UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 25, 2017
MACOM Connectivity Solutions, LLC (successor in interest to Applied Micro Circuits Corporation)
(Exact name of registrant as specified in its charter)
DELAWARE
(State or Other Jurisdiction
of Incorporation)
| 000-23193 | 94-2586591 | |
| (Commission File Number) |
(I.R.S. Employer Identification No.) |
4555 Great America Parkway, 6th Floor
Santa Clara, California 95054
(Address of Principal Executive Offices and Zip Code)
(408) 542-8600
(Registrant’s Telephone Number, Including Area Code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.01. Completion of Acquisition or Disposition of Assets.
As previously disclosed, on November 21, 2016, Applied Micro Circuits Corporation, a Delaware corporation (including its successor in interest from and after completion of the Mergers, “AMCC”), entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”) with MACOM Technology Solutions Holdings, Inc., a Delaware corporation (“MACOM”), Montana Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of MACOM (“Purchaser”), and MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC), a Delaware limited liability company and a wholly owned subsidiary of MACOM (“LLC Sub”).
Pursuant to the Merger Agreement, Purchaser commenced an exchange offer (the “Offer”) to purchase all of the outstanding shares of common stock, par value $0.01 per share, of AMCC (the “AMCC Stock”), with each share of AMCC Stock accepted by Purchaser in the Offer to be exchanged for the right to receive (i) $3.25 in cash and (ii) 0.1089 shares of MACOM common stock, par value $0.001 per share (“MACOM Stock”), plus cash in lieu of any fractional shares of MACOM Stock, in each case, without interest ((i) and (ii) together, the “Transaction Consideration”) upon the terms and subject to the conditions set forth in the Prospectus/Offer dated December 21, 2016 (and any amendments and supplements thereto), and the related Letter of Transmittal.
The Offer expired at 12:00 a.m. midnight, Eastern Time, at the end of January 25, 2017 (the “Expiration Time”). The depositary and exchange agent for the Offer advised that, as of the Expiration Time, a total of 64,466,846 shares of AMCC Stock had been validly tendered and not properly withdrawn pursuant to the Offer, which tendered shares of AMCC Stock represented approximately 73.6% of the outstanding shares of AMCC Stock as of the Expiration Time. Purchaser accepted for exchange all such shares of AMCC Stock validly tendered and not properly withdrawn pursuant to the Offer.
On January 26, 2017, pursuant to the terms and conditions of the Merger Agreement, MACOM completed its acquisition of AMCC when (i) Purchaser merged with and into AMCC (the “First Merger”), with AMCC surviving the First Merger and (ii) immediately following the First Merger, AMCC, as the surviving company of the First Merger, merged with and into LLC Sub (the “Second Merger” and together with the First Merger, the “Mergers”), with LLC Sub surviving the Second Merger as a wholly owned subsidiary of MACOM (the “Surviving Company”). AMCC and MACOM intended, for U.S. federal income tax purposes, for the Offer and the Mergers, taken together, to qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended.
The First Merger was governed by Section 251(h) of the Delaware General Corporation Law (the “DGCL”), with no stockholder vote required to consummate the First Merger. At the effective time of the First Merger (the “Effective Time”), each share of AMCC Stock (other than shares, if any, of AMCC Stock owned by AMCC, MACOM, Purchaser, LLC Sub or other subsidiaries of MACOM, which were canceled and ceased to exist) was converted into the right to receive the Transaction Consideration.
The cash portion of the Transaction Consideration and related costs and expenses were funded from cash on hand.
The foregoing descriptions of the Offer, the Mergers and the Merger Agreement in this Item 2.01 do not purport to be complete and are subject to and qualified in their entirety by reference to the full text of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to Applied Micro Circuits Corporation’s Current Report on Form 8-K, filed with the Securities and Exchange Commission (the “SEC”) on November 21, 2016 and incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
After the market closed on January 26, 2017, as a result of the transactions described in Item 2.01 of this Current Report on Form 8-K, which are incorporated by reference herein, AMCC (i) notified Nasdaq of the consummation of the First Merger and (ii) requested that Nasdaq file with the Securities and Exchange Commission (the “SEC”) a Form 25 Notification of Removal from Listing and/or Registration to delist and deregister the shares of AMCC Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The shares of AMCC Stock will have ceased trading on the NASDAQ immediately prior to opening of trading on January 27, 2017. AMCC also intends to file with the SEC a Form 15 requesting the deregistration of the shares of AMCC Stock and the suspension of reporting obligations under Sections 13 and 15(d) of the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders.
