Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
LAM RESEARCH
CORPORATION
Amended and restated as of June 2, 2012
ARTICLE I
CORPORATE OFFICES
1.1
REGISTERED OFFICE
The registered office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. The name of the
registered agent of the corporation at such location is The Corporation Trust Company.
1.2
OTHER OFFICES
The board of directors may at any time establish other offices at any place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1
PLACE OF MEETINGS
Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the board of directors. In
the absence of any such designation, stockholders’ meetings shall be held at the registered office of the Corporation.
2.2
ANNUAL MEETING
(a) An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall
be held at such place, on such date, and at such time as the board of directors shall each year fix.
(b) Nominations of
persons for election to the board of directors and the proposal of business to be transacted by the stockholders may be made at an annual meeting of stockholders (1) pursuant to the corporation’s proxy materials with respect to such
meeting, (2) by or at the direction of the board of directors, or (3) by any stockholder of record of the corporation (the “Record Stockholder”) at the time of the giving of the notice required in the following paragraph, who is
entitled to vote at the meeting and who has complied with the notice procedures set forth in this section. For the avoidance of doubt, the foregoing clause (3) shall be the exclusive means for a stockholder to make nominations or propose
business (other than business included in the corporation’s proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange
Act”)) at an annual meeting of stockholders.
(c) For nominations or business to be properly brought before an annual meeting by a Record
Stockholder pursuant to clause (3) of the foregoing paragraph, (1) the Record Stockholder must have given timely notice thereof in writing to the secretary of the corporation, (2) any such business must be a proper matter for
stockholder action under Delaware law and (3) the Record Stockholder and the beneficial owner, if any, on whose behalf any such proposal or nomination is made, must have acted in accordance with the representations set forth in the Solicitation
Statement required by these bylaws. To be timely, a Record Stockholder’s notice shall be received by the secretary at the principal executive offices of the corporation not less than 45 or more than 75 days prior to the one-year anniversary of
the date on which the corporation first mailed its proxy materials for the preceding year’s annual meeting of stockholders; provided, however, that, subject to the last sentence of this Section 2.2(c), if the meeting is convened more than
30 days prior to or delayed by more than 30 days after the anniversary of the preceding year’s annual meeting, or if no annual meeting was held in the preceding year, notice by the Record Stockholder to be timely must be so received not later
than the close of business on the later of (i) the 90th day before such annual meeting or (ii) the 10th day following the day on which public announcement of the date of such meeting is first made. Notwithstanding anything in the preceding
sentence to the contrary, in the event that the number of directors to be elected to the board of directors is increased and there has been no public announcement naming all of the nominees for director or indicating the increase in the size of the
board of directors made by the corporation at least 10 days before the last day a Record Stockholder may deliver a notice of nomination in accordance with the preceding sentence, a Record Stockholder’s notice required by this bylaw shall also
be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the secretary at the principal executive offices of the corporation not later than the close of business on the 10th
day following the day on which such public announcement is first made by the corporation. In no event shall an adjournment, or postponement of an annual meeting for which notice has been given, commence a new time period for the giving of a Record
Stockholder’s notice.
(d) Such Record Stockholder’s notice shall set forth:
1. if such notice pertains to the nomination of directors, as to each person whom the Record Stockholder proposes to
nominate for election or reelection as a director, all information relating to such person as would be required to be disclosed in solicitations of proxies for the election of such nominees as directors pursuant to Regulation 14A under the Exchange
Act, such person’s written consent to serve as a director if elected, and a statement whether such person, if elected, intends to tender, promptly following such person’s election or re-election, an irrevocable resignation effective upon
such person’s failure to receive the required vote for re-election at the next meeting at which such person would face re-election and upon acceptance of such resignation by the board of directors, in accordance with the Corporation’s
Corporate Governance Guidelines;
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2. as to any business that the Record Stockholder proposes to bring before
the meeting, a brief description of such business, the reasons for conducting such business at the meeting and any material interest in such business of such Record Stockholder and the beneficial owner, if any, on whose behalf the proposal is made;
and
3. as to (1) the Record Stockholder giving the notice and (2) the beneficial owner, if any, on
whose behalf the nomination or proposal is made (each, a “party”):
(i) the name and address of each
such party;
(ii)(A) the class, series, and number of shares of the corporation that are owned, directly or
indirectly, beneficially and of record by each such party, (B) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price
related to any class or series of shares of the corporation or with a value derived in whole or in part from the value of any class or series of shares of the corporation, whether or not such instrument or right shall be subject to settlement in the
underlying class or series of capital stock of the corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by each such party, and any other direct or indirect opportunity to profit or share in any
profit derived from any increase or decrease in the value of shares of the corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which either party has a right to vote, directly or indirectly, any shares
of any security of the corporation, (D) any short interest in any security of the corporation held by each such party (for purposes of this Section 2.2(d), a person shall be deemed to have a short interest in a security if such person
directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (E) any rights to
dividends on the shares of the corporation owned beneficially directly or indirectly by each such party that are separated or separable from the underlying shares of the corporation, (F) any proportionate interest in shares of the corporation
or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which either party is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any
performance-related fees (other than an asset-based fee) that each such party is directly or indirectly entitled to based on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if any, as of the date of such
notice, including without limitation any such interests held by members of each such party’s immediate family sharing the same household (which information set forth in this paragraph shall be supplemented by such stockholder or such
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beneficial owner, as the case may be, not later than ten (10) days after the record
date for determining the stockholders entitled to vote at the meeting; provided, that if such date is after the date of the meeting, not later than the day prior to the meeting);
(iii) any other information relating to each such party that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act; and
(iv) a statement whether or not each such party will deliver a proxy statement and form of proxy to holders of, in the
case of a proposal, at least the percentage of voting power of all of the shares of capital stock of the corporation required under applicable law to carry the proposal or, in the case of a nomination or nominations, at least the percentage of
voting power of all of the shares of capital stock of the corporation reasonably believed by the Record Stockholder or beneficial holder, as the case may be, to be sufficient to elect the nominee or nominees proposed to be nominated by the Record
Stockholder (such statement, a “Solicitation Statement”).
(e) A person shall not be eligible for election or
re-election as a director at an annual meeting unless (i) the person is nominated by a Record Stockholder in accordance with Section 2.2(b)(3) or (ii) the person is nominated by or at the direction of the board of directors. Only such
business shall be conducted at an annual meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this section. The chairman of the meeting shall have the power and the duty to determine
whether a nomination or any business proposed to be brought before the meeting has been made in accordance with the procedures set forth in these bylaws and, if any proposed nomination or business is not in compliance with these bylaws, to declare
that such defectively proposed business or nomination shall not be presented for stockholder action at the meeting and shall be disregarded.
(f) For purposes of these bylaws, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or
in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(g) Notwithstanding the foregoing provisions of this Section 2.2, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with
respect to matters set forth in this Section 2.2. Nothing in this Section 2.2 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
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2.3
SPECIAL MEETING
(a) Special meetings of the stockholders, other than those required by statute, may be called only by the board of directors, the
chairman of the board or the president. The board of directors may postpone or reschedule any previously scheduled special meeting.
(b) Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting by or at the direction of the board of directors. The notice of such special
meeting shall include the purpose for which the meeting is called. Nominations of persons for election to the board of directors may be made at a special meeting of stockholders at which directors are to be elected (1) by or at the direction of
the board of directors or (2) by any stockholder of record at the time of giving of notice provided for in this paragraph, who shall be entitled to vote at the meeting and who delivers a written notice to the secretary setting forth the
information set forth in Section 2.2(d)(1) and 2.2(d)(3) of this Article II. Nominations by stockholders of persons for election to the board of directors may be made at such a special meeting of stockholders only if such stockholder of
record’s notice required by the preceding sentence shall be received by the secretary at the principal executive offices of the corporation not later than the close of business on the later of the 90th day prior to such special meeting or the
10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the board of directors to be elected at such meeting. In no event shall an adjournment, or postponement of a
special meeting for which notice has been given, commence a new time period for the giving of a stockholder of record’s notice. A person shall not be eligible for election or reelection as a director at a special meeting unless the person is
nominated (i) by or at the direction of the board of directors or (ii) by a stockholder of record in accordance with the notice procedures set forth in this Article II.
(c) Notwithstanding the foregoing provisions of this Section 2.3, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to matters set forth in this Section 2.3. Nothing in this Section 2.3 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the
corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
2.4
NOTICE OF STOCKHOLDERS’
MEETINGS
All notices of meetings with stockholders shall be in writing and shall be sent or otherwise given in accordance
with Section 2.5 of these bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting, except as otherwise required by these bylaws, the certificate
of incorporation or the General Corporation Law of Delaware. The notice shall specify the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.
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2.5
MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to
the stockholder at his address as it appears on the records of the corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the
manner provided in Section 232 of the General Corporation Law of Delaware. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
2.6
QUORUM
The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum is not present or represented at any meeting of
the stockholders, then either (i) the chairman of the meeting or (ii) the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed.
2.7
ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting the corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
2.8
VOTING
The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section 2.11 of these bylaws, subject to the provisions of Sections 217 and 218 of the General Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgors
and joint owners of stock and to voting trusts and other voting agreements). Each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such
stockholder. The board of directors, in its discretion, or the officer of the corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
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A nominee for director shall be elected to the Board of Directors if the votes cast for such
nominee’s election exceed the votes cast against such nominee’s election (with abstentions and “broker non-votes” not counted as votes cast either for or against such nominee’s election); provided, however, that directors
shall be elected by a plurality of the votes cast at any meeting of stockholders at which (i) the number of nominees for the board exceeds the number of open board seats; (ii) one or more nominees has been nominated pursuant to the advance
notice requirements for stockholder nominees set forth in these bylaws or pursuant to the provisions of any future law, rule or regulation that require the Corporation to allow stockholder nominations in a manner other than that provided in these
bylaws; and (iii) any such nomination has not been withdrawn on or before the tenth day before the Corporation first mails its notice of meeting for such meeting to the stockholders. If directors are to be elected by a plurality of the votes
cast, stockholders shall not be permitted to vote against a nominee.
When a quorum is present at any meeting, the affirmative
vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting (other than director elections), unless the question is one upon which, by express
provision of the statutes or of the Certificate of Incorporation, a different vote is required, in which case such express provision shall govern and control the decision of the question.
2.9
WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the General Corporation Law of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders need be specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws.
2.10
STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless
otherwise provided in the certificate of incorporation, any action required by this chapter to be taken at any annual or special meeting of stockholders of a corporation, or any action that may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice, and without a vote if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
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Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in writing. If the action which is consented to is such as would have required the filing of a certificate under any section of the General Corporation Law of Delaware if
such action had been voted on by stockholders at a meeting thereof, then the certificate filed under such section shall state, in lieu of any statement required by such section concerning any vote of stockholders, that written notice and written
consent have been given as provided in Section 228 of the General Corporation Law of Delaware.
In order that the
corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record
date is adopted by the board of directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the board of directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by written notice to the secretary, request the board of directors to fix a record date. The board of directors shall promptly, but in all events within ten (10) days
after the date on which such a request is received, adopt a resolution fixing the record date. If no record date has been fixed by the board of directors within ten (10) days of the date on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by applicable law, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded, to the attention of the secretary of the corporation. Delivery shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of
directors and prior action by the board of directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the date on
which the board of directors adopts the resolution taking such prior action.
