Exhibit 1.1
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EDO CORPORATION
and
HSBC BANK USA, NATIONAL ASSOCIATION
Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of
December 20, 2007
to
INDENTURE
Dated as of
November 21, 2005
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SECOND SUPPLEMENTAL INDENTURE, dated as of December 20, 2007, between EDO
CORPORATION, a New York corporation (the "Company"), having its principal office
at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and HSBC BANK USA,
NATIONAL ASSOCIATION, as Trustee (the "Trustee"), the office of the Trustee at
which at the date hereof its corporate trust business is principally
administered being 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company has executed and delivered to the Trustee an Indenture, dated
as of November 21, 2005 (the "Original Indenture"), and a First Supplemental
Indenture, dated as of November 21, 2005 (the "First Supplemental Indenture";
the Original Indenture, as supplemented by the First Supplemental Indenture, the
"Supplemented Indenture"; and the Supplemented Indenture, as further
supplemented by this Second Supplemental Indenture, the "Indenture"), providing
for the issuance from time to time of the Company's debentures, notes or other
evidences of indebtedness, issuable in one or more series as provided in the
Indenture. All capitalized terms used herein which are defined in the
Supplemented Indenture shall have the meanings assigned thereto in the
Supplemented Indenture unless otherwise defined herein.
Pursuant to the Agreement and Plan of Merger, dated as of September 16,
2007 (the "Merger Agreement"), among the Company, ITT Corporation, an Indiana
corporation ("Parent"), and Xxxxxxxxx Acquisition Corp., a New York corporation
and a wholly-owned subsidiary of Parent ("Merger Sub"), Merger Sub is,
concurrently with the execution and delivery of this Second Supplemental
Indenture, merging with and into the Company (the "Merger"), with the Company
continuing as the surviving corporation and a wholly-owned subsidiary of Parent.
At the effective time of the Merger (the "Effective Time"), each outstanding
share of Common Stock (other than any shares of Common Stock held by the Company
as treasury shares or any shares of Common Stock held by Parent or Merger Sub)
will be automatically canceled and converted into the right to receive $56.00 in
cash, without interest and less any applicable withholding tax.
Section 5.11(a) of the First Supplemental Indenture provides, with respect
to the Company's 4% Convertible Senior Subordinated Notes Due 2025
(collectively, the "Notes"), that the Company is required to enter into a
supplemental indenture, without the consent of Holders, providing that each Note
shall be convertible into the kind and amount of shares of stock, other
securities or other property or assets (including cash) receivable upon
consummation of the Merger by a holder of a number of shares of Common Stock
equal to the Applicable Conversion Rate immediately prior to the Merger, subject
to the Company's right to settle such conversion in cash pursuant to Section
5.03 of the First Supplemental Indenture.
Pursuant to the foregoing authority, the Company proposes, in and by this
Second Supplemental Indenture, to supplement and amend the Supplemented
Indenture.
All things necessary to make this Second Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes or of series thereof, as
follows:
Section 1. Conversion. (a) In accordance with Section 5.11(a) of the First
Supplemental Indenture, as of the Effective Time, each Note will no longer be
convertible into shares of Common Stock and will be convertible solely into
cash, in an amount equal to the product of (x) $56.00 and (y) a number equal to
the Applicable Conversion Rate immediately prior to the Effective Time for each
integral multiple of $1,000 principal amount of such Note. This conversion right
shall be subject to adjustment on the same terms as provided in Article 5 of the
First Supplemental Indenture.
(b) In addition, the consummation of the Merger constitutes a "Make Whole
Change of Control". Pursuant to Sections 5.10(a) and (b) of the First
Supplemental Indenture, the Applicable Conversion Rate for any Notes surrendered
for conversion during the Make Whole Period (as defined below) will be increased
by 0.7572 additional shares of Common Stock per $1,000 principal amount of such
Notes and will constitute 30.0065 shares of Common Stock per $1,000 principal
amount of such Notes. "Make Whole Period" means the period commencing on
November 9, 2007 and ending on the date that is 45 calendar days after the date
on which a written notice is given by the Company to the Holders and the Trustee
after the date hereof in respect of the occurrence of the Merger pursuant to
Section 7.01(b) of the First Supplemental Indenture.
Section 2. Ratification. The Supplemented Indenture, as hereby amended and
supplemented, is ratified and confirmed in all respects. From and after the date
hereof, this Second Supplemental Indenture shall form a part of the Indenture
for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby. All recitations or recitals
contained in this Second Supplemental Indenture are made by and on behalf of the
Company only, and the Trustee is in no way responsible for the correctness of
any statement herein contained or for the validity or sufficiency of this Second
Supplemental Indenture. The execution by the Trustee of this Second Supplemental
Indenture shall not be construed to be an approval or disapproval by the Trustee
of the advisability of the action being taken herein by the Company. All the
provisions of the Indenture with respect to the rights, privileges, immunities,
powers and duties of the Trustee shall be applicable in respect hereof as fully
and with like effect as if set forth herein in full with such omissions,
variations or insertions, if any, as may be appropriate to make the same conform
to this Second Supplemental Indenture. This Second Supplemental Indenture shall
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be governed by and construed in accordance with the laws of the State of New
York.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the day and year first above written.
EDO CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President - Finance,
Chief Financial Officer and
Treasurer
HSBC BANK USA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