As a result of the Mergers, each share of AMCC Stock that was issued and outstanding immediately prior to the Effective Time (other than shares of AMCC Stock owned by AMCC, MACOM, Purchaser, LLC Sub or other subsidiaries of MACOM, which were canceled and ceased to exist) was converted, at the Effective Time, into the right to receive the Transaction Consideration. Accordingly, at the Effective Time, the holders of such shares of AMCC Stock ceased to have any rights as stockholders of AMCC, other than the right to receive the Transaction Consideration.
The information set forth in Items 2.01, 3.01, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01. Changes in Control of Registrant.
As a result of Purchaser’s acceptance for payment of all shares of AMCC Stock that were validly tendered and not properly withdrawn in accordance with the terms of the Offer, a change in control of AMCC occurred. Upon the Effective Time, AMCC became a wholly owned subsidiary of MACOM and immediately thereafter, merged out of existence, with the LLC Sub surviving the Second Merger as a wholly owned subsidiary of MACOM. The information set forth in Item 2.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In accordance with the Merger Agreement, as of the Effective Time, each of Cesar Cesaratto, Dr. Paramesh Gopi, Dr. Paul R. Gray, Theodore A. (Fred) Shlapak, Dr. Robert F. Sproull, Duston M. Williams and Christopher F. Zepf (the “Former Directors”) ceased serving as members of the board of directors of AMCC and, in connection therewith, the Former Directors also ceased serving on any committees of which such Former Directors were members.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Upon the consummation of the Mergers, (i) the certificate of formation of LLC Sub, as amended, in effect immediately prior to the Effective Time became the certificate of formation of the Surviving Company and (ii) the limited liability company agreement of LLC Sub, as amended, in effect immediately prior to the Effective Time became the limited liability company agreement of the Surviving Company, each in accordance with the terms of the Merger Agreement.
Copies of the certificate of formation of the Surviving Company, the amendment thereto, the limited liability company agreement of the Surviving Company and the amendment thereto are attached as Exhibit 3.1, Exhibit 3.2, Exhibit 3.3 and Exhibit 3.4 respectively, to this Current Report on Form 8-K and are incorporated by reference into this Item 5.03.
Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits |
| Exhibit |
Description | |
| 2.1 | Agreement and Plan of Merger and Reorganization, dated as of November 21, 2016, by and among MACOM Technology Solutions Holdings, Inc., Montana Merger Sub I, Inc., MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC) and Applied Micro Circuits Corporation (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Applied Micro Circuits Corporation on November 21, 2016)* | |
| 3.1 | Certificate of Formation of MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC) | |
| 3.2 | Certificate of Amendment of Certification of Formation of MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC), dated December 28, 2016 | |
| 3.3 | Limited Liability Company Agreement of MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC) | |
| 3.4 | Amendment No. 1 to the Limited Liability Company Agreement of MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC), dated December 28, 2016 | |
| * | Schedules to the Agreement and Plan of Merger and Reorganization have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant will furnish copies of any such schedules to the U.S. Securities and Exchange Commission upon request. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| MACOM CONNECTIVITY SOLUTIONS, LLC (as successor in interest to APPLIED MICRO CIRCUITS CORPORATION) | ||||||
| Date: January 26, 2017 | By: | /s/ John Croteau | ||||
| Name: John Croteau | ||||||
| Title: President and Chief Executive Officer | ||||||
EXHIBITS
| Exhibit |
Description | |
| 2.1 | Agreement and Plan of Merger and Reorganization, dated as of November 21, 2016, by and among MACOM Technology Solutions Holdings, Inc., Montana Merger Sub I, Inc., MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC) and Applied Micro Circuits Corporation (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Applied Micro Circuits Corporation on November 21, 2016)* | |
| 3.1 | Certificate of Formation of MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC) | |
| 3.2 | Certificate of Amendment of Certification of Formation of MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC), dated December 28, 2016 | |
| 3.3 | Limited Liability Company Agreement of MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC) | |
| 3.4 | Amendment No. 1 to the Limited Liability Company Agreement of MACOM Connectivity Solutions, LLC (f/k/a Montana Merger Sub II, LLC), dated December 28, 2016 | |
| * | Schedules to the Agreement and Plan of Merger and Reorganization have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant will furnish copies of any such schedules to the U.S. Securities and Exchange Commission upon request. |
Exhibit 3.1
STATE of DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
OF
MONTANA MERGER SUB II, LLC
Pursuant to Title 6, Chapter 18, Sections 201 and 204
of the Delaware Code
This Certificate of Formation of Montana Merger Sub II, LLC is being duly executed and filed by William J. Valle, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq.), as amended from time to time.