In the event of the delivery to the corporation
of a written consent or consents purporting to authorize or take corporate action and/or related revocations (each such written consent and any revocation thereof is referred to in this Section 2.10 as a “Consent”), the secretary of
the corporation shall provide for the safekeeping of such Consents and shall as soon as practicable thereafter conduct such reasonable investigation as he deems necessary or appropriate for the purpose of ascertaining the validity of such Consents
and all matters incident thereto, including, without limitation, whether the holders of shares having the requisite voting power to authorize or take the action specified in the Consents have given consents. No consent to corporate action in writing
without a meeting shall be effective unless delivered to the corporation within sixty (60) days of the earliest dated consent delivered to the corporation.
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2.11
RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
Except as otherwise permitted by law, in order that the corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall be not more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other action.
If the board of directors does not so fix a record date:
(i) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders for any other purpose shall be at the close of business on the day on
which the board of directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
2.12
PROXIES
Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by a
written proxy, signed by the stockholder and filed with the secretary of the corporation, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be deemed
signed if the stockholder’s name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by the stockholder or the stockholder’s attorney-in-fact. The revocability of a proxy that states on
its face that it is irrevocable shall be governed by the provisions of Section 212(e) of the General Corporation Law of Delaware.
2.13
LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of
the stock ledger of a corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each stockholder; provided, however, if the record date for determining the stockholders
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entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders
entitled to vote as of the 10th day before the meeting date. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, in the manner provided by law. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Such list shall presumptively determine
the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
2.14
CONDUCT OF BUSINESS
The chairman of any meeting of stockholders shall determine the order of business and the
procedures at the meeting, including such matters as the regulation of the manner of voting and the conduct of business.
2.15
ORGANIZATION
Such person as the Board of Directors may have designated or, in the absence of such a person, the chairman of
the board or, in his or her absence, the president of the Corporation or, in his or her absence, such person as may be chosen by the holders of a majority of the voting power of the shares entitled to vote who are present, in person or by proxy,
shall call to order any meeting of the stockholders and act as chairman of the meeting. In the absence of the secretary of the Corporation, the secretary of the meeting shall be such person as the chairman of the meeting appoints. Whether or not a
quorum is present or represented at any meeting of stockholders, the chairman of the meeting shall have the power to adjourn such meeting to another place, date and time.
ARTICLE III
DIRECTORS
3.1
POWERS
Subject to the provisions of the General Corporation Law of Delaware and any limitations in the certificate of incorporation or these bylaws relating to action required to be approved by the stockholders
or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the board of directors.
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3.2
NUMBER OF DIRECTORS
The number of directors constituting the whole board of directors shall be eleven, provided that the board of directors may change such
number (but not below the number of directors then in office) by resolution from time to time within a range of seven to fifteen directors.
No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.
3.3
ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, directors shall be elected at each annual meeting of stockholders to hold office
until the next annual meeting. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws, wherein other qualifications for directors may be prescribed. Each director, including a director elected to
fill a vacancy, shall hold office until his successor is elected and qualified or until his earlier resignation or removal.
Elections of directors need not be by written ballot unless a stockholder demands election by written ballot at the meeting and before
voting begins.
3.4
RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice to the corporation. A resignation is effective when it is delivered unless the resignation specifies a later effective date or an effective date
determined upon the happening of an event or events. When one or more directors so resigns, a majority of the directors then in office (although less than a quorum), or a sole remaining director, shall have power to fill such vacancy or vacancies,
and each director so chosen shall hold office as provided in this section in the filling of other vacancies. When one or more directors resigns and the resignation is effective at a future date or upon the happening of a future event, a majority of
the directors then in office (although less than a quorum), or a sole remaining director, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as provided in this section in the filling of other vacancies.
A vacancy created by the removal of a director by the vote or written consent of the stockholders or by a court order may be filled only by the vote of a majority of the outstanding shares entitled to
vote thereon represented at a duly held meeting at which a quorum is present. Each director so elected shall hold office until the next annual meeting of the stockholders and until a successor has been elected and qualified.
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Unless otherwise provided in the certificate of incorporation or these bylaws:
(i) Vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by
all of the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
(ii) Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors
by the provisions of the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by
a sole remaining director so elected.
If at any time, by reason of death or resignation or other cause, the corporation
should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a
special meeting of stockholders in accordance with the provisions of the certificate of incorporation or these bylaws, or may apply to the Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the General
Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship, the directors then in
office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), then the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten (10) percent of the
total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors
then in office as aforesaid, which election shall be governed by the provisions of Section 211 of the General Corporation Law of Delaware as far as applicable.
A director elected or appointed to fill a vacancy or newly created directorship shall serve until the next annual meeting of stockholders or until a successor shall be elected and qualified.
3.5
PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold meetings, both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the board of directors, or any committee
designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in person at the meeting.
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3.6 [RESERVED]
3.7
REGULAR MEETINGS
Regular meetings of the board of directors may be
held without notice if the times of such meetings are fixed by the board of directors.
3.8
SPECIAL MEETINGS; NOTICE
Notice of the time and place of special meetings shall be given to each director at that director’s address as it is
shown on the records of the corporation. Notice of such special meeting stating the place, date and hour of the meeting shall be given to each director either (i) by mail not less than four (4) days before the date of the meeting, or
(ii) personally, by telephone, telecopy, telegram, telex or other similar means of communication on twenty-four (24) hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances. Any oral notice given personally or by telephone may be communicated either to the director or to a person at the office of the director whom the person giving the notice has reason to believe will promptly
communicate it to the director.
3.9
QUORUM
At all meetings of the board of directors, a majority of the authorized number of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
3.10
WAIVER OF NOTICE
Whenever notice is required to be given under any
provision of the General Corporation Law of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof, signed by the person entitled to notice, or a waiver by electronic transmission by such person, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors, or members of a
committee of directors, need be specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws.
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3.11
ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the board of directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum is present.
3.12
BOARD ACTION BY WRITTEN
CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of incorporation or these bylaws, any action
required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the board or committee. Any reference in these bylaws to action in writing shall include action by electronic transmission to the fullest extent permitted by law.
3.13
FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of incorporation or these bylaws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attending each meeting of the board of directors and may be paid a fixed sum for attending each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
3.14
APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiaries who is not an “executive officer”
(as such term is defined in the Securities Exchange Act of 1934, as amended) or a director of the corporation, whenever in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The
loan, guaranty or other assistance may be with or without interest and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in
this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
3.15
REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the
certificate of incorporation or by these bylaws, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.
14
No reduction of the authorized number of directors shall have the effect of removing any
director prior to the expiration of such director’s term of office.
3.16
CHAIRMAN OF THE BOARD OF DIRECTORS
The corporation may also have, at the discretion of the board of directors, a chairman of the board of directors as well as a
vice chairman, neither of whom shall be considered an officer of the corporation solely by reason of being appointed to either position.
ARTICLE IV
COMMITTEES
4.1
COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a majority of the whole board, from time to time, pursuant to the authority granted in subsection (2) of section 141(c) of the General Corporation
Law of Delaware, designate one or more committees of the board, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the board and shall, for those committees and any others provided for herein, elect a
director or directors to serve as the member or members, designating, if it desires, other directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to
act at the meeting in the place of any such absent or disqualified member.
4.2
COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
4.3
MEETINGS AND ACTION OF COMMITTEES
The board of directors or a committee may adopt rules for the governance of any committee. A majority of the members of a committee shall constitute a quorum. All matters shall be determined by
a majority vote of the members present.
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ARTICLE V
OFFICERS
5.1
OFFICERS
The officers of the corporation shall be a chief executive officer, a chief financial officer and a secretary. The corporation may also
have an executive chairman of the board, an executive vice-chairman of the board and any such other officers as may be appointed in accordance with the provisions of Section 5.2 or 5.3 of these bylaws. Any number of offices may be held by the
same person.
5.2
APPOINTMENT OF OFFICERS BY BOARD
The board of directors shall appoint the chief executive officer and the chief financial officer. If the corporation has an executive
chairman, executive vice-chairman or president, those officers shall also be appointed by the board of directors. The other officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3
of these bylaws, shall be appointed by the board of directors and serve at the board’s discretion and with such authority as delegated to them by the board.
5.3
APPOINTMENT OF OFFICERS BY CHIEF EXECUTIVE OFFICER
The board of
directors may empower the chief executive officer to appoint such other officers and agents as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided
in these bylaws or as the chief executive officer may from time to time determine.
5.4
REMOVAL AND RESIGNATION OF
OFFICERS
Any officer may be removed, either with or without cause, (a) by an affirmative vote of the majority of the
board of directors at any regular or special meeting of the board, (b) by the chief executive officer, if that officer was appointed by the chief executive officer, or (c) by any other officer to whom the board of directors has conferred
the power of removal, provided, however, that only the board of directors may remove the chief executive officer, chief financial officer, chairman of the board, executive chairman and president.
Any officer may resign at any time by giving written notice to the corporation.
5.5
VACANCIES IN OFFICES
Any vacancy occurring in any office shall be filled in the manner specified for appointment to such office in Section 5.2 or 5.3.
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5.6
CHIEF EXECUTIVE OFFICER
Subject to the discretion of the board of directors, the chief executive officer shall have general supervision, direction and control of
the business and the other officers of the corporation and the general powers and duties of management generally vested in the office of chief executive officer of a corporation, and shall have such other powers and duties as may be prescribed by
the board of directors or these bylaws. In its discretion, the board of directors may vest certain authority generally vested in the chief executive officer in an executive chairman of the board or another officer of the Company.
5.7
SECRETARY
The secretary shall keep or cause to be kept, at the principal office of the corporation or such other place as the board of directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and shareholders.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation’s transfer agent or registrar, as determined by resolution of the board of directors, a share register, or a duplicate share register, showing the names of all shareholders
and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the board of directors required to be
given by law or by these bylaws. He shall keep the seal of the corporation, if one be adopted, in safe custody and shall have such other power and perform such other duties as may be prescribed by the board of directors or by these bylaws.
In the absence of a secretary, or in the event of the secretary’s inability or refusal to act, an assistant secretary or
assistant secretaries or such other officer selected by the board of directors or by the chief executive officer shall perform the duties and exercise the powers of the secretary.
5.8
CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and shares. The books of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all money and other valuables in the name and to the credit of the corporation with such
depositories as may be designated by the board of directors. He shall disburse the funds of the corporation as may be ordered by
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the board of directors, shall render to the chief executive officer and directors, whenever they request it,
an account of all of his transactions as chief financial officer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or these bylaws.
ARTICLE VI
INDEMNIFICATION
6.1
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner permitted by the General Corporation Law of Delaware, indemnify each of
its directors and officers (each, an “Indemnitee”) against expenses (including attorneys’ fees), judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of
the fact that such person is or was a director or officer of the corporation. For purposes of this Section 6.1, a “director” or “officer” of the corporation includes any person (i) who is or was a director or officer of
the corporation, (ii) who is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was a director or officer of a corporation
which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.
Notwithstanding any other provision in these bylaws to the contrary, the corporation shall not be obligated to make any indemnity:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity
provision; (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the corporation within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provisions of state statutory law or common law; (c) for claims initiated or brought by Indemnitee, except (i) with respect to actions or proceedings brought to establish or enforce a right to receive advancement or indemnification
under any statute, the certificate of incorporation, these bylaws, agreement, vote of stockholders or directors or otherwise, (ii) if the board has approved the initiation or bringing of such claim, or (iii) as otherwise required under the
General Corporation Law of Delaware; or (d) for which payment is prohibited by applicable law.
