EXHIBIT 4.5
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SPEEDFAM-IPEC CORPORATION
f/k/a INTEGRATED PROCESS EQUIPMENT CORP., Company
SPEEDFAM-IPEC, INC., Original Guarantor
NOVELLUS SYSTEMS, INC., Novellus
And
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.,
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of December 6, 2002
To
INDENTURE
Dated as of September 15, 1997
As First Supplemented April 6, 1999
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Relating to
Integrated Process Equipment Corp.
6 -1/4% Convertible Subordinated Notes due 2004
SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE, dated as of the 6th day of December,
2002, by and among SPEEDFAM-IPEC CORPORATION f/k/a INTEGRATED PROCESS EQUIPMENT
CORP., a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), SPEEDFAM-IPEC, INC., a corporation duly organized and
existing under the laws of the State of Illinois and the Company's parent
company (the "Original Guarantor"), NOVELLUS SYSTEMS, INC., a corporation duly
organized and existing under the laws of the State of California ("Novellus"),
and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., a national banking
association organized under the laws of the United States of America, and
trustee under the Indenture (as hereinafter defined) (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore entered into that
certain Indenture, dated as of September 15, 1997, providing for the issuance of
6 -1/4% Convertible Subordinated Debentures due 2004 (the "Notes"), in the
aggregate principal amount not to exceed $115,000,000, as supplemented and
amended by that certain First Supplemental Indenture, dated as of April 6, 1999
(the "First Supplemental Indenture") by and among the Company, the Original
Guarantor, and the Trustee (such Indenture, as further supplemented or amended
in accordance with its terms, herein the "Indenture");
WHEREAS, the Original Guarantor, NHL Acquisition-Sub, Inc., a Delaware
corporation ("Merger Sub"), and Novellus have entered into an Agreement and Plan
of Reorganization, dated as of August 11, 2002 (the "Merger Agreement"),
pursuant to which Merger Sub will merge with and into the Original Guarantor
(the "Merger"), with the Original Guarantor then becoming a direct wholly-owned
subsidiary of Novellus and the Company becoming an indirect wholly-owned
subsidiary of Novellus;
WHEREAS, pursuant to the Merger Agreement, each share of the Original
Guarantor's common stock outstanding immediately prior to the effective time of
the Merger (the "Effective Time") will be converted into the right to receive
0.1818 of a share of Common Stock of Novellus;
WHEREAS, Section 15.6 of the Indenture provides that, "If any of the
following events occur, namely (i) any reclassification or change of the
outstanding shares of Common Stock (other than a subdivision or combination to
which Section 15.5(c) applies), (ii) any consolidation, merger or combination of
the Guarantor with another corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, or (iii)
any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, then the Company or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of execution
of such supplemental indenture)
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providing that such Note shall be convertible into the kind and amount of shares
of stock and other securities or property or assets (including cash) receivable
upon such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of shares of Common Stock issuable upon
conversion of such Notes (assuming, for such purposes, a sufficient number of
authorized shares of Common Stock available to convert all such Notes)
immediately prior to such reclassification, change, consolidation, merger,
combination, sale or conveyance assuming such holder of Common Stock did not
exercise his rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or conveyance is not the same for each share of Common
Stock in respect of which such rights or election shall not have been exercised
("nonelecting share")), then for purposes of this Section 15.6 the kind and
amount of securities, cash or other property receivable upon such consolidation,
merger, statutory exchange, sale or conveyance for each non-electing share shall
be deemed to be the kind and amount so receivable or share by a plurality if the
non-electing shares. Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article;"
WHEREAS, Section 12.1 of the Indenture permits the Company to merge with
another corporation provided certain conditions are satisfied;
WHEREAS, pursuant to the First Supplemental Indenture, the Original
Guarantor guaranteed, on a subordinated basis as set forth more fully therein,
the payment of the principal of, premium, if any, and interest on the Notes in
order to preserve the exemption available under Section 3(a)(9) of the
Securities Act for the conversion of Notes into Common Stock;
WHEREAS, subject to the closing of the Merger, Novellus is willing to
assume the obligations of the Original Guarantor under the Indenture and to
guarantee, on a subordinated basis as set forth more fully herein, the payment
of the principal of, premium, if any, and interest on the Notes in order to
preserve the exemption available under Section 3(a)(9) of the Securities Act for
the conversion of Notes into Common Stock;
WHEREAS, Section 11.1 of the Indenture authorizes the Company, with the
consent of the Trustee, to supplement or amend the Indenture to comply with
Section 15.6 hereof and to correct or supplement provisions of or make other
provisions with respect to matters or questions arising under the Indenture that
do not adversely affect the rights of any Noteholder;
WHEREAS, the Company, the Original Guarantor and Novellus desire to
execute a supplemental indenture that complies with Section 11.1 of the
Indenture;
WHEREAS, all acts and things necessary to make this Second Supplemental
Indenture a valid and binding agreement for the purposes and objects herein
expressed have been duly done and performed, and the execution of this Second
Supplemental Indenture have been in all respects, duly authorized;
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WHEREAS, the foregoing recitals are made as representations or statements
of fact by the Company, the Original Guarantor, or Novellus, as applicable, and
not by the Trustee; and
WHEREAS, the Trustee is authorized by Section 11.1 of the Indenture to
execute this Second Supplemental Indenture without the consent of the holders of
the Notes;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Original Guarantor, and Novellus hereby covenant and agree with the
Trustee, for the equal and proportionate benefit of the respective holders from
time to time of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 The terms defined in this Section 1.1 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Second Supplemental Indenture shall have the respective
meanings specified in this Section 1.1. All other terms used in this Second
Supplemental Indenture which are defined in the Indenture, the Trust Indenture
Act, or which are by reference therein defined in the Securities Act, (except as
herein otherwise expressly provided or unless the context otherwise requires)
shall have the meanings assigned to such terms in said Indenture, the Trust
Indenture Act, and in said Securities Act, as in force at the date of the
execution of this Second Supplemental Indenture. The words "herein," "hereof'
and "hereunder," and words of similar import, refer to this Second Supplemental
Indenture as a whole and not to any particular Article, Section or other
Subsection. The terms defined in this Article include the plural as well as the
singular.
