UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 7)
NXP Semiconductors N.V.
(Name of Issuer)
COMMON STOCK
NOMINAL VALUE €.20 PER SHARE
(Title of Class of Securities)
N6596X109
(CUSIP Number)
HERMAN H. RASPÉ, ESQ.
PATTERSON BELKNAP WEBB & TYLER LLP
1133 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036-6710
(212) 336-2000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 17, 2012
(Date of Event which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-l(f) or 240.13d-l(g), check the following box. o
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* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
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The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP No. N6596X109
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1
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Names of Reporting Person: Philips Pension Trustees Limited
I.R.S. Identification No. of Above Person (Entities Only): N/A
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2
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) x
(b) x
(SEE ITEM 5)
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3
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SEC Use Only
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4
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Source of Funds (See Instructions)
N/A
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5
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Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e)
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¨
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6
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Citizenship or Place of Organization
England and Wales
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NUMBER OF
SHARES BENEFICIALLY OWNED BY
EACH
REPORTING
PERSON WITH
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7
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Sole Voting Power
0 (SEE ITEM 5)
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8
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Shared Voting Power
163,407,063 (SEE ITEM 5)
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9
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Sole Dispositive Power
0 (SEE ITEM 5)
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10
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Shared Dispositive Power
163,407,063 (SEE ITEM 5)
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
30,644,493 (SEE ITEM 5)
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
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x
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13
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Percent of Class Represented by Amount in Row (11)
12.41% (SEE ITEM 5)
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14
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Type of Reporting Person (See Instructions)
CO, EP
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Page 2
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CUSIP No. N6596X109
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1
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Names of Reporting Person: PPTL Investment LP
I.R.S. Identification No. of Above Person (Entities Only): N/A
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2
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) x
(b) x
(SEE ITEM 5)
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3
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SEC Use Only
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4
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Source of Funds (See Instructions)
N/A (SEE ITEM 3)
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5
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Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e)
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¨
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6
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Citizenship or Place of Organization
Scotland
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NUMBER OF
SHARES BENEFICIALLY OWNED BY
EACH
REPORTING
PERSON WITH
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7
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Sole Voting Power
30,644,493 (SEE ITEM 5)
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8
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Shared Voting Power
163,407,063 (SEE ITEM 5)
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9
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Sole Dispositive Power
30,644,493 (SEE ITEM 5)
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10
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Shared Dispositive Power
163,407,063 (SEE ITEM 5)
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
30,644,493 (SEE ITEM 5)
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
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x
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13
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Percent of Class Represented by Amount in Row (11)
12.41% (SEE ITEM 5)
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14
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Type of Reporting Person (See Instructions)
PN
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Page 3
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CUSIP No. N6596X109
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1
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Names of Reporting Person: PPTL Investment Limited
I.R.S. Identification No. of Above Person (Entities Only): N/A
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2
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) x
(b) x
(SEE ITEM 5)
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3
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SEC Use Only
