Exhibit 5.2
SKADDEN, ARPS, SLATE, MEAGHER & FLOMLLP ONE MANHATTAN WEST NEW YORK, NY 10001
TEL: (212) 735-3000 FAX: (212) 735-2000 www.skadden.com
March 21, 2022
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FIRM/AFFILIATE OFFICES ----------- BOSTON CHICAGO HOUSTON LOS ANGELES PALO ALTO WASHINGTON, D.C. WILMINGTON ----------- BEIJING BRUSSELS FRANKFURT HONG KONG LONDON MOSCOW MUNICH PARIS SÃO PAULO SEOUL SHANGHAI SINGAPORE TOKYO TORONTO |
NXP Semiconductors N.V.,
60 High Tech Campus
5656AG Eindhoven
Netherlands
Ladies and Gentlemen:
| Re: | NXP Semiconductors N.V. |
| Registration | Statement on Form S-4 |
We have acted as special United States counsel to NXP Semiconductors N.V., a public company with limited liability organized under the laws of The Netherlands (the “Parent”), in connection with the public offering by NXP B.V., a private company with limited liability organized under the laws of The Netherlands (the “Company”) and NXP Funding LLC, a Delaware limited liability company (“NXP Funding” and together with the Company, the “Issuers”), of (i) up to $1,000,000,000 aggregate principal amount of the Issuers’ 4.875% Senior Notes due 2024 (the “New 2024 Notes”) to be issued under the Indenture, dated as of December 6, 2018 (the “Indenture”), among the Issuers, each of the guarantors named therein, including the Parent, and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), (ii) up to $500,000,000 aggregate principal amount of the Issuers’ 5.350% Senior Notes due 2026 (the “New 2026 Notes”) to be issued under the Indenture, (iii) up to $500,000,000 aggregate principal amount of the Issuers’ 5.550% Senior Notes due 2028 (the “New 2028 Notes” and together with the New 2024 Notes and the New 2026 Notes, the “New Notes”) to be issued under the Indenture.
The New Notes are to be issued pursuant to offers (the “Exchange Offers”) to exchange an aggregate principal amount of up to (i) $1,000,000,000 of the New 2024 Notes, which have been registered under the Securities Act of 1933 (the “Securities Act”), for a like principal amount of the Issuers’ issued and outstanding 4.875% Senior Notes due 2024 (the “Old 2024 Notes”) as contemplated by a Registration Rights Agreement, dated as of December 6, 2018 (the “Registration Rights Agreement”), among the Issuers, the Parent, NXP Semiconductors Netherlands B.V. and NXP USA, Inc. as guarantors and Barclays
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March 21, 2022
Capital Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers of the Old Notes, (ii) $500,000,000 of the New 2026 Notes, which have been registered under the Securities Act, for a like principal amount of the Issuers’ issued and outstanding 5.350% Senior Notes due 2026 (the “Old 2026 Notes”) as contemplated by the Registration Rights Agreement, and (iii) $500,000,000 of the New 2028 Notes, which have been registered under the Securities Act, for a like principal amount of the Company’s issued and outstanding 5.550% Senior Notes due 2028 (the “Old 2028 Notes” and together with the Old 2024 Notes and the Old 2026 Notes, the “Old Notes”) as contemplated by the Registration Rights Agreement.