(a) The definition of "COMMON STOCK" contained in Section 1.1
of the Indenture is hereby amended by deleting the reference to the "First
Supplemental Indenture" and inserting in lieu thereof the words "Second
Supplemental Indenture."
(b) The definition of "DESIGNATED GUARANTOR SENIOR
INDEBTEDNESS" contained in Section 1.1 of the Indenture is hereby deleted in its
entirety.
(c) The definition of "DESIGNATED SENIOR INDEBTEDNESS"
contained in Section 1.1 of the Indenture is hereby amended by deleting the
reference to "Loan Agreement" found therein.
(d) The definition of "GUARANTOR LOAN AGREEMENT" contained in
Section 1.1 of the Indenture is hereby deleted in its entirety.
(e) The definition of "LOAN AGREEMENT" contained in Section
1.1 of the Indenture is hereby deleted in its entirety.
(f) The definitions of the following words contained in
Section 1.1 of the Indenture are hereby amended by deleting them in their
entirety and inserting in lieu thereof the following respective definitions:
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REFERENCE MARKET PRICE: The term "Reference Market Price" shall
initially mean $154.95, and in the event of any adjustment to the
Conversion Price pursuant to Sections 15.5(a), (b), (c), (d), (e), (f) or
(g), the Reference Market Price shall also be adjusted so that the ratio
of the Reference Market Price to the Conversion Price after giving effect
to any such adjustment shall always be the same as the ratio of $154.95 to
the Conversion Price specified in the form of Note herein above set forth
(without regard to any adjustment thereto).
GUARANTOR: The term "Guarantor" shall mean Novellus
Systems, Inc., a California corporation, and shall include
its successors and assigns.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.1 Section 2.8 of the Indenture is hereby amended by deleting
such section in its entirety and inserting in lieu thereof the following:
SECTION 2.8 CANCELLATION OF NOTES PAID, ETC. All Notes surrendered
for the purpose of payment, redemption, conversion, exchange or
registration of transfer, shall, if surrendered to the Company, the
Guarantor, or any paying agent or any Note registrar or any conversion
agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee, shall be promptly canceled by it, and no Notes
shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture. The Trustee shall return such canceled
Notes to the Guarantor. If the Company or the Guarantor shall acquire any
of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by the Notes unless and until
the same are delivered to the Trustee for cancellation.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.1. Section 5.8 of the Indenture is hereby amended by deleting
all references therein to "the Company" and inserting in lieu thereof "the
Guarantor."
ARTICLE IV
SUBORDINATED GUARANTY OF NOTES
SECTION 4.1 Section 17.3(ii) of the Indenture is hereby amended by
deleting such section in its entirety.
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SECTION 4.2 Section 17.3 of the Indenture is hereby amended by deleting
the fourth paragraph beginning "If the Trustee receives any Payment Blockage
Notice . . ." therein.
SECTION 4.3 Section 17.3 of the Indenture is hereby amended by deleting
the fifth paragraph beginning "The Guarantor may and shall resume payments . .
.." therein and inserting in lieu thereof the following:
The Guarantor may and shall resume payments on and distributions in
respect of the Notes on the date upon which any such Payment Default is
cured or waived or ceases to exist unless this Article XVII otherwise
prohibits the payment or distribution at the time of such payment or
distribution.
SECTION 4.4 Section 17.11 of the Indenture is hereby amended by deleting
the parenthetical "(including, without limitation, Designated Guarantor Senior
Indebtedness)" therein.
ARTICLE V
CERTAIN COVENANTS OF NOVELLUS
SECTION 5.1 Novellus hereby covenants and warrants that (a) immediately
after the Effective Time, no condition or event shall exist which constitutes or
would, after notice or lapse of time or both, constitute a Default or an Event
of Default (both as defined in the Indenture), (b) it has complied, or has
caused the Company to comply, and will comply, or will cause the Company to
comply, with all applicable provisions of Article XV of the Indenture and (c) it
has been authorized by its Board of Directors, pursuant to Section 11.1 of the
Indenture, to execute this Second Supplemental Indenture.