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4
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Source of Funds (See Instructions)
N/A
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5
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Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e)
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¨
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6
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Citizenship or Place of Organization
Scotland
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NUMBER OF
SHARES BENEFICIALLY OWNED BY
EACH
REPORTING
PERSON WITH
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7
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Sole Voting Power
0 (SEE ITEM 5)
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8
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Shared Voting Power
163,407,063 (SEE ITEM 5)
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9
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Sole Dispositive Power
0 (SEE ITEM 5)
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10
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Shared Dispositive Power
163,407,063 (SEE ITEM 5)
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
30,644,493 (SEE ITEM 5)
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
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x
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13
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Percent of Class Represented by Amount in Row (11)
12.41% (SEE ITEM 5)
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14
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Type of Reporting Person (See Instructions)
CO
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Page 4
Statement on Schedule 13D/A
This Amendment No. 7, being filed by (i) Philips Pension Trustees Limited (“Philips Pension Trustees”), a private limited company organized under the laws of England and Wales, (ii) PPTL Investment LP, a limited partnership organized under the laws of Scotland (“PPTL LP”) and (iii) PPTL Investment Limited, a Scottish company limited by guarantee (“GP” and together with Philips Pension Trustees and PPTL LP, the “Reporting Persons”), amends the Schedule 13D initially filed on September 17, 2010 (“Original 13D”), as amended by Amendment No. 1 filed on November 2, 2010 (“First Amendment”), Amendment No. 2 filed on April 6, 2011 (“Second Amendment”), Amendment No. 3 filed on July 6, 2011 (“Third Amendment”) Amendment No. 4 filed on July 19, 2011 (“Fourth Amendment”), Amendment No. 5 filed on November 1, 2011 (“Fifth Amendment”) and Amendment No. 6 filed on November 8, 2011 (“Sixth Amendment,” and together with the First Amendment, Second Amendment, Third Amendment, Fourth Amendment and Fifth Amendment, the “Prior Amendments”) relating to the beneficial ownership of common stock, nominal value €.20 per share (“Common Stock”), of NXP Semiconductors N.V. (the “Issuer”), a public company with limited liability incorporated under the laws of The Netherlands. The principal executive office of the Issuer is located at High Tech Campus 60, 5656 AG Eindhoven, The Netherlands. Information reported in the Original 13D, as amended or superseded by information contained in the Prior Amendments remains in effect except to the extent that it is amended or superseded by information contained in this Amendment. Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in the Original 13D, as amended by the Prior Amendments.
Item 4. Purpose of Transaction
Item 4 of the Original 13D is hereby amended and supplemented by inserting the following paragraph before the final paragraph thereof:
On February 17, 2012 (the "Third Sales Plan Effective Date"), PPTL LP entered into a Sales Plan (the "Third Sales Plan") with JPMS as broker in order to enable the disposition of up to 4,940,316 shares of Common Stock pursuant to Rule 144 under the Securities Act of 1933 within the three-month period beginning on the Third Sales Plan Effective Date (the "Third Intended Disposition") and transmitted for filing with the Securities and Exchange Commission a Form 144 covering such Third Intended Disposition. The Third Sales Plan is attached as Exhibit 12 hereto and its terms are hereby incorporated by reference in this Item 4.
Item 5. Interest in Securities of the Issuer
Item 5 of the Original 13D is hereby amended and restated as follows:
(a) As a result of the sales of the shares of Common Stock described in (c) below, PPTL LP directly owns 30,644,493 shares of Common Stock representing approximately 12.41% of the outstanding Common Stock, based on 247,015,804 shares of Common Stock outstanding (as reported in the Form 6-K Report of Foreign Private Issuer, filed on November 10, 2011, File No. 001-34841).
GP does not directly own any shares of Common Stock but, as the general partner of PPTL LP, has the power to direct the voting and disposition of all of the 30,644,493 shares of Common Stock held by PPTL LP. Philips Pension Trustees is the sole member of GP (and may therefore elect GP’s board of directors) and is the sole limited partner of PPTL LP. As such, the Reporting Persons may be deemed to have formed a group within the meaning of Section 13 of the Securities Exchange Act of 1934, as amended, and each of GP and Philips Pension Trustees may be deemed to possess shared beneficial ownership of the 30,644,493 shares of Common Stock held by PPTL LP.
KPENV may appoint the majority of the board of directors of Philips Pension Trustees. In addition, the Amended Transfer Agreement limits the ability of PPTL LP as the holder of the Transfer Shares to dispose of the Transfer Shares without the consent of KPENV. Furthermore, the Shareholders’ Agreement grants KPENV the right to nominate one non-executive member of the Issuer’s board of directors and requires PPTL LP to vote the Transfer Shares in favor of such nominee.
