Exhibit 4.1
CREDENCE SYSTEMS CORPORATION, the
Company
LTX CORPORATION, the
Parent
and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
Trustee
SUPPLEMENTAL INDENTURE
Dated as of August 29,
2008
To
INDENTURE
Dated as of December 20,
2006
Relating to
Credence Systems
Corporation
3.5% Convertible Senior Subordinated
Notes due 2010
SUPPLEMENTAL
INDENTURE
This SUPPLEMENTAL INDENTURE, dated
as of the 29th day of August, 2008, is by and among CREDENCE
SYSTEMS CORPORATION, a Delaware corporation (the
“Company”), LTX CORPORATION, a Massachusetts
corporation (the “Parent”), and THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A. (formerly 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, 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 , the Company, Zoo Merger Corporation, a
Delaware corporation (“Merger Sub”), and the Parent
have entered into an Agreement and Plan of Merger dated as of
June 20, 2008 (the “Merger Agreement”), pursuant
to which Merger Sub will merge with and into the Company (the
“Merger”), and as a result of which the Company will be
a direct wholly-owned subsidiary of the Parent;
WHEREAS , pursuant to the Merger Agreement, each share
of the Company’s common stock outstanding immediately prior
to the effective time of the Merger (the “Effective
Time”) will be converted into the right to receive 0.6129 of
a share of common stock of the Parent;
WHEREAS , concurrently with the Merger, the name of the
Parent will be changed to “LTX-Credence
Corporation”;
WHEREAS , when the Company is party to a share exchange
such as that contemplated by the Merger, Section 4.06 of the
Indenture requires the Company and the Trustee to amend the
Indenture to change the circumstances under which the Holders may
require the Company to repurchase the Convertible Notes following a
Designated Event;
WHEREAS , Section 5.01 of the Indenture permits the
Company to merge with another corporation provided certain
conditions are satisfied;
WHEREAS , Section 12.06 of the Indenture provides
that if there occurs a consolidation, merger, share exchange or
combination of the Company with another person as a result of which
holders of the Company’s common stock shall receive stock in
exchange for such common stock, then the Company and the Trustee
shall execute a supplemental indenture providing that the
Convertible Notes shall be convertible into the kind and amount of
shares of stock receivable upon such share exchange by a holder of
a number of shares of common stock issuable upon conversion of the
Convertible Notes immediately prior to such share
exchange;
WHEREAS , Section 9.01 of the Indenture authorizes
the Company and the Trustee to amend the Indenture pursuant to
Sections 4.06 and 12.06 thereof without the consent of the
Holders;
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WHEREAS , the Company and the Parent desire to execute a
supplemental indenture that complies with Section 9.01 of the
Indenture;
WHEREAS , all acts and things necessary to make this
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 Supplemental Indenture has
been in all respects, duly authorized; and
WHEREAS , the foregoing recitals are made as
representations or statements of fact by the Company and not by the
Trustee;
NOW, THEREFORE
, in consideration of the premises
and of other good and valuable consideration, the receipt of which
is hereby acknowledged, the Company hereby covenants and agrees
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
AMENDMENTS TO THE
INDENTURE
Section 1.1
On the terms and subject to the
conditions set forth herein, the Indenture is amended as
follows:
(a) The following defined terms in
Section 1.01 of the Indenture [Definitions] are hereby amended
and restated to read in their respective entirety as
follows:
“‘Board of
Directors’ means the Board of Directors of the Parent or any
authorized committee of the Board of Directors.”
