STOCKHOLDER PROPOSALS FOR THE 2019 ANNUAL MEETING
As of the date of this proxy statement, Qualcomm has not disclosed the dates prior to which notices of nominations for election to the Qualcomm
Board or stockholder proposals in respect of the 2019 annual meeting of stockholders of Qualcomm must be delivered to Qualcomm. We believe that, in determining these dates, the principles below will apply, based on the Bylaws and publicly available
information.
Under
Rule 14a-8
of the Exchange Act, in order for stockholder proposals to be
considered for inclusion in Qualcomms proxy statement for the 2019 annual meeting of stockholders, such proposals must be received by Qualcomm at its principal executive offices not less than 120 calendar days before the anniversary of the
date of Qualcomms proxy statement released to stockholders in connection with the Annual Meeting. If an annual meeting is not held in 2018 or the date of the 2019 annual meeting varies by more than 30 days from the date of the 2018 annual
meeting, Qualcomm will be required to establish a deadline a reasonable time prior to printing and mailing its proxy materials for the 2019 annual meeting. Such deadline for proposals to be brought under
Rule 14a-8
of the Exchange Act will be set forth in Qualcomms definitive proxy statement related to the Annual Meeting. Proposals should be addressed to: Qualcomms Corporate Secretary, 5775
Morehouse Drive,
N-520I,
San Diego, California 92121-1714. Proposals received after that date may be considered untimely and may not be eligible for inclusion in the 2019 proxy statement.
If a stockholder desires to bring a matter before Qualcomms annual meeting and the matter is submitted outside the process of the
Exchange Act
Rule 14a-8,
including with respect to nominations for election as directors, the stockholder must follow the procedures set forth in the Bylaws. The Bylaws provide generally that stockholder
proposals and director nominations to be considered at an annual meeting may be made by a stockholder only if (1) the stockholder is a stockholder of record and is entitled to vote at the meeting, and (2) the stockholder gives timely
written notice of the matter to Qualcomms Corporate Secretary.
To be timely, a stockholders notice must be delivered to
Qualcomms Corporate Secretary at the principal executive offices of Qualcomm, addressed to: Corporate Secretary, 5775 Morehouse Drive,
N-520I,
San Diego, California 92121-1714, not earlier than the 120th
day and not later than the close of business on the 90th day prior to the anniversary of the date of the 2018 annual meeting. However, if no annual meeting is held in 2018 or the date of the 2019 annual meeting changes by more than 30 calendar days
from the date of the 2018 annual meeting as first specified in Qualcomms notice of meeting (without regard to any postponements or adjournments of such meeting after such notice was first sent), notice by the stockholder to be timely must be
so received not earlier than the 120th day prior to the date of such annual meeting and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or, if the first public announcement of the date of
such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day following the day on which public announcement of the date of such annual meeting is first made by Qualcomm. The notice must set forth the information
required by the provisions of the Bylaws dealing with stockholder proposals and nominations of directors.
-33-
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement contains forward-looking statements (including within the meaning of Section 21E of the United States
Securities Exchange Act of 1934, as amended, and Section 27A of the United States Securities Act of 1933, as amended) concerning Broadcom. These statements include, but are not limited to, statements that address our expected future business
and financial performance and statements about (i) the proposed transaction involving Broadcom and Qualcomm and the expected benefits of the proposed transaction, (ii) the expected benefits of acquisitions, (iii) our plans, objectives
and intentions with respect to future operations and products, (iv) our competitive position and opportunities, (v) the impact of acquisitions on the market for our products, and (vi) other statements identified by words such as
will, expect, believe, anticipate, estimate, should, intend, plan, potential, predict, project, aim, and
similar words, phrases or expressions. These forward-looking statements are based on current expectations and beliefs of the management of Broadcom, as well as assumptions made by, and information currently available to, such management, current
market trends and market conditions and involve risks and uncertainties, many of which are outside Broadcoms and managements control, and which may cause actual results to differ materially from those contained in forward-looking
statements. Accordingly, you should not place undue reliance on such statements.