By virtue of (A) the Shareholders’ Agreement, which contains (i) certain restrictions on the transfer of shares of Common Stock held by the parties thereto, (ii) certain agreements as to the voting of such shares, (iii) drag-along provisions requiring the sale of such shares in certain circumstances and (iv) tag-along provisions permitting the parties thereto to participate in the sale of Common Stock by another party, and (B) with respect to KPENV, the Amended Transfer Agreement, which contains the provisions described above, the Reporting Persons may be deemed to have formed a group, within the meaning of Section 13 of the Securities Exchange Act of 1934, as amended, and Rule 13d-5 promulgated thereunder, with KPENV and the other parties to the Shareholders’ Agreement, including the
Page 5
consortium of funds advised by Kohlberg Kravis Roberts & Co. L.P., Bain Capital Partners, LLC, Silver Lake Management Company, L.L.C., Apax Partners LLP and AlpInvest Partners N.V. and NXP Co-Investment Partners L.P. (collectively, the “Private Equity Consortium”). As a result, beneficial ownership of the 132,762,570 shares of Common Stock held directly or indirectly by the Private Equity Consortium (as reported in the aggregate in the relevant parties’ respective Schedules 13G/A filed on February 14, 2012), may be attributed to the Reporting Persons, which would result in the beneficial ownership by the Reporting Persons of 163,407,063 shares of Common Stock, representing approximately 66.15% of the outstanding Common Stock, based on 247,015,804 shares of Common Stock outstanding (as reported in the Form 6-K Report of Foreign Private Issuer, filed on November 10, 2011, File No. 001-34841). Notwithstanding the foregoing, the Reporting Persons disclaim membership in such group and disclaim beneficial ownership of all shares of Common Stock held directly or indirectly by the Private Equity Consortium.
The aggregate beneficial ownership that may be attributed to KPENV and the other parties to the Shareholders’ Agreement (each, an “Other Party” and collectively, the “Other Parties”) by virtue of any group that may be deemed to have been formed, as described above, is set forth in Schedule II attached hereto.
(b) The responses of the Reporting Persons to (i) Rows (7) through (10) of Schedule 13D and (ii) Item 5(a) hereof are incorporated herein by reference. By virtue of the rights and obligations of Philips Pension Trustees and PPTL LP under the Shareholders’ Agreement including those described in Item 5(a) hereof, the Reporting Persons may be deemed to share voting and dispositive power with respect to the 132,762,570 shares of Common Stock held directly or indirectly by the Private Equity Consortium but disclaim beneficial ownership of such shares. The number of shares of Common Stock as to which KPENV and each Other Party may be deemed to share voting or dispositive power, as well as the information required by Item 2 with respect to each such party, is set forth in Schedule II attached hereto.
(c) From the time of the filing of the Sixth Amendment through November 11, 2011, PPTL sold in Rule 144 transactions 1,088,507 shares of Common Stock through JPM, as broker, pursuant to the Second Sales Plan described in Item 4, at an average price of $16.5743 per share. Aside from these sales of Common Stock pursuant to the Second Sales Plan, the Reporting Persons have not effectuated any transactions in Common Stock since the filing of the Sixth Amendment. The Reporting Persons are not aware of any other transactions in Common Stock that were effected since the filing of the Sixth Amendment by KPENV or any Other Party.
(d) The Reporting Persons have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the 30,644,493 shares of Common Stock held directly by PPTL LP. Pursuant to the Amended Transfer Agreement, PPTL LP and/or Philips Pension Trustees may be required under certain circumstances to make an additional payment to KPENV in respect of the such Common Stock, as described in Item 3. The description of the Purchase Price Adjustment set forth in Item 3, the terms of the Amended Transfer Agreement (attached as Exhibit 1) and the terms of the Restated LP Agreement (attached as Exhibit 5) are incorporated herein by reference.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Item 6 of the Original 13D is hereby amended and supplemented by adding the following statement after the final paragraph thereof:
In connection with the Third Intended Disposition, PPTL LP entered into the Third Sales Plan with JPMS on February 17, 2012. The Third Sales Plan is attached as Exhibit 12 hereto and its terms are hereby incorporated by reference in this Item 6.