“‘Change of
Control’ means the occurrence of one or more of the following
events: (a) any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act) of shares
representing more than 50% of the combined voting power of the then
outstanding Voting Stock of the Parent, (b) the Parent
consolidates with or merges into any other corporation, any other
corporation merges into the Parent, or the Parent effects a share
exchange, and, in the case of any such transaction, the outstanding
Common Stock of the Parent is reclassified into or exchanged for
any other property or securities, unless the shareholders of the
Parent immediately before such transaction own, directly or
indirectly immediately following such transaction, at least a
majority of the combined voting power of the then outstanding
Voting Stock of the corporation resulting from such transaction in
substantially the same respective proportions as their ownership of
the Voting Stock of the Parent immediately before such transaction,
(c) the Parent, or the Parent and its subsidiaries taken as a
whole, sells, assigns, conveys, transfers or leases all or
substantially all assets of the Parent, or of the Parent and its
subsidiaries taken as a whole, as applicable (other than to one or
more wholly-owned subsidiaries of the Parent), (d) any time
the Continuing Directors do not constitute a majority of
the
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Board of Directors of the Parent
(or, if applicable, a successor corporation to the Parent), or
(e) the Parent undertakes a liquidation, dissolution or
winding up; provided , however , that a Change of
Control under (a), (b) and (c) above shall not be deemed
to have occurred if at least 95% of the consideration (excluding
cash payments for fractional shares) in the transaction or
transactions constituting the Change of Control consists of shares
of common stock that are, or upon issuance will be, traded on the
New York Stock Exchange or listed on the Nasdaq Global Select
Market.”
“‘Common Stock’
means any stock of any class of the Parent which has no preference
in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of
the Parent and which is not subject to redemption by the Parent.
Subject to the provisions of Section 12.06, however, shares
issuable on conversion of Convertible Notes shall include only
shares of the class designated as Common Stock of the Parent at the
effective time of the Merger or shares of any class or classes
resulting from any reclassification or reclassifications thereof
and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Parent and which are not subject
to redemption by the Parent; provided , however ,
that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.”
“‘Opinion of
Counsel’ means a written opinion from legal counsel who may
be an employee of or counsel to the Parent or the Company except to
the extent otherwise indicated in this Indenture.”
“‘Volume Weighted
Average Price’ per share of Common Stock on any Trading Day
means such price as displayed on Bloomberg (or any successor
service) page “LTXX EQUITY VAP” in respect of the
period from 9:30 a.m. to 4:00 p.m., New York City time, on such
Trading Day; or, if such price is not available, the Volume
Weighted Average Price means the market value per share of Common
Stock on such day as determined by a nationally recognized
independent investment banking firm retained for this purpose by
the Parent.”
(b) The following definitions are
hereby inserted into Section 1.1 of the Indenture
[Definitions] in their respective alphabetical order:
“‘Merger’ means
the merger of Zoo Merger Corporation, a Delaware corporation
(“Merger Sub”), with and into the Company pursuant to
the Agreement and Plan of Merger dated as of June 20, 2008 by
and among the Company, the Parent and Merger Sub, pursuant to which
the Company will become a direct wholly-owned subsidiary of the
Parent.”
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“‘Officer of
Parent’ means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Chief
Accounting Officer, any Executive Vice President, Senior Vice
President or Vice President (whether or not designated by a number
or numbers or word or words before or after the title “Vice
President”), the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the
Parent.”
“‘Parent’ means
LTX Corporation, a Massachusetts corporation, until the
consummation of the Merger, and from and after the consummation of
the Merger, means LTX-Credence Corporation, a Massachusetts
corporation.”
“‘Parent Officers’
Certificate’ means a certificate signed by two Officers of
Parent, one of whom is the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer, the
Treasurer or the Controller of the Parent.”
(c) All references in the Indenture
to “Common Stock of the Company” are hereby amended and
restated to read “Common Stock of the Parent” and all
references in the Indenture to “the Company’s Common
Stock” are hereby amended and restated to read “the
Parent’s Common Stock”.
(d) Section 4.10 of the
Indenture [Reports] is hereby amended and restated to read in its
entirety as follows:
“SECTION 4.10. Reports
. If at any time the Parent is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a holder of a
Convertible Note, the Parent will promptly furnish or cause to be
furnished to such holder or to a prospective purchaser of such
Convertible Note designated by such holder, as the case may be, the
information, if any, required to be delivered by it pursuant to
Rule 144A(d)(4) under the Securities Act to permit compliance with
Rule 144A in connection with the resale of such Convertible Note;
provided, however, that the Parent shall not be required to furnish
such information in connection with any request made on or after
the date which is two years from the later of the date such
Convertible Note was last acquired from the Company or an
“affiliate” of the Company.”
(e) Clause (b), (e), (j) and
(n) of Section 7.02 of the Indenture [Rights of the
Trustee] each is hereby amended and restated to read in its
entirety as set forth in the corresponding paragraph
below:
“(b) Any request, direction,
order or demand of the Company mentioned herein shall be
sufficiently evidenced by
