EXHIBIT 3.5
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated as of
August 14, 2003, is between Integrated Defense Technologies, Inc., a Delaware
corporation (the "Company"), and The Bank of New York, a national banking
corporation (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of February 5, 2002, ( the "Rights Agreement"); and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent desire to amend the Rights Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. AMENDMENT OF SECTION 1.
Section 1 of the Rights Agreement is amended by adding thereto
subsections (ss) and (tt) which shall read as follows:
"(ss) "AGREEMENT AND PLAN OF MERGER" shall mean the Agreement and Plan
of Merger, dated as of August 15, 2003, among DRS Technologies, Inc.,
a Delaware corporation ("PARENT"), MMC3 Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent ("MERGER SUB"), and
the Company, as the same may be amended from time to time."
"(tt) "VOTING AGREEMENT" shall mean the Voting Agreement, dated as of
August 15, 2003, by and among Parent, Veritas Capital Management,
L.L.C., a Delaware limited liability company, Veritas Capital Fund,
L.P., a Delaware limited partnership, and IDT Holding, L.L.C., a
Delaware limited liability company, as the same may be amended from
time to time."
2. AMENDMENT OF SECTION 7.
Paragraph (a) of Section 7 of the Rights Agreement is amended by
deleting the word "or" immediately preceding clause (iii) thereof and deleting
the phrase "(the earliest of (i), (ii) and (iii) being herein referred to as the
"Expiration Date")" and by adding the following new phrase immediately following
clause (iii) thereof: "; or (iv) immediately prior to the Effective Time (as
such term is defined in the Agreement and Plan of Merger) (the earliest of (i),
(ii), (iii) and (iv) being herein referred to as the "Expiration Date")."
3. ADDITION OF NEW SECTION 35.
The Rights Agreement is amended by adding a Section 35 thereof which
shall read as follows:
"Section 35. EXCEPTION FOR AGREEMENT AND PLAN OF MERGER.
Notwithstanding any provision of this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred, none of Parent
or Merger Sub or any of their Affiliates or Associates shall be deemed
to have become an Acquiring Person, and no holder of any Rights shall
be entitled to exercise such Rights under, or be entitled to any
rights pursuant to, any of Sections 3(a), 7(a), 11(a) or 13 of this
Agreement, in any such case by reason of (a) the approval, execution
or delivery of the Agreement and Plan of Merger or any amendments
thereof approved in advance by the Board of Directors of the Company,
(b) the approval, execution or delivery of the Voting Agreement or any
amendments thereof, or (c) the commencement or, prior to termination
of the Agreement and Plan of Merger, the consummation of any of the
transactions contemplated by the Agreement and Plan of Merger or the
Voting Agreement in accordance with their respective provisions,
including, without limitation, the Merger (as defined in the Agreement
and Plan of Merger)."
4. EFFECTIVENESS.
This Amendment shall be deemed effective as of August 15, 2003 as if
executed by both parties hereto on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
5. MISCELLANEOUS.
This Amendment shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such state applicable to contracts to be made
and performed entirely within such state, except that the rights and
obligations of the Rights Agent shall be governed by the laws of the State of
New York. This Amendment may be executed in any number of counterparts, each
of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same
instrument. If any term, provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be
invalid, illegal, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
INTEGRATED DEFENSE TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
Title: Chairman
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