Page 6
Item 7. Material to be Filed as Exhibits
Item 7 of the Original 13D is hereby amended to add the following:
Exhibit 12: Sales Plan, dated February 17, 2012, between PPTL LP and JPMS.*
* Filed herewith
Page 7
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Dated: February 17, 2011
| PHILIPS PENSION TRUSTEES LIMITED | |||
| /s/ C. Petrie | |||
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Name:
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C. Petrie
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Title:
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Director
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| PPTL INVESTMENT LP | |||
| /s/ M. R. Armstrong | |||
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Name:
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M. R. Armstrong | ||
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Title:
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Director, PPTL Investment Limited as General Partner on behalf of PPTL Investment LP
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| PPTL INVESTMENT LIMITED | |||
| /s/ M. R. Armstrong | |||
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Name:
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M. R. Armstrong | ||
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Title:
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Director | ||
Page 8
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SCHEDULE II
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KPENV AND OTHER PARTIES TO SHAREHOLDERS’ AGREEMENT
This Schedule II sets forth the information required by Items 2 and 5(a) and (b) for each of the parties to the Shareholders’ Agreement other than Philips Pension Trustees and PPTL LP, to the extent such information is known by the Reporting Persons. Such information is derived from (i) representations made by the relevant parties in their respective Schedules 13G/A filed on February 14, 2012, (ii) information set forth in the Issuer’s Form 6-K Report of Foreign Private Issuer, filed on November 10, 2011, File No. 001-34841, (iii) information set forth in the Shareholders’ Agreement and (iv) with respect to KPENV, certain additional information provided by KPENV. While the Reporting Persons have no reason to believe that such information is not reliable, the Reporting Persons only accept responsibility for accurately reproducing such information and accept no further or other responsibility for such information.
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A.
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KPENV
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Item 2, Principal Business: Manufacture and distribution of electronic and electrical products
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Item 2, Principal Office Address: Breitner Center, Amstelplein 2, 1096 BC Amsterdam, The Netherlands
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Item 2, Place of Organization: The Netherlands
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Item 5(a), Shares of Common Stock Deemed to Beneficially Own: 163,407,063*
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Item 5(a), Percentage of Outstanding Common Stock: 66.15%*
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Item 5(b), Deemed Shared Voting Power: 163,407,063*
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Item 5(b), Deemed Shared Dispositive Power: 163,407,063*
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*On September 7, 2010, KPENV transferred the entirety of its holdings of Common Stock to Philips Pension Trustees (who subsequently transferred such holdings to PPTL LP) and no longer holds any Common Stock. Due to the governance arrangements among KPENV and the Reporting Persons (described in Item 5), and in light of certain provisions of the Shareholders’ Agreement and Amended Transfer Agreement (each as described in Item 6), KPENV may be deemed to beneficially own shares of Common Stock held by the Reporting Persons and the Other Parties.
B. OTHER PARTIES
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Item 2, Party Name:
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AlpInvest Partners CSI 2006 Lion C.V.
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AlpInvest Partners Later Stage II-A Lion C.V.
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Apax NXP VI 1 L.P.
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Apax NXP VI A L.P.
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Item 2, Principal Office Address:
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c/o AlpInvest Partners
Jachthavenweg 118
1081 KJ Amsterdam
The Netherlands
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c/o AlpInvest Partners
Jachthavenweg 118
1081 KJ Amsterdam
The Netherlands
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Unknown
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33 Jermyn Street
London, SW1Y 6DN
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Item 5(a), Shares of Common Stock Deemed to Beneficially Own:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(a), Percentage of Outstanding Common Stock:
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66.15%
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66.15%
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66.15%
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66.15%
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Item 5(b), Deemed Shared Voting Power:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(b), Deemed Shared Dispositive Power:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Page 9
SCHEDULE II (CONT.)
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Item 2, Party Name:
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Meridian Holding S.a.r.l.
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Apax NXP V A L.P.
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Apax NXP V B-2 L.P.
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Apax NXP US VII L.P.
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Item 2, Principal Office Address:
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41, Boulevard Prince Henri
L-1724, Luxembourg
B154.555
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Unknown
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Unknown
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Unknown
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Item 5(a), Shares of Common Stock Deemed to Beneficially Own:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(a), Percentage of Outstanding Common Stock:
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66.15%
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66.15%
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66.15%
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66.15%
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Item 5(b), Deemed Shared Voting Power:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(b), Deemed Shared Dispositive Power:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 2, Party Name:
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Bain Capital Lion Holdings, L.P.