Particular uncertainties that could materially affect
future results include risks associated with our proposal to acquire Qualcomm, including: (i) uncertainty regarding the ultimate outcome or terms of any possible transaction between Broadcom and Qualcomm, including as to whether Qualcomm will
cooperate with us regarding the proposed transaction, (ii) the effects of the announcement of the proposed transaction on the ability of Broadcom and Qualcomm to retain customers, to retain and hire key personnel and to maintain favorable
relationships with suppliers or customers, (iii) the timing of the proposed transaction, (iv) the ability to obtain regulatory approvals and satisfy other closing conditions to the completion of the proposed transaction (including
shareholders approvals), and (v) other risks related to the completion of the proposed transaction and actions related thereto; loss of our significant customers and fluctuations in the timing and volume of significant customer demand; our
dependence on contract manufacturers and outsourced supply chain; our dependency on a limited number of suppliers; any acquisitions we may make, such as delays, challenges and expenses associated with receiving governmental and regulatory approvals
and satisfying other closing conditions, and with integrating acquired companies with our existing businesses and our ability to achieve the benefits, growth prospects and synergies expected from such acquisitions, including our acquisition of
Brocade; our ability to accurately estimate customers demand and adjust our manufacturing and supply chain accordingly; our significant indebtedness, including the need to generate sufficient cash flows to service and repay such debt;
increased dependence on a small number of markets and the rate of growth in these markets; dependence on and risks associated with distributors of our products; dependence on senior management; quarterly and annual fluctuations in operating results;
global economic conditions and concerns; our proposed redomiciliation of our ultimate parent company to the United States; our competitive performance and ability to continue achieving design wins with our customers, as well as the timing of those
design wins; prolonged disruptions of our or our contract manufacturers manufacturing facilities or other significant operations; our ability to improve our manufacturing efficiency and quality; our dependence on outsourced service providers
for certain key business services and their ability to execute to our requirements; our ability to maintain or improve gross margin; our effective tax rate, legislation that may impact our effective tax rate and our ability to maintain tax
concessions in certain jurisdictions; our ability to protect our intellectual property and the unpredictability of any associated litigation expenses; any expenses or reputational damage associated with resolving customer product and warranty and
indemnification claims; cyclicality in the semiconductor industry or in our target markets; our ability to sell to new types of customers and to keep pace with technological advances; market acceptance of the end products into which our products are
designed; and other events and trends on a national, regional and global scale, including those of a political, economic, business, competitive and regulatory nature.
-35-
ANNEX A
ADDITIONAL INFORMATION REGARDING
BROADCOM, THE BROADCOM NOMINEES AND OTHER PARTICIPANTS IN THE SOLICITATION
This
Annex A
sets forth certain information concerning Broadcom and each Broadcom Nominee and certain other persons identified in this
Annex A
(the Other Participants and, collectively with Broadcom and the Broadcom Nominees, the Participants), who are or may be participants in the solicitation of proxies from stockholders of Qualcomm by Broadcom in
connection with the Annual Meeting. Capitalized terms used but not otherwise defined in this
Annex A
have the meaning ascribed to them in the proxy statement to which this
Annex A
is attached. The terms associate,
affiliate and participant used in connection with the statements in this
Annex A
have the meaning ascribed to them in the Exchange Act. All references in this
Annex A
to Broadcom Nominees shall be deemed to
include the Alternate Nominees.
Other than as disclosed in this proxy statement, there is no
arrangement or understanding between any of the Broadcom Nominees and any other person(s) pursuant to which any such Broadcom Nominee was or is to be elected as a director of Qualcomm or nominee of Broadcom for election to the Qualcomm Board.
During the past ten years, none of the Broadcom Nominees has been convicted in a criminal proceeding (other than traffic violations or similar
misdemeanors).
The amount and class of securities of Qualcomm owned beneficially, directly or indirectly, by any of the Broadcom Nominees
is set forth below:
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Name
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Type of Security
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Ownership
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Michael S. Geltzeiler
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Common stock,
$0.0001 par value
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15 shares owned beneficially
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John H. Kispert
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Common stock,
$0.0001 par value
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60 shares owned beneficially
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Except as set forth in this proxy statement, none of the Broadcom Nominees, or any associate of any Broadcom
Nominee, owns beneficially, directly or indirectly, any securities of Qualcomm.
