Exhibit 4.3
EXECUTION COPY
CREDENCE SYSTEMS CORPORATION, the
Company
LTX-CREDENCE CORPORATION, the
Parent
and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
Trustee
SECOND SUPPLEMENTAL
INDENTURE
Dated as of January 30,
2009
To
INDENTURE
Dated as of December 20,
2006,
As amended by
SUPPLEMENTAL INDENTURE
Dated as of August 29,
2008
Relating to
Credence Systems
Corporation
3.5% Convertible Senior Subordinated
Notes due 2010
SECOND SUPPLEMENTAL
INDENTURE
This SECOND SUPPLEMENTAL INDENTURE
(this “Second Supplemental Indenture”), dated as of the
30th day of January, 2009, is made by and among CREDENCE SYSTEMS
CORPORATION, a Delaware corporation (the “Company”),
LTX-CREDENCE CORPORATION, a Massachusetts corporation formerly
known as LTX Corporation (the “Parent”), and THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A. (formerly known as THE BANK
OF NEW YORK TRUST COMPANY, N.A.), as trustee under the Indenture
referred to below (the “Trustee”).
WITNESSETH:
WHEREAS , the Company and the Trustee have heretofore
entered into that certain Indenture dated as of December 20,
2006 (as amended, modified and supplemented from time to time,
including by the First Supplemental Indenture (as defined below),
the “Indenture”), providing for the issuance of an
initial principal amount of $122,500,000 of 3.5% Convertible Senior
Subordinated Notes due 2010 (the “Convertible
Notes”);
WHEREAS , as a result of the merger of Zoo Merger
Corporation, formerly a Delaware corporation and wholly-owned
subsidiary of the Parent (“Merger Sub”), with and into
the Company, pursuant to the Agreement and Plan of Merger dated as
of June 20, 2008, among the Company, Merger Sub and the
Parent, the Company became a direct, wholly-owned subsidiary of the
Parent and the Parent, the Company and the Trustee executed the
Supplemental Indenture, dated as of August 29, 2008 (the
“First Supplemental Indenture”);
WHEREAS, the First Supplemental Indenture amended the
Indenture to provide for, among other things, the issuance of
shares of the Parent’s Common Stock upon conversion of the
Convertible Notes, as more particularly described in the First
Supplemental Indenture;
WHEREAS , the Parent now intends to cause the Company to
merge with and into the Parent, with the Parent being the surviving
corporation of such merger (the “Merger”), immediately
after the execution and delivery of this Second Supplemental
Indenture;
WHEREAS , Section 5.01 of the Indenture permits the
Company to merge with another corporation provided certain
conditions are satisfied;
WHEREAS , Section 9.01(c) of the Indenture
authorizes the Company and the Trustee to amend the Indenture
without the consent of any holders of the Convertible Notes for the
purpose of evidencing the succession of another person to the
Company and providing for the assumption by such successor of the
covenants and obligations of the Company under the Indenture and in
the Convertible Notes as permitted by Section 5.01 of the
Indenture;
WHEREAS , the Company and the Parent desire to execute
this Second Supplemental Indenture in compliance with Sections 5.01
and 9.01(c) 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
has been in all respects, duly authorized; and
1
WHEREAS , the foregoing recitals are made as
representations or statements of fact by the Company and the Parent
and not by the Trustee;
NOW, THEREFORE
, in consideration of the premises
and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the
Parent hereby covenant and agree with the Trustee, for the equal
and proportionate benefit of the respective holders from time to
time of the Convertible Notes, as follows:
ARTICLE I
ASSUMPTION OF
OBLIGATIONS
On the terms and subject to the
conditions set forth herein, effective as of the Effective Time (as
defined below), (i) the Parent hereby assumes the due and
punctual payment of the principal of, and interest and Liquidated
Damages, if any, on all of the outstanding Convertible Notes and
the performance of every covenant of such Convertible Notes and the
Indenture and the Registration Rights Agreement on the part of the
Company to be performed or observed and (ii) the Parent hereby
succeeds to, and is substituted for, and may exercise every right
and power of, the Company under the Indenture with the same effect
as if the Parent had been named as the Company under the
Indenture.
ARTICLE II
CONDITION TO
EFFECTIVENESS
This Second Supplemental Indenture
shall become effective concurrently with the effective time of the
Merger (the “Effective Time”). The Company will
promptly notify the Trustee of the Effective Time and the
effectiveness of this Second Supplem