6.2
INDEMNIFICATION OF
OTHERS
The corporation shall have the power, to the extent and in the manner permitted by the General Corporation Law of
Delaware, to indemnify each of its employees and agents (other than directors and officers) against expenses (including attorneys’ fees), judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was an agent of the corporation. For purposes of this Section 6.2, an “employee” or “agent” of
18
the corporation (other than a director or officer) includes any person (i) who is or was an employee or
agent of the corporation, (ii) who is or was serving at the request of the corporation as an employee or agent or another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an employee or agent of a
corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.
6.3
INSURANCE
The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the
provisions of the General Corporation Law of Delaware.
6.4
NON-EXCLUSIVITY OF RIGHTS
The rights to indemnification conferred in this Article VI shall not be exclusive of any other right that any person may have or
hereafter acquire under any statute, the certificate of incorporation, these bylaws, agreement, vote of stockholders or directors or otherwise.
ARTICLE VII
RECORDS AND REPORTS
7.1
MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at such place or places as designated by the board of directors, keep a record of its shareholders listing their names and addresses and
the number and class of shares held by each shareholder, a copy of these bylaws as amended to date, accounting books, and other records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath
stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent is the person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing that authorizes the attorney or other agent to so act on behalf of stockholder. The demand under oath shall be directed to the corporation at its registered office in Delaware or at its
principal place of business. The list of stockholders entitled to vote at a stockholder meeting shall be available in accordance with Section 2.13.
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7.2
INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation’s stock ledger, a list of its stockholders, and its other books and
records for a purpose reasonably related to his position as a director. The Court of Chancery is hereby vested with the exclusive jurisdiction to determine whether a director is entitled to the inspection sought. The Court may summarily order the
corporation to permit the director to inspect any and all books and records, the stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in its discretion, prescribe any limitations or conditions with reference to
the inspection, or award such other and further relief as the Court may deem just and proper.
7.3 [RESERVED]
7.4
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, the president, any vice president, the chief financial officer, the secretary or assistant secretary of this corporation, or any other person authorized by the board of
directors or the president or a vice president, is authorized to vote, represent, and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation.
The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
ARTICLE VIII
OTHER MATTERS
8.1
CHECKS
From time to time, the board of directors shall determine by
resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
8.2
EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter
into any contract or execute any instrument in the name of and on behalf of the corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the board of directors or within the agency power of
any officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
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8.3
STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of the corporation shall be represented by certificates, provided that the board of directors may establish by resolution or
resolutions that some or all of any or all classes or series of the corporation’s stock shall be issued or issuable as uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Every holder of certificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice chairman of the board of directors, or the president or vice president,
and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile signatures has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.
The
corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares,
or upon the books and records of the corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully
paid shares, the corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
8.4
SPECIAL DESIGNATION CERTIFICATES
If the corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional
or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the
corporation shall issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements there may be set forth on
the face or back of the certificate that the corporation shall issue to represent such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests the powers, the designations, the
preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
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8.5
LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates for shares shall be issued to replace a previously issued certificate
unless the latter is surrendered to the corporation and canceled at the same time. The corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or uncertificated shares.
8.6
CONSTRUCTION;
DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the
General Corporation Law of Delaware shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, the masculine gender includes the
feminine, the feminine gender includes the masculine, and the term “Person” includes both a corporation and a natural person.
8.7
DIVIDENDS
The directors of the corporation, subject to any
restrictions contained in the certificate of incorporation, may declare and pay dividends upon the shares of its capital stock pursuant to the General Corporation Law of Delaware. Dividends may be paid in cash, in property, or in shares of the
corporation’s capital.
The directors of the corporation may set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose and may abolish any such reserves. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the corporation, and meeting
contingencies.
8.8
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the board of directors and may be changed by the board of directors. Unless otherwise designated, the fiscal year of the corporation
shall end on June 30.
8.9
SEAL
The corporation may adopt a corporate seal, which may be altered at pleasure, and may use the same by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
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8.10
TRANSFER OF STOCKS
Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction in its books.
8.11
STOCK TRANSFER AGREEMENTS
The corporation shall have power to enter into and perform any agreement with any number of shareholders of any one or more classes of stock of the corporation to restrict the transfer of shares of stock
of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the General Corporation Law of Delaware.
8.12
REGISTERED STOCKHOLDERS
The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner, shall be entitled to hold liable for calls and assessments the person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of
Delaware.
8.13
FORUM FOR CERTAIN ACTIONS
Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action
or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders,
(iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine.
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ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be
adopted, amended or repealed by the stockholders entitled to vote, provided, however, that the corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal bylaws upon the directors. The fact that such power has
been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal bylaws.
24
CERTIFICATE OF ADOPTION OF AMENDED AND RESTATED BYLAWS
OF
LAM RESEARCH
CORPORATION
Certificate of Adoption
The undersigned hereby certifies that he is the duly elected, qualified, and acting Secretary of Lam Research Corporation (the “Corporation”) and that the foregoing Amended and Restated Bylaws
were adopted as the Amended and Restated Bylaws of the Company effective as of June 2, 2012 by the Board of Directors of the Corporation.
/s/ GEORGE M. SCHISLER, JR.
George M. Schisler, Jr., Secretary
25
Exhibit 4.2
NOVELLUS SYSTEMS, INC.
as Issuer
LAM RESEARCH CORPORATION
as Guarantor
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
First
Supplemental Indenture
Dated as of June 4, 2012
to the
Indenture
Dated as of May 10, 2011
2.625% Senior
Convertible Notes due 2041
FIRST SUPPLEMENTAL INDENTURE dated as of June 4, 2012, among Novellus Systems, Inc., a
corporation duly organized and existing under the laws of the State of California, as Issuer (the “
Company
”), having its principal office at 4000 North First Street, San Jose, California 95134; Lam Research Corporation, a
corporation duly organized and existing under the laws of the State of Delaware, as Guarantor (“
Parent
”), having its principal office at 4650 Cushing Parkway, Fremont, California 94538; and The Bank of New York Mellon Trust Company,
N.A., a national banking association, as Trustee (the “
Trustee
”).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of May 10, 2011 (as amended and supplemented, the
“
Indenture
”), providing for the issuance of the Company’s 2.625% Senior Convertible Notes due 2041 (the “
Securities
”).
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of December 14, 2011 (the “
Merger Agreement
”), among Parent, BLMS Inc., a California corporation and a wholly
owned subsidiary of Parent (“
Merger Sub
”), and the Company, Parent will acquire all outstanding shares of the Company effective on the date hereof upon the consummation of the merger contemplated by the Merger Agreement (such time
of effectiveness, the “
Effective Time
”).
WHEREAS, pursuant to Section 1.6(a) of the Merger Agreement,
each share of common stock, no par value, of the Company (the “
Company Shares
”), issued and outstanding immediately prior to the Effective Time (other than any Company Shares to be canceled pursuant to Section 1.6(b) thereof
and any Dissenting Company Shares (as defined in the Merger Agreement)) will be canceled and converted automatically into the right to receive 1.125 fully paid and nonassessable shares of common stock, par value $0.001 per share, of Parent (the
“
Parent Shares
”).
WHEREAS, pursuant to Section 5.16(b) of the Merger Agreement, Parent has agreed to
enter into a supplemental indenture in respect of the Securities containing the provisions required by the Indenture, including a provision that, at the Effective Time, (1) each outstanding Security will no longer be convertible into Company
Shares and will be convertible solely into Parent Shares and cash, pursuant to, and in accordance with, the terms of the Indenture, and (2) Parent will assume all of the obligations of the Company under the Securities, any coupons appertaining
thereto and the Indenture.
WHEREAS, Section 8.07(a) of the Indenture requires that, upon the occurrence of, among other
things, any consolidation, merger or combination of the Company with another Person, in each case as a result of which the Company Shares would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or
any combination thereof), then, at the effective time of the transaction, the right to convert a Security will be changed to a right to convert each $1,000 principal amount of such Security into the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination thereof) that a holder of a number of Company Shares equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive (the
“
Reference Property
”) upon such transaction.
WHEREAS, Section 10.01 of the Indenture provides, among other things, that the Company
shall not consolidate with or merge into any other Person unless the Surviving Entity expressly assumes by supplemental indenture, executed and delivered to the Trustee, all of the Company’s obligations under the Securities and the Indenture
and that, if upon the occurrence of any such consolidation, merger, sale, conveyance, transfer or lease the Securities would become convertible into securities issued by an issuer other than the Surviving Entity, the issuer of the securities into
which the Securities have become convertible shall fully and unconditionally guarantee, on a senior basis, the Surviving Entity’s obligations under the Securities.
WHEREAS, Section 14.01 of the Indenture provides that, without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental thereto, in form satisfactory to the Trustee, to, among other things, provide for the assumption by a successor corporation of the Company’s obligations under the Indenture, add guarantees with
respect to the Securities and make any change that does not adversely affect the rights of any Holder.
NOW, THEREFORE, THIS
FIRST SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and for other good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually agreed, for the benefit of the Company and the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definitions
. As used in this First Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as defined therein. The words
“herein,” “hereof” and “hereby” and other words of similar import used in this First Supplemental Indenture refer to this First Supplemental Indenture as a whole and not to any particular section hereof.
Section 1.02.
Conflict with Trust Indenture Act
. If any provision of this First Supplemental Indenture limits, qualifies
or conflicts with a provision of the Trust Indenture Act that is required hereunder to be a part of and govern this First Supplemental Indenture, the latter provision shall control. If any provision of this First Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or excluded, such provision shall be deemed to apply to this First Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 1.03.
Effect of Headings and Table of Contents
. The Article and Section headings in this First Supplemental
Indenture are for convenience only and shall not affect the construction hereof, and all Article and Section references are to Articles and Sections, respectively, of this First Supplemental Indenture unless otherwise expressly stated.
Section 1.04.
Successors and Assigns
. All covenants and agreements in this First Supplemental Indenture by the Company
and Parent shall bind their respective successors and assigns, whether so expressed or not.
- 2 -
Section 1.05.
Severability Clause
. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.06.
Benefits of First Supplemental Indenture
. Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their respective successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.
Section 1.07.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
. This First Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of law principles thereof. Parent, the Company and the Trustee each hereby irrevocably submits to the jurisdiction of any New York
State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture, the
Guarantee and the Securities, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts. EACH OF THE COMPANY, PARENT AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 1.09.
Execution in Counterparts
. This First Supplemental Indenture may be executed in two or more counterparts,
which when so executed shall constitute one and the same agreement. The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or Portable Document Format (PDF) transmission shall constitute effective execution
and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be
their original signatures for all purposes. The parties hereto agree to deliver an originally executed First Supplemental Indenture to the Trustee.
Section 1.10.
No Adverse Interpretation of Other Agreements
. This First Supplemental Indenture may not be used to interpret any indenture, loan or debt agreement of any of Parent, the
Company or any of its Subsidiaries other than the indebtedness under the Indenture and the Securities as expressly amended by this First Supplemental Indenture. Any such other indenture, loan or debt agreement may not be used to interpret this First
Supplemental Indenture.
Section 1.11.
Ratification of Indenture; Supplemental Indenture Part of Indenture
.
Except as expressly amended by this First Supplemental Indenture, each of the Indenture and the Securities outstanding thereunder is in all respects ratified and confirmed, and all the terms, conditions and provisions thereof shall remain in full
force and effect. This First Supplemental Indenture shall form a part of, and shall be read and construed together with, the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be
bound hereby.
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Section 1.12.