As of the date hereof, the Parent and NXP USA, Inc., a Delaware corporation (the “Covered Guarantor” and together with the Parent, the “Guarantors” and each a “Guarantor”) guarantee the Old Notes and will guarantee the New Notes immediately following the Exchange Offers and any Old Notes that remain outstanding following the Exchange Offers.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions stated herein, we have examined and relied upon the following:
| (a) | the registration statement on Form S-4 of the Issuers and the Guarantors relating to the New Notes filed on the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act (such registration statement being hereinafter referred to as the “Registration Statement”); |
| (b) | an executed copy of the Registration Rights Agreement; |
| (c) | an executed copy of the Indenture, including Article 10 thereof containing the guaranty obligations of the Guarantors (the “Guarantees”); |
| (d) | the forms of global certificates included in the Indenture (the “New Notes Certificates”) evidencing the New Notes to be registered in the name of Cede & Co.; |
| (e) | an executed copy of a certificate of Luc de Dobbeleer, Authorized Officer of NXP Funding, dated the date hereof (“NXP Funding’s Secretary’s Certificate”); |
| (f) | a copy of NXP Funding’s Certificate of Formation, certified by the Secretary of State of the State of Delaware as of March 21, 2022, and certified pursuant to NXP Funding’s Secretary’s Certificate; |
| (g) | a copy of NXP Funding’s Limited Liability Company Agreement (the “LLC Agreement”), dated as of September 22, 2006, by the Company (formerly known as Philips Semiconductors International B.V.), as sole member of NXP Funding, certified pursuant to NXP Funding’s Secretary’s Certificate; |
| (h) | an executed copy of a certificate of Timothy Shelhamer, Authorized Officer of the Covered Guarantor, dated the date hereof (“NXP USA’s Secretary’s Certificate” and together with NXP Funding’s Secretary’s Certificate, the “Secretary’s Certificates”); |
| (i) | a copy of the Covered Guarantor’s Certificate of Incorporation, certified by the Secretary of State of the State of Delaware as of March 21, 2022, and certified pursuant to NXP USA’s Secretary’s Certificate; |
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| (j) | a copy of the Covered Guarantor’s By-laws, as amended and in effect as of the date hereof, certified pursuant to NXP USA’s Secretary’s Certificate; |
| (k) | a copy of the written consent of the sole member of NXP Funding, adopted on December 5, 2018, certified pursuant to NXP Funding’s Secretary’s Certificate; and |
| (l) | a copy of certain resolutions of the Board of Directors of the Covered Guarantor, adopted on December 5, 2018, certified pursuant to NXP USA’s Secretary’s Certificate. |
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Issuers and the Guarantors and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Issuers, the Guarantors and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Issuers and the Guarantors and others and of public officials, including those in the Secretary’s Certificates and the factual representations and warranties contained in the Transaction Documents (as defined below).
We do not express any opinion with respect to the laws of any jurisdiction other than (i) the laws of the State of New York, (ii) the Delaware Limited Liability Company Act (the “DLLCA”), and (iii) the General Corporation Law of the State of Delaware (all of the foregoing being referred to as “Opined on Law”).
As used herein, “Opinion Parties” means each of the Issuers and each of the Guarantors, and (ii) “Transaction Documents” means the Indenture and the New Notes Certificates.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:
1. The New Notes Certificates have been duly authorized by all requisite limited liability company action on the part of NXP Funding under the DCLLA and when duly executed by the Issuers and duly authenticated by the Trustee and issued and delivered by the Issuers upon consummation of the Exchange Offers against receipt of the Old Notes to be surrendered in exchange therefor in accordance with the terms of the Indenture, the Registration Rights Agreement and the Exchange Offers, the New Notes Certificates will constitute valid and binding obligations of the Issuers, enforceable against the Issuers in accordance with their terms under the laws of the State of New York.
2. The Guarantee of the Covered Guarantor has been duly authorized by all requisite corporate action on the part of the Covered Guarantor under the DGCL and when the New Notes Certificates are issued and delivered by the Issuers upon consummation of the Exchange Offers against receipt of the Old Notes to be surrendered in exchange therefor in accordance with the terms of the Indenture, the Registration Rights Agreement and the Exchange Offers, each Guarantee will constitute the valid and binding obligation of the applicable Guarantor, enforceable against such Guarantor in accordance with its terms under the laws of the State of New York,
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The opinions stated herein are subject to the following qualifications:
| (a) | we do not express any opinion with respect to the effect on the opinions stated herein of any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws or governmental orders affecting creditors’ rights generally, and the opinions stated herein are limited by such laws and orders and by general principles of equity (regardless of whether enforcement is sought in equity or at law); |
| (b) | we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Documents or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates; |
| (c) | except to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Documents constitutes the valid and binding obligation of each party to such Transaction Document, enforceable against such party in accordance with its terms; |
| (d) | we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document relating to any indemnification, contribution, non-reliance, exculpation, release, limitation or exclusion of remedies, waiver or other provisions having similar effect that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, or to the extent any such provision purports to, or has the effect of, waiving or altering any statute of limitations; |