(1) The name of the limited liability company formed hereby is Montana Merger Sub II, LLC.
(2) The address of the registered office of the limited liability company in the State of Delaware is care of:
Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, DE 19808
(3) The name and address of the registered agent of the limited liability company for service of process on the limited liability company in the State of Delaware is:
Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, DE 19808
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the 17th day of November, 2016.
| /s/ William J. Valle |
| William J. Valle |
| Authorized Person |
Exhibit 3.2
STATE of DELAWARE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
MONTANA MERGER SUB II, LLC
December 28, 2016
The undersigned, desiring to amend the Certificate of Formation of Montana Merger Sub II, LLC (the “Company”) pursuant to the provisions of Section 18-202 of the Limited Liability Company Act of the State of Delaware, does hereby certify as follows:
| FIRST: | The name of the Company is Montana Merger Sub II, LLC. | |||
| SECOND: | The Company was formed upon the filing of its Certificate of Formation with the Delaware Secretary of State on November 17, 2016. | |||
| THIRD: | Article 1 of the Certificate of Formation of the Company is hereby amended and restated in its entirety as follows: | |||
| “(1) The name of the limited liability company is MACOM Connectivity Solutions, LLC.” | ||||
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of the Certificate of Formation as of the date first written above.
| MACOM Technology Solutions Holdings, Inc., the sole member of the Company | ||
| By: | /s/ John Croteau | |
| Name: | John Croteau | |
| Title: | President and Chief Executive Officer | |
EXHIBIT 3.3
LIMITED LIABILITY COMPANY AGREEMENT
OF
MONTANA MERGER SUB II, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Montana Merger Sub II, LLC (the “Company”) is entered into as of November 17, 2016, by MACOM Technology Solutions Holdings, Inc., a Delaware corporation and the sole member of the Company (the “Member”).
The Member, in order to form a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act, as amended from time to time (6 Del.C. §18-101, et seq.) (the “Act”), hereby agrees as follows:
| 1. | Name and Address. The name of the limited liability company is Montana Merger Sub II, LLC. The principal office of the Company shall be at any location as approved by Board of Managers (as defined below). |
| 2. | Purpose. The purpose of the Company is, directly or indirectly, through subsidiaries or affiliates, to engage in any lawful act or activity for which limited liability companies may be formed under the Act and to engage in any and all activities necessary, advisable or incidental to the foregoing. |
| 3. | Registered Office. The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware 19808. |
| 4. | Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware 19808. |
| 5. | Certificate. William J. Valle is hereby designated as an “authorized person” within the meaning of the Act to execute, deliver and file the certificate of formation of the Company (the “Certificate”). Upon the filing of the Certificate, his powers as an “authorized person” cease, and the Member thereupon becomes the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member shall execute, deliver and file any amendments or restatements of the Certificate or any certificate of cancellation of the Certificate. |
| 6. | Member. The name and the mailing address of the Member is as follows: |
MACOM Technology Solutions Holdings, Inc.