Trustee’s Responsibilities
. The Trustee is not
responsible for the validity or the sufficiency of this First Supplemental Indenture or for the recitals herein.
ARTICLE TWO
ASSUMPTION OF OBLIGATIONS
Section 2.01.
Assumption of Obligations
. At the Effective Time, Merger Sub will merge with and into the Company, with the Company as the Surviving Company. The Company shall remain
obligated as the Issuer under the Indenture. As required by Section 10.01(b) of the Indenture, the Company, as the Surviving Company (as defined in the Merger Agreement) in the Merger, hereby expressly assumes all of the obligations of the
Company under the Securities and the Indenture.
ARTICLE THREE
AMENDMENTS OF THE INDENTURE
Section 3.01.
Amendments and Additions of Certain Definitions
.
(a) The following shall be added as additional definitions in Section 1.01 of the Indenture in appropriate alphabetical sequence:
““
First Supplemental Indenture
” means the First Supplemental Indenture, dated as of
June 4, 2012, among the Company, Parent and the Trustee.”
““
Guarantee
” has the
meaning specified in Section 15.01.”
““
Parent
” means the Person named as
“Parent” in the First Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Parent” shall mean such successor Person.”
(b) The definitions of “Fundamental Change” and “Last Reported Sale Price” in Section 1.01 of the Indenture
shall be amended by replacing all references to the phrase “the Company” with “Parent.”
(c) The
definition of “Common Stock” in Section 1.01 of the Indenture shall be amended and restated in full as follows:
““
Common Stock
” means the shares of common stock, par value $0.001 per share, of Parent as they exist on the date of the First Supplemental Indenture or any other shares of Capital
Stock of Parent into which the Common Stock shall be reclassified or changed or, in the event of a merger, consolidation or other similar transaction involving Parent that is otherwise permitted hereunder in which Parent is not the surviving
corporation, the common stock, common equity interests, ordinary shares or depositary shares or other certificates representing common equity interests of such surviving corporation or its direct or indirect parent corporation.”
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(d) The definition of “Company Request” or “Company Order” in
Section 1.01 of the Indenture shall be amended and restated in full as follows:
““
Company
Request
” or “
Company Order
” means a written request or order signed in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President, any Vice President, its
Chief Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. In each case where this Indenture requires the delivery of a Company Request or Company Order, such request or
order may be signed in the name of Parent by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President, any Vice President, its Chief Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee on behalf of the Company.”
(e) The definition of “Corporate
Trust Office” in Section 1.01 of the Indenture shall be amended and restated in full as follows:
““
Corporate Trust Office
” means the office of the Trustee at which the corporate trust business of
the Trustee shall, at any particular time, be principally administered, which office is located at 400 South Hope Street, Suite 400, Los Angeles, California 90071, Attention: Corporate Trust Unit.”
(f) The definition of “Daily Share Cap” in Section 1.01 of the Indenture shall be amended and restated in full as follows:
““
Daily Share Cap
” means 1.3389 shares of Common Stock per $1,000 principal amount of
Securities, which is equivalent to the quotient of (i) the product of (A) 19.99% of the number of shares of common stock, no par value, of the Company (the “
Company Common Stock
”) outstanding immediately prior to the Issue
Date and (B) 1.125, which is the number of shares of Common Stock issued in respect of each share of Company Common Stock issued and outstanding immediately prior to the effective time of the merger of BLMS Inc., a California corporation and
wholly owned subsidiary of Parent, with and into the Company, pursuant to which the Company became a wholly owned subsidiary of Parent, divided by (ii) the product of (A) the aggregate Principal Amount of Securities Outstanding on the
Issue Date (expressed in thousands) and (B) the number of Trading Days in the Observation Period;
provided
that to the extent that additional Securities are issued pursuant to the Initial Purchasers’ overallotment right granted
pursuant to the Purchase Agreement, the Daily Share Cap shall be adjusted with such additional Securities included in “the aggregate Principal Amount of Securities Outstanding on the Issue Date” in the preceding equation.”
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(g) The definition of “Officers’ Certificate” in Section 1.01 of the
Indenture shall be amended and restated in full as follows:
““
Officers’
Certificate
” means a certificate signed by (i) the President, Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, Chief Legal Officer, General Counsel, any Executive Vice President or any Senior Vice President,
and (ii) the Treasurer, an Assistant Treasurer, the Secretary, an Assistant Secretary or the Controller of the Company and delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 5.05
shall be the principal executive, financial or accounting officer of the Company. In each case where this Indenture requires the delivery of an Officers’ Certificate, including, without limitation, Section 5.05, such Officers’
Certificate may be signed by (i) the President, Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, Chief Legal Officer, General Counsel, any Executive Vice President or any Senior Vice President of Parent, and
(ii) the Treasurer, an Assistant Treasurer, the Secretary, an Assistant Secretary or the Controller of Parent, and delivered to the Trustee by Parent on behalf of the Company.”
(h) The definition of “Opinion of Counsel” in Section 1.01 of the Indenture shall be amended and restated in full as
follows:
““
Opinion of Counsel
” means a written opinion reasonably acceptable to the
Trustee of counsel, who may be external or in-house counsel for Parent or the Company.”
(i) The definition of
“Outstanding” in Section 1.01 of the Indenture shall be amended and restated in full as follows:
““
Outstanding
,” when used with respect to Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore
cancelled by the Trustee or accepted by the Trustee for cancellation;
(ii) Securities, or portions thereof,
for whose payment, redemption or repurchase money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than Parent or the Company) in trust or set aside and segregated in trust by Parent or the Company
(if Parent or the Company shall act as Paying Agent) for the Holders of such Securities;
provided
that if such Securities are to be redeemed or repurchased prior to the maturity thereof, notice of such redemption or repurchase shall have been
given to the Holders as herein provided, or provision satisfactory to a Responsible Officer of the Trustee shall have been made for giving such notice; and
(iii) Securities that have been paid or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture;
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provided
,
however
, that, in determining whether the Holders of the requisite
Principal Amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.”
(j) The definition of “Stock Transfer Agent” in Section 1.01 of the Indenture shall be amended and restated in full as
follows:
““
Stock Transfer Agent
” means Computershare Shareowner Services LLC or such
other Person as may be designated by Parent as the transfer agent for the Common Stock.”
(k) The definition of
“Subsidiary” in Section 1.01 of the Indenture shall be amended and restated in full as follows:
““
Subsidiary
” means a corporation, limited liability company, partnership or other entity more than
50% of the outstanding voting stock of which is owned, directly or indirectly, by Parent or the Company, as the context requires, or by one or more other Subsidiaries of Parent or the Company, as the context requires, or by Parent or the Company, as
the context requires, and one or more other of their respective Subsidiaries. For the purposes of this definition, “voting stock” means stock or other equity interest which ordinarily has voting power for the election of directors or
managers (or the equivalent), whether at all times or only so long as no senior class of stock or other equity interest has such voting power by reason of any contingency.”
(l) The definition of “Unrestricted Stock CUSIP” in Section 1.01 of the Indenture shall be deleted.
(m) The definition of “Vice President” in Section 1.01 of the Indenture shall be amended and restated in full as follows:
““
Vice President
,” when used with respect to Parent, the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.””
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(n) The definition of “Volume-Weighted Average Price” in Section 1.01 of the
Indenture shall be amended and restated in full as follows:
““
Volume-Weighted Average
Price
” means for any Trading Day the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “LRCX.UQ <equity> AQR” (or its equivalent successor if such page is not
available) in respect of the period from scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the
Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by Parent or the Company). The Volume-Weighted Average Price will be
determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.”
Section 3.02.
Amendments of Certain Provisions of the Indenture
.
(a) The following sections of the Indenture shall be amended by replacing all references to the phrase “the Company” with
“Parent”:
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•
|
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The third sentence of Section 8.09;
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(b) The following sections of the Indenture shall be amended by replacing all references to the phrase “the Company” with “Parent or the Company”:
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•
|
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The first sentence of Section 3.05(a);
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•
|
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Section 9.01(c) (
provided
that in such Section, the replacement shall be: “Parent’s or the Company’s”);
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(c) Section 1.04 shall be amended by replacing all references to the phrase “the Company” with “Parent or the Company, as applicable” and inserting a “,” after
“applicable”, unless a “,” or “.” otherwise follows such phrase as so amended.”
(d)
Section 1.05 shall be amended and restated in full as follows:
“Section 1.05.
Notices, Etc., to
Trustee, Parent and Company
. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(i) the Trustee by any Holder or by Parent or the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (including facsimile) to or with the Trustee at its applicable Corporate Trust Office; or
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(ii) Parent or the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing (including facsimile) and mailed, first-class postage prepaid, to Parent addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in writing to the Trustee by Parent, Attention: General Counsel.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods,
provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate
shall be amended and replaced by a duly executed addendum to such incumbency certificate whenever a person is to be added or deleted from the listing. If Parent or the Company elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s reasonable understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for
any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with Parent’s or the Company’s instructions. Each of Parent and the Company agrees to assume all risks arising out of the use
of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Notwithstanding any other provision of this Indenture or the Securities, (1) where this Indenture or the Securities
provide for notice by Parent or the Company to a Holder or to the Trustee of any event (including a Fundamental Change Company Notice, a Fundamental Change Repurchase Notice or a notice of a Make-Whole Fundamental Change), such notice shall be
sufficiently given if given by Parent, and (2) where this Indenture or the Securities provide for notice by the Trustee or by any Holder to Parent or the Company, such notice shall be sufficiently given if given to Parent.”
(e) Section 1.09 shall be amended and restated in full as follows:
“Section 1.09.
Successors and Assigns
. All covenants and agreements in this Indenture by Parent or the
Company shall bind its respective successors and assigns, whether so expressed or not.”
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(f) Section 1.12 shall be amended and restated in full as follows:
“Section 1.12.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of law principles thereof. Parent, the Company and the Trustee each hereby irrevocably submits to the jurisdiction of
any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this
Indenture, the Guarantee and the Securities, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts. EACH OF PARENT, THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.”
(g) Section 1.14 shall be amended and restated in full as follows:
“Section 1.14.
No Recourse Against Others
. None of Parent’s or the Company’s, or of any successor
entity’s, direct or indirect shareholders, employees, officers or directors, as such, past, present or future, shall have any personal liability in respect of the obligations of Parent or the Company, respectively, under the Indenture or the
Securities solely by reason of his or its status as such shareholder, employee, officer or director.”
(h)
Section 1.18 shall be amended and restated in full as follows:
“Section 1.18.
Calculations
.
Except as otherwise provided herein, Parent, the Company or their respective agents (other than the Trustee) will be responsible for making all calculations and determinations called for under the Indenture and the Securities. Parent, the Company or
their respective agents (other than the Trustee) will make all such calculations and determinations in good faith and, absent manifest error, its calculations and determinations will be final and binding on Holders. Parent or the Company, as
applicable, upon request will provide a schedule of its calculations to the Trustee, and the Trustee is entitled to rely conclusively upon the accuracy of Parent’s or the Company’s calculations and determinations without independent
verification. The Trustee will deliver a copy of any such schedule provided to it to any Holder upon the written request of such Holder.”
(i) Section 2.01(d) shall be amended and restated in full as follows:
“(d) Members of, or participants in, the Depositary (“
Agent Members
”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the
Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by Parent, the
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Company, the Trustee and any agent of Parent, the Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent Parent, the Company, the Trustee or any agent of Parent, the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of the rights of any Holder.”