None of the Broadcom Nominees owns beneficially, directly
or indirectly, any securities of any parent or subsidiary of Qualcomm.
None of the Broadcom Nominees owns any securities of Qualcomm of
record but not beneficially.
Except as set forth in this proxy statement, none of the Broadcom Nominees has purchased or sold within the
past two years any securities of Qualcomm; provided that such securities may have been purchased or sold without his or her knowledge for accounts of such Broadcom Nominee managed by independent investment managers having control over the purchase
and sale decisions with respect thereto.
No part of the purchase price or market value of the securities purchased or sold by any of the
Broadcom Nominees in the last two years is represented by funds borrowed or otherwise obtained for the purpose of acquiring or holding such securities.
None of the Broadcom Nominees is, or was within the past year, a party to any contract, arrangement or understanding with any person with
respect to any securities of Qualcomm, including, but not limited to, joint ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits, or the giving or withholding of
proxies.
A-1
None of the Broadcom Nominees, or any of their respective associates or immediate family
members (as such term is described in Item 404(a) of Regulation
S-K
promulgated under the Securities Act of 1933, as amended (Regulation
S-K)),
has had since
the beginning of Qualcomms last fiscal year, a direct or indirect material interest in any transaction or currently proposed transaction, in which Qualcomm or any of its subsidiaries was or is to be a participant and the amount involved
exceeds $120,000 or would otherwise be required to be disclosed pursuant to Item 404(a) of Regulation
S-K.
Other than as described in this proxy statement, none of the Broadcom Nominees, or any associate of any of the Broadcom Nominees, has any
arrangement or understanding with any person with respect to any future employment by Qualcomm or its affiliates or with respect to any future transactions to which Qualcomm or any of its affiliates will or may be a party.
There are no material proceedings to which any Broadcom Nominee, or any associate of any such Broadcom Nominee, is a party adverse to Qualcomm
or any of its subsidiaries or has a material interest adverse to Qualcomm or any of its subsidiaries.
There are no family relationships
(as such term is defined in Item 401(d) of Regulation
S-K)
between any of the Broadcom Nominees or between any of the Broadcom Nominees and any director or executive officer of Qualcomm or any person nominated
or chosen by Qualcomm to become a director or executive officer.
None of the Broadcom Nominees has any position or office with Qualcomm
and no occupation or employment with which the Broadcom Nominees have been involved during the past five years was carried on with Qualcomm or any corporation or organization that is a parent, subsidiary or other affiliate of Qualcomm. None of the
Broadcom Nominees has ever served on the Qualcomm Board.
Except as set forth in this proxy statement, none of the Broadcom Nominees have
been involved in any legal proceedings during the past ten years that would be required to be disclosed under Item 401(f) of Regulation
S-K.
None of the Broadcom Nominees, or any associate of any Broadcom Nominee, has received any cash compensation, cash bonuses, deferred
compensation, compensation pursuant to plans or other compensation, from, or in respect of, services rendered on behalf of Qualcomm, or is subject to any arrangement described in Item 402 of Regulation
S-K.
B.
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PERSONS MAKING THE SOLICITATION AND OTHER PARTICIPANTS
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The solicitation for election of
the Broadcom Nominees and approval of the Bylaw Proposal will be made by Broadcom. For information regarding Broadcom, please see the section entitled Certain Information Regarding Broadcom of the proxy statement to which this
Annex
A
is attached. For information regarding the Broadcom Nominees, please see the section entitled Proposal: Election of the Broadcom Nominees of the proxy statement to which this
Annex A
is attached. Information regarding the
Other Participants is set forth below.
Under the applicable regulations of the SEC, directors, executive officers and certain other
employees of Broadcom may be deemed to be participants in the solicitation of proxies from stockholders of Qualcomm by Broadcom in connection with the Annual Meeting. The following tables set forth the name and current principal occupation or
employment of each director, executive officer and other employee of Broadcom who may be deemed a participant. Unless otherwise indicated, the current business address of each person is c/o Broadcom Limited, 1320 Ridder Park Drive, San Jose,
California 95131, and each occupation set forth opposite an individuals name refers to employment with Broadcom.