100 Chelmsford Street
Lowell, Massachusetts 01851
| 7. | Powers. The Company shall have the power and authority to do any and all acts necessary or convenient to or in furtherance of the purposes described in Section 2 hereof, including all power and authority, statutory or otherwise, possessed by, or which may be conferred upon, limited liability companies under the laws of the State of Delaware. Notwithstanding any other provision of this Agreement, the Member is authorized to execute and deliver any document on behalf of the Company. |
| 8. | Management. |
| (a) | Board of Managers. The Company will be managed by a Board of Managers (the “Board,” and each member of the Board, a “Manager”). The Board shall initially consist of one (1) Manager and thereafter such number as fixed by the Board from time to time. Each Manager shall serve until a successor is appointed in accordance with the terms hereof or his or her earlier resignation, death or removal. A Manager may resign at any time by delivering written notice to the Company. Such resignation shall be effective upon receipt by the Company unless it is specified to be effective as of some other time or the happening of some other event. The initial Board of Managers shall consist of the following person: |
John Croteau
| (b) | Powers. The business and affairs of the Company will be managed by the Board. The Board has the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by managers of a limited liability company under the laws of the State of Delaware. The Board is hereby authorized, empowered and directed in the name and on behalf of the Company to approve, execute and deliver any and all agreements, certificates or any other documents on behalf of the Company. The Company may have such officers as appointed by the Board from time to time. |
| (c) | Vacancies. A vacancy on the Board because of resignation, death or removal of a Manager or an increase in the number of Managers may be filled by the remaining members of the Board. |
| 9. | Officers. |
| (a) | General. The officers of the Company will be appointed by the Board and will be a Chief Executive Officer, President, Chief Financial Officer, a Treasurer and a Secretary. The Board, in its discretion, also may appoint one (1) or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by applicable law, the Certificate of Formation of the Company or this Agreement. The officers of the Company need not be members of the Company or Managers. The initial officers of the Company shall be as follows: |
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| Name |
Office | |
| John Croteau | Chief Executive Officer and President | |
| Robert McMullan | Senior Vice President, Chief Financial Officer and Treasurer | |
| Clay Simpson | Vice President, Secretary |
| (b) | Election. The officers of the Company will hold their offices for such terms and will exercise such powers and perform such duties as will be determined from time to time by the Board; and each officer of the Company will hold office until such officer’s successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Any officer appointed by the Board may be removed at any time by the Board. Any vacancy occurring in any office of the Company will be filled by the Board. The salaries of all officers of the Company will be fixed by the Board. |
| (c) | Chief Executive Officer. The Chief Executive Officer will, subject to the control of the Board, have general supervision of the business of the Company and will see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer will execute all bonds, mortgages, contracts and other instruments of the Company requiring a seal, under the seal of the Company, except where required or permitted by applicable law to be otherwise signed and executed and except that the other officers of the Company may sign and execute documents when so authorized by this Agreement, the Board or the Chief Executive Officer. The Chief Executive Officer will preside at all meetings of the members of the Company and, if the Chief Executive Officer is also a manager, the Board. The Chief Executive Officer will also perform such other duties and may exercise such other powers as may from time to time be assigned to such officer by these Bylaws or by the Board. |
| (d) | Vice Presidents. At the request of the Chief Executive Officer or, in the Chief Executive Officer’s absence or in the event of the Chief Executive Officer’s inability or refusal to act, the Vice President, or the Vice Presidents if there are more than one (in the order designated by the Board), will perform the duties of the Chief Executive Officer, and when so acting, will have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. Each Vice President will perform such other duties and have such other powers as the Board from time to time may prescribe. If there be no Vice President, the Board will designate the officer of the Company who, in the absence of the Chief Executive Officer or in the event of the inability or refusal of the Chief Executive Officer to act, will perform the duties of the Chief Executive Officer, and when so acting, will have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. |
| (e) | Secretary. The Secretary will attend all meetings of the Board and all meetings of the members and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary will also perform like duties for committees of the Board when required. The Secretary will give, or cause to be given, notice of all meetings of the members and special meetings of the Board, and will perform |
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such other duties as may be prescribed by the Board or the Chief Executive Officer. If the Secretary will be unable or will refuse to cause to be given notice of all meetings of the members and special meetings of the Board, and if there be no Assistant Secretary, then either the Board or the Chief Executive Officer may appoint another officer to cause such notice to be given. The Secretary will have custody of the seal of the Company and the Secretary or any Assistant Secretary, if there be one, will have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Company and to attest to the affixing by such officer’s signature. The Secretary will see that all books, reports, statements, certificates and other documents and records required by applicable law to be kept or filed are properly kept or filed, as the case may be.
