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Exhibit 4.9
CYRAS SYSTEMS, INC.
4 1/2% Convertible Subordinated Notes Due August 15, 2005
SECOND SUPPLEMENTAL INDENTURE
Dated as of November 28, 2000
to
INDENTURE
Dated as of August 18, 0000
XXXXX XXXXXX BANK AND TRUST COMPANY OF CALIFORNIA, N.A.
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SECOND SUPPLEMENTAL INDENTURE (the "Second Supplemental Indenture") dated
as of November 28, 2000 between Cyras Systems, Inc., a Delaware corporation
("Cyras Systems Delaware"), and State Street Bank and Trust Company of
California, N.A., a national banking association organized and existing under
the laws of the United States (the "Trustee").
W I T N E S S E T H:
WHEREAS, there has previously been executed and delivered to the Trustee
an Indenture dated as of August 18, 2000 (the "Indenture"), providing for the
issuance of $150,000,000 in aggregate principal amount of 4 1/2% Convertible
Subordinated Notes due August 15, 2005 (the "Notes") of Cyras Systems, Inc., a
California corporation ("Cyras Systems California");
WHEREAS, Cyras Systems California has merged (or will merge substantially
concurrently with the execution and delivery of this Second Supplemental
Indenture) with and into Cyras Systems Delaware (the "Merger"), with Cyras
Systems Delaware as the surviving corporation in the Merger pursuant to an
Agreement and Plan of Merger, dated as of November 16, 2000, among Cyras Systems
California and Cyras Systems Delaware;
WHEREAS, pursuant to the Merger each outstanding share of common stock of
Cyras Systems California is converted into one outstanding share of common stock
of Cyras Systems Delaware;
WHEREAS, in the case of a merger of Cyras Systems California with and into
any other corporation, Article 7 and Section 4.11 of the Indenture require that
the surviving corporation execute and deliver to the Trustee a supplemental
indenture providing for certain conversion rights to Holders of the Notes and
the assumption by the surviving corporation of the covenants, agreements and
obligations of the Company under the Indenture;
WHEREAS, Section 11.1 of the Indenture provides that the Company (as
defined in the Indenture) and the Trustee may, without the consent of any
Holders, enter into a supplemental indenture to comply with the terms of Article
7 and Section 4.11 of the Indenture;
WHEREAS, in accordance with Sections 11.1 and 12.4 of the Indenture, the
Company (as defined in the Indenture) has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel; and
WHEREAS, all acts and proceedings required by law, under the Indenture and
by the Certificate of Incorporation of Cyras Systems Delaware to constitute this
Second Supplemental Indenture a valid and binding agreement for the uses and
purposes set forth herein, in accordance with its terms, have been done and
taken, and the execution and delivery of this Second Supplemental Indenture have
been in all respects duly authorized by Cyras Systems Delaware;
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NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Cyras
Systems Delaware and the Trustee hereby agree as follows:
1. For the purposes of this Second Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the capitalized terms and expressions used herein shall have the same
meaning as corresponding terms and expressions used in the Indenture; and (ii)
the words "herein," "hereof" and "hereby" and other words of similar import used
in this Second Supplemental Indenture refer to this Second Supplemental
Indenture as a whole and not to any particular section hereof.
2. Cyras Systems Delaware hereby assumes all the covenants, agreements
and obligations of the Company under the Notes and the Indenture, including the
obligation to make due and punctual payment of the principal of and premium, if
any, and interest on all of the Notes and the due and punctual performance of
all of the covenants and conditions to be performed by the Company under the
Indenture. From and after the effective time of the Merger, the Notes shall be
convertible into shares of common stock of Cyras Systems Delaware on the same
terms and basis (and subject to the same adjustments under the Indenture) as the
Notes were convertible into common stock of Cyras Systems California prior to
the effectiveness of the Merger, and on and after the effective time of the
Merger references in the Indenture to "Common Stock" shall be deemed to be
references to common stock of Cyras Systems Delaware.
3. 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, including the terms and conditions as set forth in
the Indenture, as hereby amended, 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 in the
performance of the trust created by the Indenture, as hereby amended, and
without limiting the generality of the foregoing, the Trustee has no
responsibility for the correctness of the recitals of fact herein contained
which shall be taken as the statements of Cyras Systems Delaware and makes no
representations as to the validity or sufficiency of this Second Supplemental
Indenture and shall incur no liability or responsibility in respect of the
validity thereof.
4. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed, and all the terms, conditions and provisions hereof
shall remain in full force and effect.
5. This Second Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Notes heretofore or hereafter
authenticated shall be bound hereby.
6. This Second Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all of such counterparts shall together constitute one and the same
instrument.
7. This Second Supplemental Indenture shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with such laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed all as of the day and year first
above written.
CYRAS SYSTEMS, INC.,
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a California corporation
By: /s/ SHEKHAR MANDAL
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Shekhar Mandal
Vice President for Finance and Administration
and Chief Financial Officer
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
By: /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
Vice President
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