A-2
subsidiary of BC Luxembourg S.a.r.l., which is a subsidiary of Broadcom Cayman Finance Ltd, which is a subsidiary of Avago Technologies Cayman Holdings Ltd, which is a subsidiary of Broadcom
Cayman L.P., which is a subsidiary of Broadcom Limited, each of BC Luxembourg X.a.r.l., Broadcom Cayman Finance Ltd, Avago Technologies Cayman Holdings Ltd and Broadcom Cayman L.P. may also be deemed to be beneficial owners of the 916,271 shares of
Qualcomm common stock of which Broadcom Limited and Broadcom Corporation are beneficial owners. Broadcoms holdings represent less than 1% of the outstanding common stock of Qualcomm as of the date hereof.
The amount and class of securities of Qualcomm owned beneficially, directly or indirectly, by any of the Other Participants is set forth
below:
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Participant
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Type of Security
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Ownership
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Mark Brazeal
(1)
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Common stock,
$0.0001 par value
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76 shares owned beneficially
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Ken Hao
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Common stock,
$0.0001 par value
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662 shares owned beneficially
(2)
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(1)
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Mr. Brazeal and his spouse may be deemed to share beneficial ownership of these shares.
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(2)
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268 shares owned through Hao Family Trust u/a/d 10/22/99, 60 shares owned through Hao Family Capital, L.P. and 334 shares owned by Hao Family Foundation, which shares Mr. Hao may be deemed to beneficially own as a
result of his investment and voting power.
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Except as set forth in this proxy statement, (i) none of Broadcom, any of
the Other Participants or any of their respective associates, owns beneficially, directly or indirectly, any securities of Qualcomm; (ii) none of Broadcom or any of the Other Participants owns beneficially, directly or indirectly, any
securities of any parent or subsidiary of Qualcomm; and (iii) none of Broadcom or any of the Other Participants owns any securities of Qualcomm of record but not beneficially.
No part of the purchase price or market value of the securities purchased or sold by Broadcom or any of the Other Participants in the last two
years is represented by funds borrowed or otherwise obtained for the purpose of acquiring or holding such securities.
None of Broadcom or
any of the Other Participants is, or was within the past year, a party to any contract, arrangement or understanding with any person with respect to any securities of Qualcomm, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits, or the giving or withholding of proxies.
Other than as described in this proxy statement, none of Broadcom, any of the Other Participants or any of their respective associates or
immediate family members (as applicable, and as such term is described in Item 404(a) of Regulation
S-K),
has had since the beginning of Qualcomms last fiscal year, a direct or indirect material interest
in any transaction or currently proposed transaction, in which Qualcomm was or is to be a participant and the amount involved exceeds $120,000 or would otherwise be required to be disclosed pursuant to Item 404(a) of Regulation
S-K.
Broadcom believes that the Broadcom Nominees, if elected, will exercise their independent judgment
on all matters before the Qualcomm Board in accordance with their fiduciary duties to Qualcomm and the Qualcomm stockholders, will focus on the best value-enhancing strategy for Qualcomm stockholders and, in reviewing the proposed business
combination transaction, will act in the best interests of Qualcomm and the Qualcomm stockholders in accordance with their fiduciary duties as directors. To the extent the election of the Broadcom Nominees may have an impact on Broadcoms
proposal for a business combination with Qualcomm, Broadcom could be considered to have an interest in the matters to be acted upon at the Annual Meeting.
A-4
ANNEX C
FORM OF NOMINATION AGREEMENT
, 2017
Dear
:
This letter agreement will confirm our understanding as follows:
You agree that you are willing, should Broadcom Limited (the
Company
or
we
) so elect, to become a
member of a slate of nominees of the Company (the
Slate
) to stand for election as a director of Qualcomm Incorporated, a Delaware corporation (the
Target
), in connection with a proxy solicitation we are
considering in respect of the 2018 annual meeting of stockholders of the Target (including any adjournment or postponement thereof or any special meeting held in lieu thereof, the
Annual Meeting
) or appointment or election by
other means (the
Proxy Solicitation
). You further agree to serve as a director of the Target if so elected or appointed.
