Underwriter, concerning the financial information with respect to the
Company set forth in the Prospectus, including any documents
incorporated by reference therein.
(ii) On or prior to the Closing Date, the Underwriter shall
have received a letter, dated the Closing Date, of Deloitte & Touche
LLP, in form and substance satisfactory to the Underwriter, concerning
the financial information with respect to the Company set forth in the
Prospectus, including any documents incorporated by reference
therein."
3. Section 5 of the Shelf Underwriting Agreement is further
amended by adding the following additional conditions precedent following
subsection (h) thereof:
"(i) On or prior to the date of the Terms Agreement, the
Underwriter shall have received lock-up letters in the form of Exhibit
1 to the Terms Agreement from each of the persons listed on Schedule A
hereto.
(j) The Company shall have filed with The Nasdaq Stock
Market's National Market a Notification Form for Listing of Additional
Shares with respect to the Offered Securities, and shall not have
received notification that such Notification Form has been rejected.
(k) The Underwriter shall have received a certificate of the
President or any Vice President and a principal financial or
accounting officer of the Company, dated the Closing Date, in which
such officers shall state that, to the best of their knowledge after
reasonable investigation, the attached schedule sets forth as of the
close of business on the date immediately preceding the Closing Date a
true, complete and correct list of all issuances by the Company of
Common Stock and any security convertible into or exchangeable or
exercisable for Common Stock since August 28, 2003, in form and
substance reasonably satisfactory to the Underwriter."
4. Section 6(c) of the Shelf Underwriting Agreement is amended by
deleting the first sentence thereof and replacing it with the following:
"Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have under subsection (a) or (b) above except to
the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and
provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an
indemnified party otherwise than under subsection (a) or (b) above."
5. Section 6(c) of the Shelf Underwriting Agreement is further
amended by deleting the last sentence thereof and replacing it with the
following:
"No indemnified party shall effect any settlement of any
pending or threatened action without the prior written consent of the
indemnifying party, which such consent shall not be unreasonably
withheld or delayed; provided that the indemnifying party shall be
deemed to have consented for purposes of this Section 6 to any
proposed settlement of which written notice has been delivered to it
in accordance with Section 9 of the Shelf Underwriting Agreement and
with respect to which it has not notified the indemnified party within
45 days after delivery of such notice of its election not to consent
to such proposed settlement."
The Offered Securities will be made available for checking and
packaging at the offices of Cravath, Swaine & Xxxxx LLP, New York, New York, at
least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the
only information furnished to the Company by the Underwriter for use in the
Prospectus consists of the following information in the Prospectus furnished on
behalf of the Underwriter: the concession and reallowance figures appearing in
the fourth paragraph under the caption "Underwriting" in the prospectus
supplement and the information contained in the eleventh paragraph under the
caption "Underwriting" in the prospectus supplement.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
Very truly yours,
SKYWORKS SOLUTIONS, INC.
By /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON LLC
By /s/ Amr A. El Xxxxx
---------------------------------
Name: Amr A. El Xxxxx
Title: Director
SCHEDULE A
PERSONS DELIVERING LOCK-UP AGREEMENTS:
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxxxxxxxxxx Xxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. XxXxx
Xxxxx X. XxXxxxxxx
Xxxx X. Xxxxxxx
EXHIBIT 1
September 8, 2003
Skyworks Solutions, Inc.
00 Xxxxxx Xxxx
Xxxxxx, XX 00000
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the
Underwriting Agreement, pursuant to which an offering will be made that is
intended to result in an orderly market for the common stock, par value $0.25
per share (the "SECURITIES"), of Skyworks Solutions, Inc., and any successor (by
merger or otherwise) thereto (the "COMPANY"), the undersigned hereby agrees that
from the date hereof and until 60 days after the public offering date set forth
on the final prospectus supplement used to sell the Securities (the "OFFERING
DATE") pursuant to the Underwriting Agreement, to which you are or expect to
become a party, the undersigned will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, any shares of the Securities or
securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or to enter into
any such transaction, swap, hedge or other arrangement, without, in each case,
the prior written consent of Credit Suisse First Boston LLC. In addition, the
undersigned agrees that, without the prior written consent of Credit Suisse
First Boston LLC, it will not, during the period commencing on the date hereof
and ending 60 days after the Offering Date, make any demand for or exercise any
right with respect to, the registration of any Securities or any security
convertible into or exercisable or exchangeable for the Securities.
Any Securities received upon exercise of options granted to
the undersigned will also be subject to this Agreement, provided that the
exercise of such options by the undersigned will not be subject to this
Agreement.. Any Securities acquired by the undersigned in the open market will
not be subject to this Agreement. A transfer of Securities to a family member or
trust may be made, provided the transferee agrees to be bound in writing by the
terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Offering Date shall not
have occurred on or before September 22, 2003.
Very truly yours,
-----------------------------------
Name:
EXHIBIT 2
UNDERWRITING AGREEMENT