| (e) | we call to your attention that irrespective of the agreement of the parties to any Transaction Document, a court may decline to hear a case on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal courts of the United States of America in any action arising out of or relating to any Transaction Document; |
| (f) | to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in any Transaction Document, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity or constitutionality; |
| (g) | we do not express any opinion with respect to the enforceability of Article 10 of the Indenture to the extent that such section provides the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture or the effect thereof on the opinions herein stated; |
| (h) | we do not express any opinion with respect to the enforceability of the provisions contained in Section 10.02 of the Indenture to the extent that such provisions limit the obligation of the Guarantors under the Indenture or the Note Certificates or any right of contribution of any party with respect to such Guarantee; |
| (i) | we have assumed that NXP Funding has accepted appointment as agent to receive service of process and call to your attention that we do not express any opinion if and to the extent such agent shall resign such appointment. Further, we do not express any opinion with respect to the irrevocability of the designation of such agent to receive service of process; |
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| (j) | we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document providing for indemnity by any party thereto against any loss in obtaining the currency due to such party under any Transaction Document from a court judgment in another currency; |
| (k) | we call to your attention that the opinions stated herein are subject to possible judicial action giving effect to governmental actions or laws of jurisdictions other than those with respect to which we express our opinion; and |
| (l) | we do not express any opinion whether the execution or delivery of any Transaction Document by any Opinion Party, or the performance by any Opinion Party of its obligations under any Transaction Document to which such Opinion Party is a party will constitute a violation of, or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations of any Opinion Party or any of its subsidiaries. |
In addition, in rendering the foregoing opinions we have assumed that:
| (a) | each of the Company and the Parent (i) is duly formed and is validly existing and in good standing, (ii) has requisite legal status and legal capacity under the laws of The Netherlands and (iii) has complied and will comply with all aspects of the laws of The Netherlands, in connection with the transactions contemplated by, and the performance of its obligations under, the Transaction Documents and the Registration Rights Agreement to which the Company (including in its capacity as the sole member of NXP Funding) or the Parent is a party; |
| (b) | each of the Company and the Parent has the power and authority to execute, deliver and perform all its obligations under each of the Transaction Documents to which the Company (including in its capacity as the sole member of NXP Funding) or the Parent is a party; |
| (c) | neither the execution and delivery by the Company, NXP Funding, NXP USA or the Parent of the Transaction Documents to which the Company, NXP Funding, NXP USA or the Parent is a party nor the performance by the Company, NXP Funding, NXP USA or the Parent of its obligations under each of the Transaction Documents or the Registration Rights Agreement to which the Company, NXP Funding, NXP USA or the Parent is a party, including the issuance of the New Notes: (i) conflicts or will conflict with the organizational documents of the Company or the Parent, (ii) constituted or will constitute a violation of, or a default under, any lease, indenture, agreement or other instrument to which the Company, NXP Funding, NXP USA or the Parent or their property is subject (except that we do not make the assumption set forth in this clause (ii) with respect to those agreements or instruments expressed to be governed by the laws of the State of New York which are listed in Part II of the Registration Statement or the Parent’s Annual Report on Form 10-K for the year ended December 31, 2021), (iii) contravened or will contravene any order or decree of any governmental authority to which the Company, NXP Funding, NXP USA or the Parent or their property is subject, or (iv) violated or will violate any law, rule or regulation to which the Company, NXP Funding, NXP USA or the Parent or their property is subject (except that we do not make the assumption set forth in this clause (iii) with respect to the Opined-on Law); |
| (d) | neither the execution and delivery by the Company, NXP Funding, NXP USA or the Parent of the Transaction Documents to which the Company, NXP Funding, NXP USA or the Parent is a party nor the enforceability of each of the Transaction Documents to which the Company, NXP Funding, NXP USA or the Parent is a party against the Company, NXP Funding, NXP USA or the Parent requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction; and |
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| (e) | the LLC Agreement is the only limited liability company agreement, as defined under the DLLCA, of NXP Funding; NXP Funding has, and since the time of its formation has had, at least one validly admitted and existing member of NXP Funding and (i) no procedures have been instituted for, and no other event has occurred, including, without limitation, any action taken by NXP Funding or its sole member, as applicable, that would result in, the liquidation, dissolution or winding-up of NXP Funding, (ii) no event has occurred that has adversely affected the good standing of NXP Funding under the laws of its jurisdiction of formation, and NXP Funding has taken all actions required by the laws of its jurisdiction of formation to maintain such good standing and (iii) no grounds exist for the revocation or forfeiture of NXP Funding’s Certificate of Formation. |
We hereby consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations. We also hereby consent to the filing of this opinion with the Commission as an exhibit to the Parent’s Current Report on Form 8-K being filed on the date hereof and incorporated by reference into the Registration Statement. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
| Very truly yours, |
| /s/ Skadden, Arps, Slate, Meagher & Flom LLP |
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