(j) The third
paragraph of the Form of Face of Security in Section 2.02 shall be amended and restated in full as follows:
“Reference is made to the further provisions of this Security set forth on the reverse hereof, including, without
limitation, provisions giving the Company the right to redeem this Security under certain circumstances and provisions giving the Holder the right to convert this Security into Common Stock of Parent and to require the Company to repurchase this
Security upon certain events, in each case, on the terms and subject to the limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for all purposes have the same effect as though
fully set forth at this place. Capitalized terms used but not defined herein shall have such meanings as are ascribed to such terms in the Indenture.”
(k) Section 2.03 shall be amended as follows:
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(1)
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The second paragraph of the Form of Reverse of Security shall be amended by replacing all references to the phrase “the Company” with “Parent.”
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(2)
|
The seventh paragraph of the Form of Reverse of Security shall be amended and restated in full as follows:
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“
Conversion
. Subject to and in compliance with the provisions of the Indenture (including without limitation
the conditions of conversion of this Security set forth in Article 8 thereof), the Holder hereof has the right, at its option, to convert the Principal Amount hereof or any portion of such principal which is $1,000 or an integral multiple thereof,
into, subject to Section 8.01 of the Indenture, cash and shares of Common Stock, if any, at the Conversion Rate. The Conversion Rate as of the date of the First Supplemental Indenture is 28.4781 shares of Common Stock per $1,000 Principal
Amount of Securities, subject to adjustment in certain events described in the Indenture. Upon conversion, the Company shall deliver, for each $1,000 principal amount of Securities being converted, cash and shares of Common Stock, if any, equal to
the Settlement Amount in accordance with the Indenture. No fractional shares will be issued upon any conversion, but an adjustment and payment in cash will be made, as provided in the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Securities for conversion.
- 12 -
Securities in respect of which a Holder is exercising its right to require repurchase on a Fundamental Change Repurchase Date may be converted only if such Holder withdraws its election to
exercise such right in accordance with the terms of the Indenture.”
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(3)
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The ninth paragraph of the Form of Reverse of Security shall be amended and restated in full as follows:
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“Subject to certain limitations in the Indenture, at any time when Parent or the Company is not subject to
Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as amended, upon the request of a Holder of a Restricted Security, Parent and/or the Company, as applicable, will promptly furnish or cause to be furnished Rule 144A
Information (as defined below) to such Holder of Restricted Securities, or to a prospective purchaser of any such security designated by any such Holder, to the extent required to permit compliance by any such Holder with Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”). “Rule 144A Information” shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto).”
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(4)
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The eleventh paragraph of the Form of Reverse of Security shall be amended and restated in full as follows:
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“The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of Parent and the Company and the rights of the Holders of the Securities under the Indenture at any time by Parent, the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate
Principal Amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate Principal Amount of the Outstanding Securities, on behalf of the Holders of all the Securities, to
waive compliance by Parent or the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of any provision of or applicable to this Security
shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.”
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(5)
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The fourteenth paragraph of the Form of Reverse of Security shall be amended and restated in full as follows:
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“As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of Parent in Fremont, California, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security
- 13 -
Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate
Principal Amount, will be issued to the designated transferee or transferees.”
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(6)
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The first line of the Conversion Notice shall be amended and restated in full as follows:
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“If you want to convert this Security into Common Stock of Parent, check the box:
¨
”
(l) The second paragraph of Section 3.05(b) shall be amended and
restated in full as follows:
“If the Company or Parent fails to maintain a Security Registrar, Paying
Agent or Conversion Agent, the Trustee will act as such Security Registrar, Paying Agent or Conversion Agent and will be entitled to appropriate compensation therefor pursuant to Section 11.07 hereof. Parent, the Company or any of their
respective domestically incorporated wholly owned Subsidiaries may act as the Security Registrar, the Paying Agent or the Conversion Agent;
provided
,
however
, that upon any bankruptcy or reorganization proceedings relating to Parent,
the Company or any wholly owned Subsidiary thereof, the Trustee will serve as the Paying Agent.”
(m) Section 3.13
shall be amended and restated in full as follows:
“Section 3.13.
Persons Deemed Owners
. Prior to
due presentment of a Security for registration of transfer, Parent, the Company, the Trustee, the Security Registrar and any agent of Parent, the Company, the Trustee or the Security Registrar may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of the principal of such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither Parent, the Company, the Trustee, the
Security Registrar nor any agent of Parent, the Company, the Trustee or the Security Registrar shall be affected by notice to the contrary.”
(n) The second sentence of Section 4.03 shall be amended and restated in full as follows:
“The Company shall determine whether Holders are entitled to receive Contingent Interest, and if so, the Company, or Parent on behalf of the Company, shall provide written notice to the Bid
Solicitation Agent and issue a press release as required by Section 4.05.”
(o) Section 4.05 shall be amended
and restated in full as follows:
“Section 4.05.
Contingent Interest Notification
. Subject to
Section 4.02(b), by the third Business Day of a six-month Interest payment period for which
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Contingent Interest specified in Section 4.02(a)(i) will be paid, the Company, or Parent on behalf of the Company, will disseminate a press release through a recognized wire service
stating that Contingent Interest will be paid on the Securities and identifying such six-month Interest payment period as the six-month Interest payment period for which such Contingent Interest will be paid. By the third Business Day following the
designation by Parent’s Board of Directors of an extraordinary cash dividend or distribution as an Extraordinary Dividend pursuant to Section 4.02(a)(ii), the Company, or Parent on behalf of the Company, will disseminate a press release
through a recognized wire service stating that Contingent Interest will be paid on the Securities and identifying the Record Date for the payment of such Contingent Interest and the amount of such extraordinary cash dividend or distribution payable
with respect to each share of the Common Stock.”
(p) Section 5.06 shall be amended and restated in full as follows:
“Section 5.06.
Existence
. Subject to Article 10, each of Parent and the Company shall do or
cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises;
provided
,
however
, that neither Parent nor the Company shall be required to preserve any
such right or franchise if Parent shall determine that the preservation thereof is no longer desirable in the conduct of the business of Parent and its Subsidiaries, taken as a whole, and that the loss thereof is not disadvantageous in any material
respect to the Holders.”
(q) Section 5.07 shall be amended and restated in full as follows:
“Section 5.07.
Rule 144A Information Requirement
. Within the period prior to the expiration of the holding
period applicable to sales of Securities or any Common Stock issuable on conversion thereof under Rule 144 under the Securities Act (or any successor provision), each of Parent and the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to any Holder or beneficial Holder of such Securities or any such Common Stock, in each case which continue to be Restricted Securities, in
connection with any sale thereof and any prospective purchasers of Securities or such Common Stock from such Holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any
Holder or beneficial holder of the Securities or such Common Stock and it will take such further action as any Holder or beneficial holder of such Securities or such Common Stock may reasonably request, all to the extent required from time to time
to enable such Holder or beneficial holder to sell its Securities or Common Stock without registration under the Securities Act within the limitation of the exemption provided by Rule 144A. Upon the request of any Holder or any beneficial
holder of the Securities or such Common Stock, Parent or the Company, as applicable, will deliver to such Holder a written statement as to whether it has complied with such requirements.”
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(r) Section 5.10 shall be amended and restated in full as follows:
“Section 5.10.
Commission Filings and Reports
. Each of the Company and Parent covenants to comply with
Section 314(a) of the Trust Indenture Act as it relates to reports, information and documents that the Company or Parent, as applicable, may be required to file with the Trustee pursuant to such Section 314(a) and with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act or otherwise by the Exchange Act, the Trust Indenture Act or other rules and regulations of the Commission and to file such reports, information and documents with the Trustee within 45 days
after the same is required to be filed with the Commission (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act); provided that in each case the delivery of materials to the Trustee by electronic means or filing pursuant
to the Commission’s “EDGAR” system (or any successor electronic filing system) shall be deemed to constitute “filing” with the Trustee for purposes of this Section 5.10. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the
Company’s and Parent’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).”
(s) The final sentence of Section 5.14 shall be amended and restated in full as follows:
“A Holder may obtain the Issue Date, yield to maturity, comparable yield and the projected payment schedule by submitting a written request for such information to: Lam Research Corporation, 4650
Cushing Parkway, Fremont, CA 94538 Attention: Corporate Treasurer.”
(t) The first paragraph of Section 6.03 shall
be amended and restated in full as follows:
“Section 6.03.
Notice of Redemption
. At least 30
Scheduled Trading Days but not more than 50 Scheduled Trading Days before the applicable Redemption Date, the Company, or Parent on behalf of the Company, shall deliver notice of any redemption by first-class mail, postage prepaid, to the Trustee,
the Paying Agent and each Holder (or with respect to DTC, by electronic transmission) and disseminate a press release through a recognized wire service.”
(u) The first paragraph of Section 7.01(b) shall be amended and restated in full as follows:
“(b)
Fundamental Change Company Notice
. On or before the 20th Business Day immediately following the effective date of a Fundamental Change, the Company shall provide to all Holders of record
of the Securities and the Trustee and Paying Agent a notice (the “
Fundamental Change Company
- 16 -
Notice
”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. Such mailing shall be by first class mail.
Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information included therein once in a newspaper of general circulation in the City of New York or publish such information on
Parent’s website or through such other public medium as the Company may use at such time.”
(v) The final paragraph
of Section 8.01 shall be amended and restated in full as follows:
“The Conversion Rate on and after
the date of the First Supplemental Indenture (subject to adjustment as provided in this Indenture) is 28.4781 shares of Common Stock per $1,000 Principal Amount.”
(w) The final paragraph of Section 8.02(b) shall be amended and restated in full as follows:
“(b) In the event that the Daily Share Amount for any Trading Day during the Observation Period exceeds the Daily Share Cap, the Company will deliver cash in lieu of such excess shares based on the
Volume-Weighted Average Price of the Common Stock on such Trading Day, unless Parent has received shareholder approval as required by The NASDAQ Global Select Market (or the rules of the primary United States national or regional securities exchange
or market on which the Common Stock is then listed or admitted to trading) for issuance of such excess shares at the time of conversion.”
(x) Section 8.06 shall be amended and restated in full as follows:
“Section 8.06.
Adjustment in Connection with a Make-Whole Fundamental Change
. (a) If a Holder elects to convert Securities at any time following Parent’s or the Company’s
delivery of a notice of a Make-Whole Fundamental Change and until (i) if such Make-Whole Fundamental Change is a Fundamental Change, the Fundamental Change Repurchase Date for such Fundamental Change, and (ii) if such Make-Whole
Fundamental Change is not a Fundamental Change, the 35th Business Day immediately following the effective date of such Make-Whole Fundamental Change, the Conversion Rate for such Securities will be increased by an additional number of shares of
Common Stock (the “
Additional Shares
”) as described below.
(b) The number of Additional
Shares by which the Conversion Rate will be increased shall be determined by reference to the table attached as Exhibit B hereto, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “
Make-Whole
Effective Date
”) and the Stock Price;
provided
that if the actual Stock Price is between two Stock Price amounts in such table or the Make-Whole Effective Date is between two Make-Whole Effective Dates in such table, the number of
Additional Shares shall be
- 17 -
determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Effective
Dates, as applicable, based on a 365-day year; provided further that if (1) the Stock Price is greater than $75.56 per share of Common Stock (subject to adjustment in the same manner as set forth in Section 8.03), no Additional Shares will
be added to the Conversion Rate, and (2) the Stock Price is less than $29.26 per share (subject to adjustment in the same manner as set forth in Section 8.03), no Additional Shares will be added to the Conversion Rate. Notwithstanding the
foregoing, in no event will the Conversion Rate, as a result of a Make-Whole Fundamental Change, exceed 34.1738 shares per $1,000 Principal Amount (subject to adjustment in the same manner as set forth in Section 8.03).