In connection with the foregoing agreements by you, the Company, irrespective of whether or not you are, in fact, elected or appointed as a
director of the Target, hereby agrees to pay you, subject to this letter agreement, a
one-time
fee of $100,000 in cash, payable in two installments as follows: (i) $60,000 upon execution of this letter
agreement, and (ii) $40,000 upon the Company or the Target publicly announcing that the Company has formally submitted your name to the Target as a nominee of the Company for the Annual Meeting (collectively, the
Fee
). If, prior
to the completion of the Proxy Solicitation (other than if the Company withdraws its proxy statement with respect to the Proxy Solicitation (the
Proxy Statement
) or otherwise determines not to proceed with the Proxy Solicitation
following the filing of the Proxy Statement with the U.S. Securities and Exchange Commission (the
SEC
), in which case you will be entitled to the entire Fee), you voluntarily withdraw from serving as a Company nominee or otherwise
refuse to serve as a director of the Target upon election or appointment thereto, you shall reimburse to the Company the full amount of the Fee, to the extent received prior to such date, and in such event you will no longer be eligible to receive
any further installments of the Fee.
In addition, the Company hereby agrees that for the period starting from the date of this letter
agreement and ending at the earlier of (i) your election as a director of the Target and (ii) the date you have been notified by the Company that it will not commence the Proxy Solicitation or has abandoned the Proxy Solicitation, or will
not include you in the Slate or that the requisite number of votes for your election as a director of the Target has not been obtained, the Company will promptly reimburse you for all reasonable and customary
out-of-pocket
expenses necessary to perform your responsibilities as a nominee, up to an aggregate maximum amount of $10,000, in addition to reasonable expenses for travel requested by us in connection with
the Proxy Solicitation.
You understand that it may be difficult, if not impossible, to replace a nominee who, such as yourself, has
agreed to serve on the Slate if such nominee later changes his or her mind and determines not to serve on the Slate and, if elected, to serve as a director of the Target. Accordingly, the Company is relying upon your agreement to stand for election
and serve on the Slate and, if elected, to serve as a director of the Target. In that connection, you are being supplied with a questionnaire (the
Questionnaire
) in which you will be asked to provide the Company with information
necessary for the Company to make appropriate disclosure to the Target and to use in creating the proxy materials to be sent to Target stockholders and to be filed with the SEC. You agree that (i) you will concurrently with your execution of
this letter agreement complete, sign and deliver to the Company the Questionnaire, (ii) your responses in the Questionnaire will be true, complete and correct in all respects and that you will promptly inform the Company if you become aware of
any changes that should be
C-1
made to your responses as a result of any subsequent development and (iii) you will provide any additional information as may be requested by the Company. In addition, you agree that,
concurrently with your execution of this letter agreement, you will execute and return to the Company the attached instrument, in the form attached hereto as Exhibit A, confirming your consent to being nominated by the Company for election as a
director of the Target and, if elected, to serve as a director of the Target. Upon being notified that we have chosen you as a member of the Slate, we may forward such consent and your completed Questionnaire (or summaries thereof) to the Target,
and we may at any time, in our discretion, disclose such information, as well as the existence and contents of this letter agreement. Furthermore, you understand that we may elect, at our expense, to conduct a background and reference check on you,
and you agree to complete and execute any necessary authorization forms or other documents required in connection therewith.