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Bain Capital Fund IX L.P.
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Bain Pumbaa LuxCo S.a.r.l.
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NXP Co-Investment Partners L.P.
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Item 2, Principal Office Address:
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c/o Bain Capital Partners, LLC
John Hancock Tower, 200 Clarendon St.
Boston, MA
02116
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Unknown
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9A Parc d’Activité Syrdall
L-5365, Luxembourg
Grand Duchy of Luxembourg
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c/o Maples and Calder
P.O. Box 309 Ugland House
Grand Cayman
KY1-1104 Cayman Islands
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Item 5(a), Shares of Common Stock Deemed to Beneficially Own:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(a), Percentage of Outstanding Common Stock:
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66.15%
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66.15%
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66.15%
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66.15%
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Item 5(b), Deemed Shared Voting Power:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(b), Deemed Shared Dispositive Power:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Page 10
SCHEDULE II (CONT.)
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Item 2, Party Name:
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NXP Co-Investment Investor S.a.r.l.
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KKR NXP (Millenium) Limited
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KKR NXP (2006) Limited
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KKR NXP (European II) Limited
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Item 2, Principal Office Address:
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59, rue de Rollingergrund
L-2440 Luxembourg, Grand Duchy of
Luxembourg
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Unknown
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Unknown
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Unknown
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Item 5(a), Shares of Common Stock Deemed to Beneficially Own:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(a), Percentage of Outstanding Common Stock:
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66.15%
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66.15%
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66.15%
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66.15%
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Item 5(b), Deemed Shared Voting Power:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(b), Deemed Shared Dispositive Power:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 2, Party Name:
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KKR Associates Europe II Limited Partnership
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KKR NXP Investor S.a.r.l.
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SLTI II Cayman NXP, L.P.
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SLP II Cayman NXP, Ltd.
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Item 2, Principal Office Address:
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Unknown
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c/o Kohlberg Kravis Roberts & Co. L.P., 9 West 57th Street, Suite 4200, New York, NY 10019, U.S.A.
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Unknown
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c/o Silver Lake
P.O. Box 309, Ugland House
South Church Street, George Town
Grand Cayman KY1-1104
Cayman Islands
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Item 5(a), Shares of Common Stock Deemed to Beneficially Own:
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163,407,063
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163,407,063
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163,407,063
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163,407,063
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Item 5(a), Percentage of Outstanding Common Stock:
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66.15%
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66.15%
|
66.15%
|
66.15%
|
|
Item 5(b), Deemed Shared Voting Power:
|
163,407,063
|
163,407,063
|
163,407,063
|
163,407,063
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Item 5(b), Deemed Shared Dispositive Power:
|
163,407,063
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163,407,063
|
163,407,063
|
163,407,063
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Page 11
SCHEDULE II (CONT.)
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Item 2, Party Name:
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SL II NXP S.a.r.l.
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Stichting Management Co-Investment NXP
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Item 2, Principal Office Address:
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c/o Silver Lake
59 r. de Rollingergrund
2440 Luxembourg District
Luxembourg
|
Unknown
|
|
Item 5(a), Shares of Common Stock Deemed to Beneficially Own:
|
163,407,063
|
163,407,063
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Item 5(a), Percentage of Outstanding Common Stock:
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66.15%
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66.15%
|
|
Item 5(b), Deemed Shared Voting Power:
|
163,407,063
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163,407,063
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Item 5(b), Deemed Shared Dispositive Power:
|
163,407,063
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163,407,063
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C. ITEMS 2(D) & (E)
Item 2(d) & (e): During the last five years, none of the persons listed on this Schedule II, to the knowledge of the Reporting Persons, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Page 12
EXHIBIT INDEX
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Exhibit 12
|
Sales Plan, dated February 17, 2012, between PPTL Investment LP and J. P. Morgan Securities LLC.*
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*
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Filed herewith
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Page 12
J.P.Morgan
Sales Plan
Sales Plan, dated February 17, 2012 (the "Sales Plan"), between PPTL Investment LP ("Seller") and J. P. Morgan Securities LLC. ("JPMS").