(c) The Stock Prices set forth in the first row of the table in Exhibit B hereto shall be adjusted as of any date on which
the Conversion Rate of the Securities is adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate in effect immediately
prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set
forth in Section 8.03 (other than by operation of an adjustment to the Conversion Rate by adding Additional Shares).
(d) The table in Exhibit B hereto sets forth the hypothetical Stock Price and the number of Additional Shares to be received per $1,000 Principal Amount of Securities.
(e) Upon surrender of Securities for conversion in connection with a Make-Whole Fundamental Change, Parent or the Company
shall deliver an amount of cash and a number of shares of Common Stock pursuant to Section 8.02,
provided
,
however
, that if the Observation Period applicable to such Security ends on or prior to the effective date for such
Make-Whole Fundamental Change, Parent or the Company shall deliver the portion of the Settlement Amount corresponding to the Additional Shares, if any, on the third Business Day immediately following the effective date for such Make-Whole
Fundamental Change (for the avoidance of doubt, if an anticipated Make-Whole Fundamental Change does not occur, the Holder will not receive any portion of the Settlement Amount corresponding to such Additional Shares), and
provided further
that if the Holder converts its Securities after the effective date of such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is described in clause (2) of the definition of Fundamental Change (regardless of the proviso to
such clause) and the consideration for Common Stock in such Make-Whole Fundamental Change is comprised entirely of cash, the conversion obligation per $1,000 principal amount of Securities will be calculated based solely on the Stock Price for the
transaction and will be deemed to be an amount equal to the applicable Conversion Rate (including any adjustment as described in this
- 18 -
Section 8.06) multiplied by such Stock Price. In such event, the Company will pay the conversion obligation in cash on the third Business Day following the Conversion Date. Parent or the
Company, or Parent on behalf of the Company, will notify Holders of the effective date of any Make-Whole Fundamental Change and disseminate a press release through a recognized wire service announcing such effective date no later than five Business
Days after such effective date.
(f) Parent shall notify Holders of the Securities, the Trustee and the Paying
Agent of a Make-Whole Fundamental Change and the anticipated effective date of such Make-Whole Fundamental Change and disseminate a press release through a recognized wire service announcing the same no later than the 30th Scheduled Trading Day
immediately preceding the anticipated effective date of such Make-Whole Fundamental Change, or, if Parent does not have knowledge of such Make-Whole Fundamental Change or such anticipated effective date at such time, on the third Business Day
immediately following the date on which Parent receives notice, or otherwise becomes aware, of such Make-Whole Fundamental Change and such anticipated effective date, but in no event later than the actual effective date for such Make-Whole
Fundamental Change.”
(y) Section 9.01(g) shall be amended and restated in full as follows:
“(g) (A) failure by Parent, the Company or any of their Significant Subsidiaries to make any payment in an
amount in excess of $25 million by the end of any applicable grace period after maturity of indebtedness for money borrowed and continuance of such failure, or (B) the acceleration of indebtedness for borrowed money in an amount in excess of
$25 million because of a default by Parent, the Company or one of their Significant Subsidiaries with respect to such indebtedness without such indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled
for a period of 30 days;”
(z) Section 9.01(h) shall be amended and restated in full as follows:
“(h) the entry by a court having jurisdiction over Parent, the Company or their Significant Subsidiaries of
(i) a decree or order for relief in respect of Parent, the Company or any of their Significant Subsidiaries of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or
(ii) a decree or order adjudging Parent, the Company or any of their Significant Subsidiaries as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of
Parent, the Company or any of their Significant Subsidiaries under any applicable federal or state law or (iii) appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of Parent, the Company or
any of their Significant Subsidiaries, or of any substantial part of Parent’s, the Company’s or any of their Significant Subsidiaries’ property, or ordering the winding up or liquidation of Parent’s, the Company’s or any of
their Significant Subsidiaries’ affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or”
- 19 -
(aa) Section 9.01(i) shall be amended and restated in full as follows:
“(i) the commencement by Parent, the Company or any of their Significant Subsidiaries of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by Parent, the Company or any of their
Significant Subsidiaries to the entry of a decree or order for relief in respect of Parent, the Company or any of their Significant Subsidiaries in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against Parent, the Company or any of their Significant Subsidiaries, or the filing by Parent, the Company or any of their Significant
Subsidiaries of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by Parent, the Company or any of their Significant Subsidiaries to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of Parent, the Company or any of their Significant Subsidiaries or of any substantial part of Parent’s, the
Company’s or any of their Significant Subsidiaries’ property, or the making by Parent, the Company or any of their Significant Subsidiaries of an assignment for the benefit of creditors, or the admission by Parent, the Company or any of
their Significant Subsidiaries in writing of Parent’s, the Company’s or any of their Significant Subsidiaries’ inability to pay its debts generally as they become due, or the taking of corporate action by Parent, the Company or any of
their Significant Subsidiaries in furtherance of any such action.”
(bb) Section 9.02(a) shall be amended and
restated in full as follows:
“(a) If an Event of Default (other than those specified in
Sections 9.01(h) and 9.01(i) with respect to Parent, the Company or any of their respective Significant Subsidiaries) occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate Principal
Amount of the Outstanding Securities may declare the Principal Amount plus accrued and unpaid Interest on all the Outstanding Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such Principal Amount plus accrued and unpaid Interest shall become immediately due and payable.”
(cc) Section 9.02(b) shall be amended and restated in full as follows:
“(b) Notwithstanding the foregoing, in the case of an Event of Default specified in Section 9.01(h) or Section 9.01(i) with respect to Parent, the Company or any of their respective
Significant Subsidiaries, the Principal
- 20 -
Amount plus accrued and unpaid Interest on all Outstanding Securities will ipso facto become due and payable without any declaration or other act on the part of the Trustee or any Holder.”
(dd) Section 9.09 shall be amended by replacing all references to the phrase “the Company” with “Parent,
the Company”.
(ee) Section 10.01 shall be amended and restated in full as follows:
“Section 10.01.
Parent and Company May Consolidate, etc., Only on Certain Terms
.
(a) The Company shall not consolidate with or merge into any other Person or sell, convey, transfer or lease all or
substantially all of its properties and assets or all or substantially all of the Company’s and its Subsidiaries’ consolidated properties and assets, to any Person, unless:
(i) the resulting, surviving or transferee Person is a corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia;
(ii) the surviving entity or the other
entity to which such sale, conveyance, transfer or lease has been made (the
“
Surviving Entity
”), as applicable, expressly assumes by supplemental indenture, executed and delivered to the Trustee, all of the Company’s
obligations under the Securities and this Indenture; and
(iii) immediately after giving effect to such
transaction, no Default has occurred and is continuing.
(b) Parent shall not consolidate with or merge into
any other Person or sell, convey, transfer or lease all or substantially all of its properties and assets or all or substantially all of Parent’s and its Subsidiaries’ consolidated properties and assets, to any Person, unless:
(i) the resulting, surviving or transferee Person is a corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia;
(ii) the Surviving Entity expressly assumes
by supplemental indenture, executed and delivered to the Trustee, all of Parent’s obligations under the Securities and this Indenture;
(iii) immediately after giving effect to such transaction, no Default has occurred and is continuing; and
(iv) if upon the occurrence of any such consolidation, merger, sale, conveyance, transfer or lease the Securities would
- 21 -
become convertible into securities issued by an issuer other than the Surviving Entity, the issuer of the securities into which the Securities have become convertible shall fully and
unconditionally guarantee, on a senior basis, the Surviving Entity’s obligations under the Securities.”
(ff)
Section 10.02 shall be amended and restated in full as follows:
“Section 10.02.
Successor
Substituted
.
(a) Upon any consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company or of the Company and its Subsidiaries in accordance with Section 10.01(a), the Surviving Entity formed by such consolidation or
into which the Company is merged shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Surviving Entity had been named as the Company herein, and
thereafter, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
(b) Upon any consolidation of Parent with, or merger of Parent into, any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of Parent or of Parent
and its Subsidiaries in accordance with Section 10.01(b), the Surviving Entity formed by such consolidation or into which Parent is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, Parent under this Indenture with the same effect as if such Surviving Entity had been named as Parent herein, and thereafter, except in the case of a lease of all or substantially all of Parent’s properties
and assets, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.”
(gg) Section 14.01 shall be amended and restated in full as follows:
“Section 14.01.
Supplemental Indentures Without Consent of Holders
. Without the consent of any Holders, Parent and the Company, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(i) to cure any ambiguity or omission or correct any inconsistent or otherwise defective provision contained herein, so long as such action does not adversely affect the interests of the Holders;
(ii) to provide for the assumption by a successor corporation of Parent’s obligations under the
indenture or assumption by a successor corporation of the Company’s obligations under the indenture;
- 22 -
(iii) to add guarantees with respect to the Securities;
(iv) to provide security for the Securities;
(v) to add to the covenants of Parent or the Company for the benefit of the Holders, or to surrender any right or power
herein conferred upon Parent or the Company;
(vi) to make any change that does not adversely affect the
rights of any Holder;
(vii) to comply with any requirement of the Commission in connection with the
qualification of the Indenture under the Trust Indenture Act;
(viii) to appoint a successor Trustee with
respect to the indenture;
(ix) to comply with the rules of any applicable Depository; or
(x) to conform the provisions of this Indenture to the “Description of Notes” section contained in the final
offering memorandum dated May 5, 2011.”
(hh) The first paragraph of Section 14.02 shall be amended and
restated in full as follows:
“Section 14.02.