In
consideration of your agreement as set forth above and to the extent permitted by applicable law, the Company hereby agrees that, so long as you actually serve on the Slate, the Company will defend, indemnify and hold you harmless from and against
any and all losses, claims, damages, penalties, judgments, awards, settlements, liabilities, costs, expenses and disbursements (including, without limitation, reasonable attorneys fees, costs, expenses and disbursements) incurred by you in the
event that (a) you become a party, or are threatened to be made a party, to any civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal thereof relating to your role as a nominee for director of the Target on
the Slate (a
Proceeding
), (b) you are called to testify or give a deposition in any Proceeding (whether or not you are a party or are threatened to be made a party to such Proceeding), or (c) otherwise arising from or in
connection with or relating to the Proxy Solicitation, including, in each case, the advancement to you of all reasonable attorneys costs and expenses incurred by you in connection with any Proceeding. Your right of indemnification hereunder
shall continue (i) in the event that the Company determines to withdraw the Slate or remove you from the Slate and (ii) after the election has taken place but only for events that occur prior to such election and subsequent to the date
hereof. Notwithstanding anything in this letter agreement to the contrary, the Company is not indemnifying you for any action taken by you or on your behalf which occurs prior to the date hereof or subsequent to the Annual Meeting or such earlier
time as you are no longer a nominee of the Slate for election to the Targets Board of Directors or for any action taken by you as a director of the Target, if you are elected. Nothing herein shall be construed to provide you with
indemnification (I) in the event you are found to have engaged in a violation of any provision of federal, state or international law in connection with the Proxy Solicitation, (II) if you acted in bad faith or in a manner that constitutes
gross negligence or willful misconduct or (III) if you provided false or misleading information, or omitted material information, in the Questionnaire or otherwise in connection with the Proxy Solicitation.
Promptly after receipt by you of notice of any such claim, or threatened claim, or the commencement (or threatened commencement) of any
Proceeding in respect of which indemnification may be sought as provided above, you must promptly notify the Company, in writing by personal delivery, email transmission or overnight mail of the receipt of any such notice or commencement of any such
Proceeding. Any such notice should be sent to the following address: Broadcom Corporation, 1320 Ridder Park Drive, San Jose, California 95131; Attention: Chief Legal Officer, email: mark.brazeal@broadcom.com; provided, that the failure to so notify
the Company shall not limit your rights to indemnification hereunder, except to the extent that the Company is actually prejudiced thereby. With respect to any such claim or Proceeding, the Company shall be entitled to participate therein and, to
the extent the Company so determines, to assume and control your defense with counsel chosen by the Company; provided, however, that if the defendants in any such action include both you and the Company and if you have been advised by counsel that
there may be one or more legal defenses available to you that are different from or additional to those available to the Company (a
Conflict Situation
), you will have the right to elect up to one (1) separate counsel
reasonably satisfactory to the Company to participate in the defense of such action on your behalf. Notwithstanding, but in furtherance of, the foregoing, in the event of a Conflict Situation, you and other persons who are (or were) Company nominees
for directors of the Target involved in said matter shall share such one (1) counsel (unless you have been advised by counsel that there may be one or more legal defenses available to you that are different from or additional to those available
to any of such other persons). The Company shall not be responsible for any settlement of any claim or Proceeding against you covered by this
C-2
indemnity without the Companys prior written consent. The Company shall have the right to settle any such claim or Proceeding without your consent; provided that the Company may not enter
into any settlement of any such claim or Proceeding without your consent, unless such settlement includes (i) no admission of liability or guilt by you and (ii) a release of you from any and all liability in respect of such claim.
Each of us recognizes that should you be elected to the Board of Directors of the Target, all of your activities and decisions as a director
will be governed by applicable law and subject to your fiduciary duty to the Target and to the stockholders of the Target and, as a result, that there is and can be, no agreement between you and the Company that governs the decisions that you will
make as a director of the Target. You agree that, if elected, you will exercise your independent judgment in all matters before the Target Board of Directors in accordance with your fiduciary duties.
Notwithstanding anything in this letter agreement to the contrary, the Company is not obligated to nominate you as a director of the Target.
Unless terminated earlier, this letter agreement shall expire at the earlier of (i) your election as a director of the Target and (ii) the date you have been notified by the Company that it will not commence the Proxy Solicitation or has
abandoned the Proxy Solicitation, or will not include you in the Slate or that the requisite number of votes for your election as a director of the Target has not been obtained.
This letter agreement sets forth the entire agreement between the Company and you as to the subject matter contained herein, and cannot be
amended, modified or terminated, except by a writing executed by the Company and you. This letter agreement shall be governed by the laws of the State of New York, without giving effect to principles of conflicts of law. Each party hereby
irrevocably and unconditionally submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York or any New York State court located in the Borough of Manhattan in the State of New York for any action,
suit or proceeding arising out of or relating to this letter agreement, and each party hereby irrevocably and unconditionally agrees not to commence any such action, suit or proceeding except, in such courts, and waives any objection to the laying
of venue of any such action, suit or proceeding in any such court.