| (f) | Chief Financial Officer. The Chief Financial Officer will have the custody of the corporate funds and securities and will keep full and accurate accounts of receipts and disbursements in books belonging to the Company and will deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Chief Financial Officer will disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, will render to the Chief Executive Officer and the Board, at its regular meetings, or when the Board so requires, an account of all transactions as Chief Financial Officer and of the financial condition of the Company, and will perform such other duties as may be prescribed by the Board or the Chief Executive Officer. If required by the Board, the Chief Financial Officer will give the Company a bond in such sum and with such surety or sureties as will be satisfactory to the Board for the faithful performance of the duties of the office of the Chief Financial Officer and for the restoration to the Company, in case of the Chief Financial Officer’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the Chief Financial Officer’s possession or under the Chief Financial Officer’s control belonging to the Company. |
| (g) | Treasurer. The Treasurer, if there be any, will perform such duties and have such powers as from time to time may be assigned to such person by the Board, the Chief Executive Officer, any Vice President, if there be one, or the Chief Financial Officer, and in the absence of the Chief Financial Officer or in the event of the Chief Financial Officer’s inability or refusal to act, will perform the duties of the Chief Financial Officer, and when so acting, will have all the powers of and be subject to all the restrictions upon the Chief Financial Officer. If required by the Board, a Treasurer will give the Company a bond in such sum and with such surety or sureties as will be satisfactory to the Board for the faithful performance of the duties of the office of Treasurer and for the restoration to the Company, in case of the Treasurer’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the Treasurer’s possession or under the Treasurer’s control belonging to the Company. |
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| (h) | Assistant Secretaries. Assistant Secretaries, if there be any, will perform such duties and have such powers as from time to time may be assigned to them by the Board, the Chief Executive Officer, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of the Secretary’s inability or refusal to act, will perform the duties of the Secretary, and when so acting, will have all the powers of and be subject to all the restrictions upon the Secretary. |
| (i) | Assistant Treasurers. Assistant Treasurers, if there be any, will perform such duties and have such powers as from time to time may be assigned to them by the Board, the Chief Executive Officer, the Chief Financial Officer, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of the Treasurer’s inability or refusal to act, will perform the duties of the Treasurer, and when so acting, will have all the powers of and be subject to all the restrictions upon the Treasurer. |
| (j) | Other Officers. Such other officers as the Board may appoint will perform such duties and have such powers as from time to time may be assigned to them by the Board. The Board may delegate to any other officer of the Company the power to appoint such other officers and to prescribe their respective duties and powers. |
| 10. | Exculpation. No Member, Manager or officer of the Company shall be liable to the Company or to any Member for any action (or omission to act) taken with respect to the Company so long as such Member, Manager or officer: (a) acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company; and (b) was neither grossly negligent nor engaged in willful malfeasance. |
| 11. | Indemnification. |
| (a) | The Company shall, to the maximum extent and in the manner permitted by the Act, indemnify each of its managers 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 Company. For purposes of this Section 11(a), a “manager” or “officer” of the Company includes any person (a) who is or was a manager or officer of the Company, (b) who is or was serving at the request of the Company as a manager or officer of another corporation, partnership, joint venture, trust or other enterprise, or (c) who was a manager or officer of a corporation which was a predecessor corporation of the Company or of another enterprise at the request of such predecessor corporation. |
| (b) | The Company shall have the power, to the maximum extent and in the manner permitted by the Act, to indemnify each of its employees and agents (other than managers and officers) against expenses (including attorneys’ fees), judgments, |
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| 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 Company. For purposes of this Section 11(b), an “employee” or “agent” of the Company (other than a manager or officer) includes any person (a) who is or was an employee or agent of the Company, (b) who is or was serving at the request of the Company as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (c) who was an employee or agent of a corporation which was a predecessor corporation of the Company or of another enterprise at the request of such predecessor corporation. |
| (c) | The Company may purchase and maintain insurance on behalf of any person who is or was a manager, officer, employee or agent of the Company, or is or was serving at the request of the Company as a manager, director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Company would have the power to indemnify him or her against such liability under the provisions of the Act. |
| (d) | Expenses incurred in defending any action or proceeding for which indemnification is required pursuant to Section 11(a) or for which indemnification is permitted pursuant to Section 11(b) following authorization thereof by the Board of Managers shall be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be determined that the indemnified party is not entitled to be indemnified as authorized in this Section 11. |
| (e) | The indemnification provided by this Section 11 shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any agreement, vote of members or disinterested managers or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office, to the extent that such additional rights to indemnification are authorized in the Certificate of Formation of the Company. |
| (f) | No indemnification or advance shall be made under this Section 11, except where such indemnification or advance is mandated by law or the order, judgment or decree of any court of competent jurisdiction, in any circumstance where it appears: |
i. That it would be inconsistent with a provision of the Certificate of Formation of the Company, this Agreement, or an agreement in effect at the time of the accrual of the alleged cause of the action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or
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ii. That it would be inconsistent with any condition expressly imposed by a court in approving a settlement.