Supplemental Indentures With Consent of Holders
. With
the consent of the Holders of not less than a majority in Principal Amount of the Outstanding Securities, by Act of said Holders delivered to Parent, the Company and the Trustee, Parent and the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,”
- 23 -
(ii)
Exhibit B
to the Indenture shall be amended and restated in full as follows:
“
EXHIBIT B
Additional Shares to Be Delivered in Connection with Conversion
Upon a
Make-Whole Fundamental Change
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Stock Price
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Effective Date
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$29.26
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$31.11
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$35.56
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$40.00
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$44.44
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$48.89
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$53.33
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$57.78
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$62.22
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$66.67
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|
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$71.11
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$75.56
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May 10, 2011
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5.6957
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|
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5.5657
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|
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4.6467
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|
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3.9462
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|
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3.3966
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|
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2.9555
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2.5949
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|
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2.2955
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|
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2.0436
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1.8291
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1.6449
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1.4851
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May 15, 2012
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5.6957
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|
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5.5005
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|
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4.5806
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|
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3.8809
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|
|
3.3334
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|
|
2.8950
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|
|
|
2.5373
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|
|
|
2.2410
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|
|
|
1.9923
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|
|
|
1.7810
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|
|
1.5998
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|
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1.4429
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|
May 15, 2013
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|
|
5.6957
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|
|
|
5.4215
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|
|
|
4.4998
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|
|
|
3.8005
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|
|
|
3.2546
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|
|
2.8190
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|
|
|
2.4648
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|
|
|
2.1722
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|
|
|
1.9271
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|
|
|
1.7197
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|
|
|
1.5422
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|
|
|
1.3889
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|
|
May 15, 2014
|
|
|
5.6957
|
|
|
|
5.3321
|
|
|
|
4.4056
|
|
|
|
3.7049
|
|
|
|
3.1597
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|
|
|
2.7262
|
|
|
|
2.3752
|
|
|
|
2.0864
|
|
|
|
1.8456
|
|
|
|
1.6424
|
|
|
|
1.4693
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|
|
|
1.3203
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|
|
May 15, 2015
|
|
|
5.6957
|
|
|
|
5.2409
|
|
|
|
4.3059
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|
|
|
3.6006
|
|
|
|
3.0539
|
|
|
|
2.6211
|
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|
|
2.2724
|
|
|
|
1.9869
|
|
|
|
1.7502
|
|
|
|
1.5516
|
|
|
|
1.3832
|
|
|
|
1.2392
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|
|
May 15, 2016
|
|
|
5.6957
|
|
|
|
5.1388
|
|
|
|
4.1883
|
|
|
|
3.4748
|
|
|
|
2.9208
|
|
|
|
2.4864
|
|
|
|
2.1385
|
|
|
|
1.8559
|
|
|
|
1.6235
|
|
|
|
1.4301
|
|
|
|
1.2674
|
|
|
|
1.1295
|
|
|
May 15, 2017
|
|
|
5.6957
|
|
|
|
5.0444
|
|
|
|
4.0700
|
|
|
|
3.3373
|
|
|
|
2.7735
|
|
|
|
2.3324
|
|
|
|
1.9819
|
|
|
|
1.7000
|
|
|
|
1.4706
|
|
|
|
1.2818
|
|
|
|
1.1252
|
|
|
|
0.9939
|
|
|
May 15, 2018
|
|
|
5.6957
|
|
|
|
4.9811
|
|
|
|
3.9708
|
|
|
|
3.2085
|
|
|
|
2.6211
|
|
|
|
2.1635
|
|
|
|
1.8030
|
|
|
|
1.5164
|
|
|
|
1.2866
|
|
|
|
1.1007
|
|
|
|
0.9493
|
|
|
|
0.8250
|
|
|
May 15, 2019
|
|
|
5.6957
|
|
|
|
4.8786
|
|
|
|
3.8185
|
|
|
|
3.0098
|
|
|
|
2.3859
|
|
|
|
1.9019
|
|
|
|
1.5258
|
|
|
|
1.2330
|
|
|
|
1.0049
|
|
|
|
0.8268
|
|
|
|
0.6874
|
|
|
|
0.5776
|
|
|
May 15, 2020
|
|
|
5.6957
|
|
|
|
4.7975
|
|
|
|
3.6710
|
|
|
|
2.7847
|
|
|
|
2.0847
|
|
|
|
1.5388
|
|
|
|
1.1217
|
|
|
|
0.8109
|
|
|
|
0.5848
|
|
|
|
0.4238
|
|
|
|
0.3113
|
|
|
|
0.2338
|
|
|
May 15, 2021
|
|
|
5.6957
|
|
|
|
4.7664
|
|
|
|
3.6018
|
|
|
|
2.6263
|
|
|
|
1.7606
|
|
|
|
0.9846
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
May 15, 2026
|
|
|
5.6957
|
|
|
|
4.7621
|
|
|
|
3.5404
|
|
|
|
2.5370
|
|
|
|
1.6740
|
|
|
|
0.9237
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
May 15, 2031
|
|
|
5.6957
|
|
|
|
4.9584
|
|
|
|
3.6350
|
|
|
|
2.5741
|
|
|
|
1.6736
|
|
|
|
0.8958
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
May 15, 2036
|
|
|
5.6957
|
|
|
|
5.4646
|
|
|
|
3.8314
|
|
|
|
2.6216
|
|
|
|
1.6570
|
|
|
|
0.8595
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
May 15, 2041
|
|
|
5.6957
|
|
|
|
3.6647
|
|
|
|
0.0000
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0.0000
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0.0000
|
|
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0.0000
|
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0.0000
|
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0.0000
|
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0.0000
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0.0000
|
|
|
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0.0000
|
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0.0000
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|
”
Section 3.03.
Addition of Guarantee
. The following shall be added as a new Article 15 of the Indenture:
“ARTICLE 15
GUARANTEE
Section 15.01.
Guarantee
. Subject to the provisions of this Indenture and any supplemental indenture hereto,
Parent hereby irrevocably and unconditionally guarantees, on a senior basis (the “
Guarantee
”), to each Holder of a Security outstanding on the date of the First Supplemental Indenture or any Security thereafter authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, that: (1) the principal of and interest on the Securities shall be paid in full when due, whether at maturity, by acceleration or otherwise; (2) in case of any
extension of time in payment or renewal of any Securities or pursuant to any cure period provisions of the Securities or the Indenture, they shall be paid in full when due in accordance with the terms of the extension or renewal or cure period; and
(3) all other obligations of the Company under the Securities and the Indenture shall be paid in full when due, whether at maturity, by acceleration or otherwise. Failing payment when due by the Company of any amount so guaranteed, Parent shall
be obligated to pay the same. Parent agrees that this is a guarantee of payment and not a guarantee of collection.
Parent hereby agrees that its obligations with regard to the Guarantee shall be unconditional, irrespective of any circumstances which might otherwise constitute a legal or equitable defense of a
guarantor. In the event of a default in the payment of principal or interest the Trustee or any Holder of Securities may seek to enforce the Guarantee against Parent without first proceeding against the Company.
- 24 -
If any Holder or the Trustee is required by any court or otherwise to return
to either the Company or Parent, or any custodian acting in relation to either the Company or Parent, any amount paid by the Company or Parent to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. Parent agrees that it shall not be entitled to any right of subrogation in relation to the Holders or the Trustee in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
The Guarantee is a continuing guarantee and shall remain in full force and effect and shall be binding upon
Parent and its successors and assigns until full and final payment of all of principal and interest under the Securities and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof.
Notwithstanding any other provision of this Indenture or the Securities,
(i) where this Indenture or the Securities require any payment of cash or delivery of shares of Common Stock to be made by
the Company to any party (including, without limitation, in connection with any conversion, redemption, purchase or repurchase of the Securities pursuant to the terms of this Indenture), the obligation to make such payment or deliver such shares of
Common Stock shall be satisfied in full if made by Parent on behalf of the Company;
(ii) where this Indenture
or the Securities require that the Company repurchase all or a portion of the Securities, including where this Indenture or the Securities require the Company to repurchase the Securities if a Fundamental Change occurs, the obligation to make such
repurchase shall be satisfied in full if made by Parent, in lieu of the Company, subject to the terms and conditions of this Indenture; and
(iii) where this Indenture or the Securities permits the Company to redeem the Securities as a whole, or from time to time in part, at its option, such redemption may be made by Parent, in lieu of the
Company, subject to the terms and conditions of this Indenture.
In the event the Indenture is satisfied and
discharged as provided in Article 13 thereof, the Trustee will execute any documents reasonably required in order to evidence the release of Parent from its obligations under the Guarantee.”
[
Signature Page Follows
]
- 25 -
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the day and year first above written.
|
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NOVELLUS SYSTEMS, INC.,
as Issuer
|
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By:
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/s/ Richard S. Hill
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Name:
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Richard S. Hill
|
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Title:
|
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Chief Executive Officer
|
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LAM RESEARCH CORPORATION,
as Guarantor
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By:
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/s/ Ernest E. Maddock
|
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Name:
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Ernest E. Maddock
|
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Title:
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Senior Vice President and Chief Financial Officer
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The Bank of New York Mellon Trust Company, N.A., as Trustee
|
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By:
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/s/ Teresa Petta
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Name:
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Teresa Petta
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Title:
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Vice President
|
[
Signature Page to First Supplemental Indenture
]
Exhibit 10.1
FORM OF
LAM RESEARCH CORPORATION
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (“
Agreement
”) is made as of [
date]
by and between Lam Research Corporation, a Delaware corporation (the “
Company
”), and [
Print
Name]
(“
Indemnitee
”).
RECITALS
WHEREAS, the Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company;
WHEREAS, in order to induce Indemnitee to continue to provide services to the Company, the Company wishes to provide for the
indemnification of, and advancement of expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS, the Bylaws of
the Company (the “
Bylaws
”) require indemnification of the officers and directors of the Company, and Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the
“
DGCL
”);
WHEREAS, the Bylaws and the DGCL expressly provide that the indemnification provisions set forth
therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification;
WHEREAS, the Company and Indemnitee recognize the difficulty that companies sometimes experience obtaining appropriate levels of
liability insurance for the companies’ directors, officers, employees, agents and fiduciaries, the significant cost of such insurance and the limited scope of coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the significant amount of corporate litigation in general, subjecting directors,
officers, employees, agents and fiduciaries to expensive litigation risks at the same time as the cost, limited availability and scope of coverage of liability insurance continues, constituting substantial challenges for the Company;
WHEREAS, Indemnitee does not regard the protection currently provided by applicable law, the Company’s governing documents and
available insurance as adequate under the present circumstances, and the Indemnitee and certain other directors, officers, employees, agents and fiduciaries of the Company may not be willing to continue to serve in such capacities without additional
protection;
WHEREAS, the Board of Directors of the Company (the “
Board
”) has determined that the increased
difficulty in attracting and retaining highly qualified persons such as Indemnitee is detrimental to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty
of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided in the Bylaws and any
resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
Section 1.
Services to the Company
. Indemnitee agrees to serve as [a director][an officer] of the Company. Indemnitee may at
any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in
such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee. The foregoing notwithstanding, this Agreement shall continue in force after Indemnitee has
ceased to serve as [a director][an officer] of the Company.
Section 2.
Definitions
As used in this Agreement:
(a) A “
Company Change in Control
” shall be deemed to have occurred if (a) any “Person” (as that term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended) is or becomes (except in a transaction approved in advance by the Board) the beneficial owner (as defined in Rule 13d-3 under such Act), directly or indirectly, of securities of the Company representing 20% or more of the combined
voting power of the Company’s then outstanding securities, or (b) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board cease for any reason to constitute at least a majority
thereof unless the election of each director who was not a director at the beginning of the period was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period.
(b) “
Corporate Status
” describes the status of a person who is or was a director, officer, employee or agent of the
Company or of any other corporation, partnership or joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request of the Company.
(c) “
Enterprise
” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary.
-2-
(d) “
Expenses
” shall include all reasonable attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedes bond, or other appeal bond or its equivalent. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(e)
“
Independent Counsel
” means a law firm, or a partner (or, if applicable, member) of such a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or
(ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and
expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(f) “
Proceeding
” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation (whether designated by the investigative agency as a formal investigation or otherwise), inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or
otherwise and whether of a civil, criminal, administrative, regulatory or investigative nature, in which Indemnitee was, is or will be involved as a party or otherwise by reason of the fact of the Indemnitee’s Corporate Status, by reason of any
action taken by Indemnitee or of any action on his/her part while acting in his/her Corporate Status, or by reason of the fact that he/she is or was serving at the request of the Company as a director, officer, employee or agent of another
Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses can be provided under this Agreement;
provided
,
however
, that the term “Proceeding” shall not include any action, suit or arbitration initiated by Indemnitee to enforce Indemnitee’s rights under this Agreement.
Section 3.
Indemnity in Third-Party Proceedings
. The Company shall indemnify Indemnitee in accordance with the provisions of
this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3,
Indemnitee shall be indemnified against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his/her behalf in connection with such
-3-
Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he/she
reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal proceeding, had no reasonable cause to believe that his/her conduct was unlawful. Indemnitee shall not enter into any settlement in
connection with a Proceeding without the Company’s prior consent, which consent will not be unreasonably withheld.
Section 4.
