This FIRST
SUPPLEMENTAL INDENTURE, dated as of July 27, 2009 (this
“First Supplemental Indenture”), between Borland
Software Corporation, a corporation duly organized and existing
under the laws of the State of Delaware, as Issuer (the
“Company”), and U.S. Bank National Association, a
national banking association, as Trustee (the
“Trustee”) under the Indenture referred to herein.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Indenture referred
to below.
WHEREAS, the
Company and the Trustee, are parties to an Indenture dated as of
February 6, 2007 (the “Indenture”), providing for
the issuance of 2.75% Convertible Senior Notes due 2012 (herein
called the “Securities”);
WHEREAS, the
Company entered into an Agreement and Plan of Merger, dated as of
May 5, 2009, with Bentley Merger Sub, Inc., a Delaware
corporation (“ Merger Sub ”), Micro Focus
International plc, a company organized under the laws of England
and Wales (“ PLC ”) and Micro Focus (US), Inc.,
a Delaware corporation (“ Parent ”), as amended
by the Amendment to Agreement and Plan of Merger, dated as of
June 17, 2009, and the Second Amendment to Agreement and Plan
of Merger, dated as of June 20, 2009 (the “Merger
Agreement”).
WHEREAS, pursuant
to the Merger Agreement, on July 27, 2009, Merger Sub merged
with and into the Company, with the Company as the surviving
corporation (the “Merger”).
WHEREAS, following
completion of the Merger, each issued and outstanding share of the
common stock, par value $0.01 per share (the “ Common
Shares ”), of the Company (other than Common Shares
canceled pursuant to Section 2.01(b) of the Merger
Agreement and Dissenting Shares (as defined in
Section 2.01(d) of the Merger Agreement)),were
converted into the right to receive $1.50 in cash without interest
(the “Merger Consideration,” as defined in
Section 2.01(a) of the Merger Agreement).
WHEREAS,
Section 6.05 of the Indenture provides that in the case of any
merger of the Company with another corporation, the Company or the
successor or purchasing person, 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) providing that the Securities shall be
convertible into the kind and amount of shares of stock, securities
or other 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 Securities (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock
available to convert all such Securities) immediately prior to such
reclassification, change, consolidation, merger, combination, sale
or conveyance (the “Reference Property”).
WHEREAS,
Section 6.04 of the Indenture provides that if
Section 6.05 applies to any event or occurrence,
Section 6.04 shall not apply.
WHEREAS,
Section 12.01 of the Indenture provides that the Company and
the Trustee may enter into a supplemental indenture without the
consent of any Holders for the purposes specified
therein;
WHEREAS, this
First Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company (including a
Board Resolution);
WHEREAS, the
Trustee is authorized to execute and deliver this First
Supplemental Indenture; and
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