[
Signature page follows
]
C-3
ANNEX D
FORM OF
NON-DISCLOSURE
AGREEMENT
This agreement (Agreement) is between
, an individual residing at
(Recipient), and a company (the Company) set forth on the signature page hereto, and shall become
effective as of , 2017.
WHEREAS, the Recipient is being considered as a possible nominee of the Company to serve on the Board of Directors (the Board) of
a company listed on a U.S. securities exchange to be identified to you following an initial screening process (Target);
WHEREAS, in order to facilitate discussions regarding the consideration of Recipient for nomination to Targets Board, the Recipient may
receive certain confidential, proprietary and/or
non-public
information pertaining to the Company (including information about the Target provided by or on behalf of the Company) and a potential proxy contest,
exchange offer, or other transaction between the Company and Target (Potential Transaction), which the Company desires to protect against unauthorized disclosure; and
NOW THEREFORE, in consideration of the covenants herein contained, the parties agree as follows:
1. As used herein, Proprietary Information means any information regarding the Companys plans (including with respect to the
Target), prospects, businesses, financial condition, operations, assets and liabilities and any notes, records or other documents and materials that contain, reflect, are based on or are generated from any such information, including any information
about the Target that has been or may be provided or made available to Recipient by the Company or any of its directors, officers, employees, agents, advisors or other representatives (Representatives) orally, in writing, electronically
or otherwise. Proprietary Information shall also include the identity of the Company and the Target and any information regarding a Potential Transaction (including, without limitation, that you are being considered for, or may become, a
nominee of the Company, the existence or terms of this Agreement or any other arrangements or discussions between you and the Company or its Representatives, and the status of any such Potential Transaction) that has been or may be provided or made
available to Recipient by the Company or any of its Representatives orally, in writing, electronically or otherwise. However, Proprietary Information shall not include any information that becomes generally available to the public other
than as a result of any breach of Recipients obligations under this Agreement.
2. Recipient will not disclose any Proprietary
Information in any manner whatsoever, without the prior written approval of or waiver by the Company.
3. The obligations imposed by this
Agreement will not apply with respect to any Proprietary Information required to be disclosed by Recipient pursuant to an order of a court of competent jurisdiction or if otherwise required to be disclosed by applicable law so long as the Recipient
promptly notifies the Company of such order to allow the Company to contest such disclosure. For the avoidance of doubt, should Recipient be elected to the Board, nothing herein shall prohibit Recipient from complying with its fiduciary duties to
the Target and its stockholders.
4. Recipient acknowledges that it is aware that applicable United States securities laws prohibit any
person who has material nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person
is likely to purchase or sell such securities.
5. Recipient agrees that the Company shall be entitled to equitable relief, including
injunctive relief and specific performance, in the event of any breach of the provisions of this Agreement.
D-1
Internet and telephone voting is available through 11:59 p.m., Eastern Time, on [ ].
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QUALCOMM INCORPORATED
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BLUE PROXY CARD
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BROADCOM RECOMMENDS THAT YOU VOTE FOR ALL OF THE BROADCOM NOMINEES SET FORTH IN PROPOSAL 1:
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Proposal 1:
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Broadcoms Proposal to Elect Directors.
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Nominees:
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(1) Samih Elhage
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(3) Michael S. Geltzeiler
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(5) David G. Golden
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(7) Julie A. Hill
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(9) Gregorio Reyes
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(11) Harry L. You
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(2) Raul J. Fernandez
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(4) Stephen J. Girsky
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(6) Veronica M. Hagen
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(8) John H. Kispert
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(10) Thomas S. Volpe
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FOR ALL
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WITHHOLD ALL
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FOR ALL EXCEPT THE BROADCOM NOMINEE(S) WRITTEN BELOW
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NOTE: To withhold authority to vote for any individual nominee(s), mark the For All Except box and write in the name of
nominee(s) on the line below.