ARTICLE VI
CONVERSION OF NOTES
SECTION 6.1 As a result of the Merger and without any action on the part
of the holder of any Note, on and after the Effective Time each $1,000 principal
amount of Notes shall be convertible into shares of Common Stock of Novellus, in
accordance with the provisions of Article XV of the Indenture, at an initial
Conversion Price per share of $302.15, such Conversion Price being subject to
subsequent adjustment after the Effective Time in accordance with the provisions
of Article XV of the Indenture.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 This Second Supplemental Indenture shall become effective at
the Effective Time and shall be automatically null and void if and in the event
that the Merger shall not become effective on or prior to December 16, 2002.
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SECTION 7.2 This Second Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of laws thereof.
SECTION 7.3 Nothing in this Second Supplemental Indenture, expressed or
implied, shall give or be construed to give any person, firm or corporation,
other than the parties hereto and their successors hereunder, and the holders of
the Notes or the holders of Guarantor Senior Indebtedness, any legal or
equitable right, remedy or claim under or in respect to this Second Supplemental
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and their successors hereunder and the holders of the Notes.
SECTION 7.4 The Trustee accepts the amendment of the Indenture effected by
this Second Supplemental Indenture and agrees to execute the trust created by
the Indenture as hereby amended, but only upon the terms and conditions set
forth in the Indenture, including the terms and provisions defining and limiting
the liabilities and responsibilities of the Trustee, which terms and provisions
shall in like manner define and limit its liabilities and responsibilities in
the performance of the trust created by the Indenture as hereby amended.
SECTION 7.5 After the Effective Time, any Notes authenticated and
delivered in substitution for, or in lieu of, Notes then outstanding and all
Notes presented or delivered to the Trustee on and after the Effective Time for
such purpose shall be either restated to give the effect to the Second
Supplemental Indenture or, in lieu thereof, stamped with a notation
substantially as follows:
The principal amount of this Note has become convertible into shares
of the Common Stock, without par value per share, of Novellus Systems,
Inc., at an initial Conversion Price per share of $302.15, such Conversion
Price being subject to certain adjustments as set forth in the Indenture.
Reference herein to "Common Stock of the Company" or the "Company's Common
Stock" shall be deemed to be to the Common Stock of Novellus Systems, Inc.
The payment of principal of, premium, if any, and interest on the Notes
has been guaranteed by Novellus Systems, Inc. on a subordinated basis as
set forth in the Indenture. The Indenture, dated as of September 15, 1997,
referred to in this Note has been amended by a First Supplemental
Indenture, dated as of April 6, 1999, and a Second Supplemental Indenture,
dated as of December 6, 2002, to provide for such convertibility and
guarantee. Reference is hereby made to said First Supplemental Indenture
and said Second Supplemental Indenture, copies of which are on file with
SpeedFam-IPEC Corporation f/k/a Integrated Process Equipment Corp. and
Novellus Systems, Inc., for a statement of the amendments therein made.
Nothing contained in this Second Supplemental Indenture shall require the
holder of any Note to submit or exchange such Note prior to the Effective Time
in order to obtain the benefits of the Guaranty or any other provisions
hereunder.
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The Company agrees to provide the Trustee with a stamp or means of
reproducing the above legend on the Notes without materially obscuring the text
of the Notes.
Anything herein contained to the contrary notwithstanding, the Trustee
shall not at any time be under any responsibility to acquire or cause any Note
now or hereafter outstanding to be presented or delivered to it for any purpose
provided for in this Section 6.5.
SECTION 7.6 Except as expressly supplemented by this Second Supplemental
Indenture, the Indenture, the Notes issued thereunder and the charge and
obligation created thereby are in all respects ratified and confirmed and all of
the rights, remedies, terms, conditions, covenants and agreements of the
Indenture and the Notes issued thereunder shall remain in full force and effect.
SECTION 7.7 If any provision of this Second Supplemental Indenture limits,
qualifies or conflicts with (a) another provision of this Second Supplemental
Indenture, or (b) any provision of the Indenture, which is required to be
included by any of the provisions of Section 310 to 317, inclusive, of the Trust
Indenture Act, such required provision shall control.
SECTION 7.8 The recitals contained in this Second Supplemental Indenture
shall be taken as statements of the Company, the Original Guarantor, or
Novellus, as applicable, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
SECTION 7.9 This Second Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
SPEEDFAM-IPEC CORPORATION
f/k/a INTEGRATED PROCESS EQUIPMENT CORP.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: President and CEO
SPEEDFAM-IPEC, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: President and CEO
NOVELLUS SYSTEMS, INC.
By: /s/ Xxxxx X. Royal
Name: Xxxxx X. Royal
Title: Vice President and Chief Financial
Officer
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A., as Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