Indemnity in Proceedings by or in the Right of the Company
. The Company shall indemnify Indemnitee in accordance
with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by him/her or on his/her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he/she reasonably
believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a
court to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery (the “
Delaware Court
”) or any court in which the Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the Delaware Court or such other court shall deem proper.
Section 5.
Indemnification for Expenses of a Party Who is Wholly or Partly Successful
. Notwithstanding any other provisions
of this Agreement but subject to Section 8, to the extent that Indemnitee is a party to or a participant in and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by him/her in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against (a) all Expenses actually and reasonably incurred by him/her or on his/her behalf in connection with each successfully resolved claim, issue or
matter and (b) any claim, issue or matter related to any such successfully resolved claim, issue or matter as provided in Section 21. For purposes of this Section and without limitation, the termination of any claim, issue or matter in
such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
Section 6.
Indemnification for Expenses of a Witness
. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his/her Corporate Status, a witness
in any Proceeding to which Indemnitee is not a party, he/she shall be indemnified against all Expenses actually and reasonably incurred by him/her or on his/her behalf in connection therewith.
Section 7.
Additional Indemnification
.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall indemnify Indemnitee to the fullest extent permitted by law if Indemnitee is a party to or is
-4-
threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to
procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with the Proceeding.
(b) For purposes of Section 7(a), the meaning of the phrase “to the fullest extent permitted by law” shall include, but
not be limited to:
(i) to the fullest extent permitted by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL or such provision thereof; and
(ii) to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify
its officers and directors.
Section 8.
Exclusions
. Notwithstanding any provision in this Agreement to the
contrary, the Company shall not be obligated under this Agreement to make any indemnity:
(a) for which payment has actually
been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision;
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within
the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law;
(c) for claims initiated or brought by Indemnitee, except (i) with respect to actions or proceedings brought to establish or enforce a right to receive advancement or indemnification under this
Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation (the “Charter”) or Bylaws now or hereafter in effect relating to indemnification, (ii) if the Board has approved the
initiation or bringing of such claim, or (iii) as otherwise required under Delaware law; or
(d) for which payment is
prohibited by applicable law.
Section 9.
Advances of Expenses
. The Company shall advance, to the extent not
prohibited by law, the reasonable Expenses incurred by Indemnitee in connection with any Proceeding. Such advancement shall be made within twenty (20) days after the receipt by the Company of a statement or statements requesting such advances
(which shall include invoices received by Indemnitee in connection with such Expenses—the invoices to afford sufficient detail to permit the Company to assess the reasonableness of the Expense advancement requested;
provided, however
,
that in the case of invoices in connection with legal services, references to legal work performed or to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law may be redacted from the invoice) from time to
time, whether prior to or after final disposition of any Proceeding. Indemnitee shall reasonably cooperate with the Company to manage Expenses, and such cooperation may be considered in
-5-
assessing the reasonableness of Expenses that are the subject of an advancement request;
provided,
however,
that nothing in this sentence shall be construed to undermine the purpose of this Agreement or to purport to modify the professional obligations of Indemnitee’s legal counsel. Advances shall be unsecured and interest free. Advances
shall be made without regard to Indemnitee’s ability to repay the expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Advances shall include any and all
reasonable expenses incurred pursuing an action to enforce this right of advancement. The Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement which shall constitute an undertaking providing that the
Indemnitee undertakes to the fullest extent required by law to repay the advance if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled
to be indemnified by the Company. This Section 9 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 8. The right to advances under this paragraph shall in all events continue until final
disposition of any Proceeding, including any appeal therein.
Section 10.
Procedure for Notification and Defense of
Claim
.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request
therefor to the Company.
(b) The Company will be entitled, but not obliged, to participate in the Proceeding at its own
expense.
Section 11.
Procedure Upon Application for Indemnification
.
(a) Upon written request by Indemnitee for indemnification pursuant to Section 10(a), a determination, if required by applicable
law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case by the Board, by a majority vote of the directors of the Company who are not parties to the Proceeding, and, if it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. In the event that (i) there are no disinterested directors serving on the Board, (ii) no determination of entitlement to
indemnification shall have been made pursuant to the preceding sentence within sixty (60) days after receipt by the Company of the request for indemnification, (iii) a determination is made pursuant to the preceding sentence that
Indemnitee is not entitled to indemnification under this Agreement, or (iv) there has been a Company Change in Control prior to the determination by the Board, Indemnitee shall be entitled to have his/her entitlement to indemnification to be
determined by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee and, if it is so determined by Independent Counsel that Indemnitee is entitled to indemnification, payment to Indemnitee shall be
made within ten (10) days after such determination.
(b) Indemnitee shall cooperate with the Board or Independent
Counsel, as applicable, making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to the Board or such counsel, as applicable, upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and
-6-
reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the Board or Independent Counsel, as applicable, shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company
hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event that Indemnitee exercises his/her right
to have his/her entitlement to indemnification determined by Independent Counsel as contemplated by Section 11(a), the Independent Counsel shall be selected by Indemnitee. The Company may, within ten (10) days after written notice of such
selection, deliver to the Indemnitee a written objection to such selection;
provided
,
however
, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as
Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is
without merit. If, within twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, and the final disposition of the Proceeding, including any appeal therein, no
Independent Counsel shall have been selected and not objected to, the Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company to the selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent
Counsel under Section 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct then prevailing).
(d) In the event that Independent
Counsel is selected to make the determination of Indemnitee’s entitlement to indemnification as contemplated by clause (ii) or (iii) of the second sentence of Section 11(a), neither the failure of the Board to have made a
determination that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Board that Indemnitee has not met such applicable standard of conduct, shall create a
presumption that Indemnitee has not met the applicable standard of conduct, and the Independent Counsel making such determination shall be bound by the presumptions set forth in Section 12.
(e) The rights set forth in this Section 11 with respect to Indemnitee selecting Independent Counsel to determine Indemnitee’s
entitlement to indemnification shall be in addition to, and not in lieu of, Indemnitee’s rights set forth in Section 13.
Section 12.
Presumptions and Effect of Certain Proceedings
.
(a) In
making a determination with respect to entitlement to indemnification hereunder, the Board or Independent Counsel, as applicable, making such determination shall
-7-
presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 10(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Independent Counsel of any determination contrary
to that presumption. Neither the failure of the Board or of Independent Counsel to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee
has met the applicable standard of conduct, nor an actual determination by the Board or by Independent Counsel that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee
has not met the applicable standard of conduct.
(b) The termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea of guilty,
nolo contendere
or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his/her conduct was unlawful.
(c) For purposes of any determination of good
faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Enterprise by an independent
certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of this Section 12(c) shall not be deemed to be exclusive
or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(d) The knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
Section 13.
Remedies of Indemnitee
.
(a) Subject to Section 13(e), in the event that (i) a determination is made pursuant to Section 11 of this Agreement that
Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 9 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made
pursuant to Section 11(a) of this Agreement within sixty (60) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 or the last sentence of
Section 11(b) of this Agreement within ten (10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification pursuant to Section 3, 4 or 7 of this Agreement is not made within ten
(10) days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication by a court of his/her entitlement to such indemnification or advancement.
-8-
Alternatively, Indemnitee, at his/her option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section 13(a);
provided
,
however
, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his/her rights under
Section 5 of this Agreement. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 11(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 13 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration
commenced pursuant to this Section 13, the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement, as the case may be.
(c) If a determination shall have been made pursuant to Section 11(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 13, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 13 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all expenses and, if requested by
Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action
brought by Indemnitee for indemnification or advancement from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advancement or insurance recovery, as the case may be, in the suit for which indemnification or advances is being sought.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of
the Proceeding, including any appeal therein.
Section 14.
Non-exclusivity; Survival of Rights; Insurance;
Subrogation
.
(a) The rights of indemnification and to receive advancement as provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal
of
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this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his/her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater
indemnification or advancement than would be afforded currently under the Charter, Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No
right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) The Company currently maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or
agents of the Company or of any other Enterprise, and to the extent liability insurance coverage of comparable scope can continue to be purchased at reasonable cost, the Company shall continue to maintain such coverage. Indemnitee shall be covered
by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
Where it is feasible to do so without materially impairing the Indemnitee’s ability to defend himself/herself in a Proceeding, Indemnitee agrees to cooperate with the Company to maximize the insurance coverage applicable to a particular
Proceeding, including without limitation by agreeing to be jointly represented by legal counsel with other directors, officers, employees, agents or fiduciaries of the Company who are also involved with the Proceeding, or by agreeing to legal
representation by a legal services provider acceptable to the insurance carrier(s) that underwrite the liability insurance coverage purchased by the Company;
provided, however,
that nothing in this sentence shall be construed to pressure an
Indemnitee’s or his/her legal counsel to violate any applicable rule of professional responsibility applicable to legal counsel’s provision of legal services.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required
and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
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(e) The Company’s obligation to provide indemnification or advancement hereunder to
Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement from such other
Enterprise. Where Indemnitee has indemnification rights relating to a Proceeding through both the Company and any other Enterprise involved with the Proceeding and the other Enterprise disputes primary responsibility to advance Expenses to or
indemnify Indemnitee, the indemnification rights under this Agreement shall apply;
provided, however,
that the Company’s agreement to protect Indemnitee will be without prejudice to any rights the Company may have to seek from such other
Enterprise reimbursement of any expenses or other amounts paid on behalf of Indemnitee.
Section 15.
Duration of
Agreement
. This Agreement shall continue until and terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a [director][ Section 16 officer] of the Company or (b) one
(1) year after the final termination of any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights of indemnification or advancement hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 13 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his/her heirs, executors and administrators. The Company shall
require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance
satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
Section 16.
Severability
. If any provision or provisions of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or
provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
Section 17.
Enforcement
.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as [a director][an officer] of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as [a director][an officer] of the Company.
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(b) This Agreement constitutes the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof;
provided
,
however
, that this Agreement is a
supplement to and in furtherance of the Charter of the Company, the Bylaws of the Company and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 18.
Modification and Waiver
. No supplement, modification or amendment, or waiver of any provision, of this Agreement
shall be binding unless executed in writing by the parties thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a
continuing waiver.
Section 19.
Notice by Indemnitee
. Indemnitee agrees promptly to notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement covered hereunder. The failure of Indemnitee to
so notify the Company shall not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.
Section 20.
Notices
. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed,
(c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed or (d) sent by facsimile transmission, with receipt of oral confirmation that such transmission
has been received:
(a) If to Indemnitee, at such address as Indemnitee shall provide to the Company.
(b) If to the Company to:
Lam Research Corporation
4650 Cushing Parkway
Fremont, California 94538
Attn: Chief Legal Officer
or to any other address as may have been furnished to Indemnitee by
the Company.
Section 21.
Contribution
. To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties,
excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the
circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the
Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
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Section 22.
Applicable Law and Consent to Jurisdiction
. This Agreement and the
legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee
pursuant to Section 13(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the
Delaware Court, and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding
arising out of or in connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of process in the State of Delaware, The Corporation Trust Company, Wilmington, Delaware as its agent in the State
of Delaware as such party’s agent for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon such party personally within the State of Delaware,
(iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been
brought in an improper or inconvenient forum.
Section 23.
Identical Counterparts
. This Agreement may be executed
in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought
needs to be produced to evidence the existence of this Agreement.
Section 24.
Miscellaneous
. The headings of the
paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and
year first above written.
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LAM RESEARCH CORPORATION
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By:
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Print Name:
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Print Title:
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Indemnitee:
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[Print Name]
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