WHEREAS, the Seller desires to establish this Sales Plan to sell shares of common stock (the "Stock") of NXP Semiconductors NV (the "Issuer"); and
WHEREAS, the Seller desires to engage JPMS to effect sales of shares of Stock in accordance with the Sales Plan;
NOW, THEREFORE, the Seller and JPMS hereby agree as follows:
1. (a) JPMS shall effect a sale (a "Sale") of up to 4,940,316 shares of Stock ("Total Plan Shares") as follows: pursuant to the specific instructions specified on schedule A.
(b) JPMS shall execute the trades in such a way as to minimize the negative price impact on the market and to maximize the prices obtained for the shares sold. JPMS may use its discretion in how to work the order to achieve the best execution above the minimum price per share, but at no time will Seller communicate to JPMS any instructions on how to execute the order.
2. (a) Seller has delivered the Stock to JPMS.
(b) To the extent that any Stock remains in Seller’s JPMS brokerage account upon termination of this Sales Plan, JPMS agrees to return such Stock promptly to the Issuer’s transfer agent for relegending to the extent that such Stock would then be subject to transfer restrictions in the hands of Seller.
3. This Sales Plan shall become effective immediately (the "Effective Date") and shall terminate on the earlier of the expiration of 3 months from the Effective Date; the date on which the Total Plan Shares have been sold; or the date this Sales Plan is terminated pursuant to Paragraph 17(b).
4. Seller understands that JPMS may not be able to effect a Sale due to a market disruption or a legal, regulatory or contractual restriction applicable to JPMS, an insufficient number of shares of Stock being in the account or a pending sale under this Sales Plan causing Seller to exceed the volume limitations of Rule 144 under the Securities Act of 1933 (the "Securities Act"). If any Sale cannot be executed as required by paragraph 1, due to a market disruption, a legal, regulatory or contractual restriction applicable to JPMS or any other event, JPMS shall effect such Sale as promptly as practicable after the cessation or termination of such market disruption, applicable restriction or other event.
5. Seller represents and warrants that: (a) it is not aware of material, nonpublic information with respect to the Issuer or any securities of the Issuer (including the Stock) and (b) it is entering into this Sales Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 1 0b5- 1 under the Securities Exchange Act of 1934 ("Exchange Act") or other applicable securities laws.
6. It is the intent of the parties that this Sales Plan comply with the requirements of Rule 10b5-1(c)(1)(i)(13) under the Exchange Act and this Sales Plan shall be interpreted to comply with the requirements of Rule 1 0b5- 1(c).
7. (a) JPMS agrees to conduct all Sales in accordance with the manner of sale requirement of Rule 144 under the Securities Act, and in no event shall JPMS effect any Sale if such Sale would exceed the then applicable volume limitation under Rule 144, assuming that JPMS Sales under this Sales Plan and those notified to JPMS pursuant to Paragraph 8 are the only sales subject to that limitation. JPMS will be responsible for completing and filing on behalf of the Seller the required Forms 144. Seller understands and agrees that JPMS shall make one Form 144 filing at the beginning of each three-month period commencing on the Effective Date.
(b) Each such Form 144 shall state in the "Remarks" section that the sales thereunder are being made pursuant to a previously adopted plan intended to comply with Rule 10b5-1(c), shall include the date Seller adopted this Sales Plan and shall indicate that the representation regarding Seller’s knowledge of material information speaks as of the adoption date of this Sales Plan.
8. Seller agrees not to take, and agrees to cause any person or entity with which it would be required to aggregate sales of Stock pursuant to paragraph (a)(2) or (e) of Rule 144 not to take, any action that would cause the Sales not to comply with Rule 144. In the event that Seller wishes to enter into another selling program, individual transactions under Rule 144 or any other transactions subject to the aggregation rules set out above, Seller will provide JPMS with written notice no less than five (5) business days prior to such a transaction or entering into an agreement for such and Seller will provide notice of any such transactions during the three months preceding the date hereof.
9. At the time of Seller’s execution of this Sales Plan, Seller has not entered into or altered a corresponding or hedging transaction with respect to the Stock. Seller agrees not to enter into any such transaction while this Sales Plan remains in effect.