In the event that (1) Qualcomm purports to increase the number of directorships; (2) Qualcomm makes or announces any changes to the Amended and
Restated Bylaws (the Bylaws) or takes or announces any other action that purports to have, or if consummated would purport to have, the effect of disqualifying any of the Broadcom Nominees and/or (3) any of the Broadcom Nominees is
unable or becomes unwilling for any reason to serve as a director of Qualcomm, Broadcom will use this proxy to vote for one or more of Marc E. Jones, Jonathan R. Macey, Patrice E. Merrin, or Lloyd G. Trotter, in Broadcoms discretion, in
addition to the Broadcom Nominees or in place of such Broadcom Nominee, as applicable.
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BROADCOM RECOMMENDS THAT YOU VOTE FOR PROPOSAL 2:
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Proposal 2. To approve Broadcoms proposal to amend Qualcomms Bylaws to undo any amendment to the Bylaws adopted without stockholder approval up to and including the date of the Annual Meeting that changes the Bylaws
in any way from the version that was publicly filed with the Securities and Exchange Commission on July 15, 2016.
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FOR
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AGAINST
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ABSTAIN
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Date
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Signature (Capacity)
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Signature (If jointly held)
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PLEASE SIGN, DATE AND RETURN THIS PROXY PROMPTLY USING THE ENCLOSED
ENVELOPE.
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Please sign exactly as your name(s) is (are) shown on the share
certificate to which the proxy applies. When shares are held by joint tenants, both should sign. When signing as an attorney, executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign in full
corporate name by President or other authorized officer. If a partnership, please sign in partnership name by authorized person.
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PRELIMINARY COPYSUBJECT TO COMPLETION
YOUR VOTE IS IMPORTANT!
SIGN, DATE AND MAIL YOUR BLUE PROXY TODAY, UNLESS
YOU HAVE VOTED BY INTERNET OR TELEPHONE.
IF YOU HAVE NOT VOTED BY INTERNET OR TELEPHONE, PLEASE DATE, MARK, SIGN AND RETURN THIS BLUE PROXY PROMPTLY. YOUR VOTE MUST BE RECEIVED NO
LATER THAN THE DATE OF THE ANNUAL MEETING, TO BE INCLUDED IN THE VOTING RESULTS.
The proxy statement, as well as other proxy
materials distributed by the participants, are available
free of charge online at www.avgo-qcom.com.
(CONTINUED AND TO BE SIGNED AND DATED ON THE REVERSE SIDE)
If submitting a proxy by mail, please sign and date the card below and fold and detach card at perforation before mailing.
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QUALCOMM INCORPORATED
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BLUE PROXY CARD
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ANNUAL MEETING OF STOCKHOLDERS
MARCH 6, 2018
THIS
PROXY IS SOLICITED ON BEHALF OF BROADCOM LIMITED AND BROADCOM CORPORATION (COLLECTIVELY BROADCOM) AND NOT ON BEHALF OF THE BOARD OF DIRECTORS OF QUALCOMM INCORPORATED
The undersigned hereby appoints [ ] and [ ], and each of them, with full power of substitution, as proxies
for the undersigned and authorizes them to represent and vote, as designated, all of the shares of common stock of Qualcomm Incorporated, a Delaware corporation (Qualcomm), that the undersigned would be entitled to vote if personally
present at the 2018 Annual Meeting of Stockholders of Qualcomm, including any adjournments or postponements thereof or any special meeting that may be called in lieu thereof (the Annual Meeting).
If this proxy is signed and returned, it will be voted in accordance with your instructions. If you do not specify how the proxy should be voted, this
proxy will be voted, on Proposal 1, FOR the election of Samih Elhage, Raul J. Fernandez, Michael S. Geltzeiler, Stephen J. Girsky, David G. Golden, Veronica M. Hagen, Julie A. Hill, John H. Kispert, Gregorio Reyes, Thomas S. Volpe and
Harry L. You (except your proxy will not be voted for the election of any candidate(s) whose name(s) is written on the line provided under Proposal 1), on Proposal 2, FOR, and as otherwise set forth in this proxy. The proxies will also
vote on such other matters as may properly come before the Annual Meeting as Broadcom may recommend or otherwise in the proxies discretion.
This proxy revokes all prior proxies given by the undersigned with respect to the matters covered hereby.
CONTINUED, AND TO BE SIGNED AND DATED ON THE REVERSE SIDE.
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