| 12. | Dissolution. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of (a) the written consent of the Member, or (b) the entry of a decree of judicial dissolution under the Act. |
| 13. | Capital Contributions. The Member and persons hereafter admitted as members of the Company may (but shall not be obligated to) make contributions of cash (or promissory obligations), property or services to the Company as shall be determined by the Board and the member making such contribution at the time of each such admission. |
| 14. | Allocation of Profits and Losses. All of the Company’s profits and losses will be allocated to the Member. |
| 15. | Distributions. Distributions shall be made to the Member at the times and in amounts determined by the Board. |
| 16. | Assignments. The Member may assign in whole or in part its interests in the Company. |
| 17. | New Members. New members may be admitted to the Company on such terms as may be agreed to by the Member. |
| 18. | Amendments. This Agreement may be amended with the written approval of the Member. |
| 19. | Governing Law. This Agreement and all disputes and controversies arising hereunder or relating hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Agreement as of the date first written above.
| MACOM TECHNOLOGY SOLUTIONS HOLDINGS, INC., a Delaware corporation | ||
| By: | /s/ John Croteau | |
| Name: | John Croteau | |
| Title: | President and Chief Executive Officer |
EXHIBIT 3.4
AMENDMENT NO. 1 TO THE
LIMITED LIABILITY COMPANY AGREEMENT
OF
MONTANA MERGER SUB II, LLC
This AMENDMENT NO. 1 (this “Amendment”) to the Limited Liability Company Agreement (the “Agreement”) of Montana Merger Sub II, LLC (the “Company”) is entered into as of December 28, 2016, by MACOM Technology Solutions Holdings, Inc., a Delaware corporation and the sole member of the Company (the “Member”).
WHEREAS, the Company was formed by the filing of a certificate of formation (the “Certificate of Formation”) pursuant to the Delaware Limited Liability Company Act, as amended from time to time (6 Del.C. §18-101, et seq.) (the “Act”), on November 17, 2016;
WHEREAS, the Company amended the Certificate of Formation pursuant to the Act, on December 28, 2016 to change the name of the Company; and
WHEREAS, the Member desires to amend the Agreement to change the name of the Company effective as of the date first set forth above.
NOW THEREFORE, the Member hereby amends the Agreement pursuant to Section 18 thereof as follows:
| 1. | Amendments. |
| (a) | Section 1 of the Agreement is hereby deleted in its entirety and replaced with the following: |
| 1. | Name and Address. The name of the limited liability company is MACOM Connectivity Solutions, LLC. The principal office of the Company shall be at any location as approved by Board of Managers (as defined below). |
| (b) | All other references in the Agreement to “Montana Merger Sub II, LLC” are hereby deleted and replaced with “MACOM Connectivity Solutions, LLC.” |
| 2. | No Other Amendments. Except as hereby amended, the Agreement shall remain in full force and effect. |
| 3. | Governing Law. This Amendment and all disputes and controversies arising hereunder or relating hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Amendment as of the date first written above.
MACOM TECHNOLOGY SOLUTIONS HOLDINGS, INC.,
a Delaware corporation
| By: | /s/ John Croteau | |
| Name: | John Croteau | |
| Title: | President and Chief Executive Officer | |