10. Seller agrees to make all filings, if any, required under and monitor his own compliance with Sections 13(d) and 16 of the Exchange Act.
11. This Sales Plan shall be governed by and construed in accordance with the laws of the State of New York and may be modified or amended only by a writing signed by the parties hereto.
12. This Sales Plan shall be subject to all terms and conditions governing Seller’s IPMS brokerage account.
13.The Stock has been deposited into Seller’s JPMS brokerage account. JPMS will withdraw Stock from the account in order to effect sales of Stock under the Sales Plan. JPMS agrees to notify Seller promptly if at any time while this Sales Plan is in effect, the number of shares of Stock in the account is less than the total number of shares pending sale under the Sales Plan. Upon such notification, Seller agrees promptly to deposit into the account the number of shares of Stock necessary to eliminate this deficiency. Seller further agrees not to remove or transfer shares out of the account.
14. Seller represents and warrants that it currently is able to sell shares of Stock in accordance with the Issuer’s insider trading policies.
15. The Total Plan Shares, the shares to be sold on a particular day and the limit prices, if applicable, shall be adjusted automatically on a proportionate basis to take into account any stock split, reverse stock split or stock dividend with respect to the Stock or any change in capitalization with respect to the Issuer that occurs during the term of this Sales Plan.
16. JPMS will deduct its reasonable and customary commissions from the proceeds of sales of Stock under this Sales Plan, together with any of the expenses, incurred by JPMS in connection with such sales.
17. (a) Seller acknowledges and agrees that it does not have authority, influence or control over any sales of Stock effected by JPMS pursuant to this Sales Plan, and will not attempt to exercise any authority, influence or control over such sales (other than in the case of JPMS’s noncompliance with its obligations under this Sales Plan of which Seller becomes aware as a result of Seller’s receipt of account statements reflecting such non-compliant sales). JPMS agrees not to seek advice from Seller with respect to the manner in which it effects sales under this Sales Plan.
(b) Notwithstanding anything to the contrary herein, Seller may notify JPMS to terminate sales under this Sales Plan by providing notice substantially in the form of Appendix A hereto.
18. Except as provided in Paragraph 7, Seller acknowledges and agrees that JPMS has no duty to determine whether Seller has violated Rules 144 or 145 under the Securities Act, or Sections 13(d), 13(g) or 16 of the Exchange Act or the rules adopted by the SEC thereunder.
19. Seller will be notified of all transactions pursuant to customary trade confirmations.
20. Seller agrees to indemnify and hold harmless JPMS and its affiliates and their officers, directors, employees and representatives against any loss, claim, damage or liability, including legal fees and expenses, arising out of any action or proceeding relating to this Sales Plan or any Sale, except to the extent that any such loss, claim, damage or liability is determined in a non-appealable determination of a court of competent jurisdiction to be the result of the indemnified person’s gross negligence, willful misconduct, act of bad faith or breach of contract.
IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of the date first written above.
| PPTL Investment LP | |||
| By: PPTL Investment Limited, its General Partner | |||
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By:
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/s/ M.R. Armstrong | ||
| Name: M.R. Armstrong | [Date] | ||
| Title: Director | |||
| J.P.Morgan Securities LLC. | |||
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By:
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/s/ Temil Salih | ||
| Name: Temil Salih | [Date] | ||
| Title: Executive Director | |||
Appendix A
Request for Early Termination of Sales Plan
To: J. P. Morgan Securities LLC.
I, the Seller, represent and warrant that, as of [date], I am requesting termination of the Sales Plan dated ________ , 2012 in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 1 0b5- I or other applicable securities laws.
IN WITNESS WHEREOF, the undersigned have signed this Request for Early Termination of Plan as of the date specified below.
| PPTL Investment LP | |||
| By: PPTL Investment Limited, its General Partner | |||
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By:
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/s/ | ||
| Name: | [Date] | ||
| Title: | |||
| J.P.Morgan Securities LLC. | |||
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By:
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/s/ | ||
| Name: | [Date] | ||
| Title: | |||