FIRST SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 7, 2000
BY AND AMONG
COMPTEK RESEARCH, INC.,
NORTHROP GRUMMAN CORPORATION
AND
THE BANK OF NEW YORK,
AS TRUSTEE
TO
INDENTURE
DATED AS OF MARCH 24, 1999
BETWEEN
COMPTEK RESEARCH, INC.
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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8-1/2% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2004
----------------------------------
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FIRST SUPPLEMENTAL INDENTURE
----------------------------
FIRST SUPPLEMENTAL INDENTURE, dated as of November 7, 2000 (this
"Supplemental Indenture"), by and among Comptek Research, Inc., a New York
corporation (the "Company"), Northrop Grumman Corporation, a Delaware
corporation ("Northrop Grumman"), and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee"), under that certain
Indenture, dated as of March 24, 1999 (the "Indenture"), by and between the
Company and the Trustee.
WHEREAS, the Company and the Trustee have heretofore executed and
delivered the Indenture providing for the issuance by the Company of up to
$20,000,000.00 in aggregate principal amount of 8-1/2% Convertible
Subordinated Debentures Due 2004 (the "Securities"), approximately
$5,000,000.00 of which are currently issued and outstanding;
WHEREAS, on August 31, 2000, Yavapai Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Northrop Grumman ("Merger
Sub"), merged with and into the Company (the "Merger"; the merged entity is
hereinafter sometimes referred to as the "Surviving Corporation") pursuant
to the provisions of that certain Agreement and Plan of Merger, dated as of
June 12, 2000, among Northrop Grumman, Merger Sub and the Company, as
amended as of August 7, 2000 (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement, at the time of the
effectiveness of the Merger, and as a result of the Merger, each issued and
outstanding share of common stock, par value $0.02 per share, of the
Company ("Company Common Stock"), other than those shares of Company Common
Stock owned by Northrop Grumman, any subsidiaries of Northrop Grumman or
the Company or held by the Company as treasury shares and those as to which
appraisal rights, if any, have been exercised, were converted into the
right to receive 0.2799 validly issued, fully paid and nonassessable shares
of common stock, par value $1.00 per share, of Northrop Grumman ("Northrop
Grumman Common Stock");
WHEREAS, Section 10.10 of the Indenture requires that, as a result of
the Merger, the Surviving Corporation shall execute and deliver to the
Trustee a supplemental indenture providing: (i) that the holder of each
Security then outstanding shall have the right thereafter, during the
period such Security shall be convertible as specified in Section 10.1 of
the Indenture, to convert such Security into the number of shares of
Northrop Grumman Common Stock receivable in the Merger by a holder of the
number of shares of Company Common Stock into which such Security might
have been converted immediately prior to the Merger; and (ii) for
adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly as equivalent as may be
practicable to the adjustments provided in Article X of the Indenture; and
WHEREAS, all things necessary to make this First Supplemental
Indenture a valid amendment of and supplement to the Indenture have been
done.
NOW, THEREFORE, in order to comply with the requirements of the
Indenture, the Company and Northrop Grumman covenant and agree with the
Trustee for the equal and proportionate benefit, security and protection of
the respective holders from time to time of the Securities, as follows:
ARTICLE I
MODIFICATIONS OF THE INDENTURE
------------------------------
Section 1.01. The definition of "Affiliate" in Section 1.01 of the
Indenture is hereby amended and restated in its entirety as follows:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the first Person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to
any Person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities or by agreement
or otherwise.
Section 1.02. The definition of "Closing Price" in Section 1.01 of the
Indenture is hereby amended and restated in its entirety as follows:
"Closing Price" means with respect to the shares of Capital Stock of
Northrop Grumman on any day, (i) the reported last sale price regular way
or, in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in either case on
the New York Stock Exchange (the "NYSE"), or (ii) if the shares of Capital
Stock are not listed or admitted to trading on the NYSE, the reported last
sale price regular way or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices regular
way, in either case on the principal national securities exchange on which
the shares of Capital Stock are listed or admitted to trading, or (iii) if
the shares of Capital Stock are not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked
prices as furnished by any NYSE member firm selected from time to time by
the Company for that purpose.
Section 1.03. The definition of "Subsidiary" in Section 1.1 of the
Indenture is hereby amended and restated in its entirety as follows:
"Subsidiary" means, with respect to any Person, any other Person the
majority of whose voting stock is owned by the first Person or a subsidiary
of the first Person. Voting stock is Capital Stock having voting power
under ordinary circumstances to elect directors or similar positions.
Section 1.04. Section 13.2 of the Indenture is hereby amended by
inserting the following notice provision following the words "Attention:
Corporate Trust Department" in the first paragraph thereof:
"if to Northrop Grumman:
Northrop Grumman Corporation
1840 Century Park East
Los Angeles, California 90067
Attention: Treasurer"
ARTICLE II
CONVERSION
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Section 2.01. In accordance with Section 10.10 of the Indenture and
Section 10.05 of the Merger Agreement, Northrop Grumman hereby expressly
assumes the due and punctual performance and observance of all of the
terms, covenants and conditions of Article X of the Indenture to be kept or
performed by the Company.
Section 2.02. Section 10.1 of the Indenture is hereby amended and
restated in its entirety as follows:
"Subject to the provisions of Paragraph 8 of the Securities, the
Holder of any Security or Securities shall have the right, at such Holder's
option, at any time after the Effective Time and before the close of
business on April 1, 2004 (except that, with respect to any Security or
portion of a Security which shall be called for redemption, such right
shall terminate at the close of business on the Redemption Date fixed for
redemption of such Security or portion of a Security unless the Company
shall default in payment due upon redemption thereof), to convert, subject
to the terms and provisions of this Article X, the principal of any such
Security or Securities or any portion thereof which is $1,000 principal
amount or an integral multiple thereof into shares of common stock of
Northrop Grumman Corporation, $1.00 par value per share ("Common Stock"),
initially at the conversion price per share of $33.940693 or, in case an
adjustment of such price has taken place pursuant to the provisions of
Section 10.4, then at the price as last adjusted (such price or adjusted
price being referred to herein as the "conversion price"), upon surrender
of the Security or Securities, the principal of which is so to be
converted, accompanied by written notice of conversion duly executed, to
the Company, at any time during usual business hours at the office or
agency maintained by it for such purpose, and, if so required by the
Conversion Agent or Registrar, accompanied by a written instrument or
instruments of transfer in form satisfactory to the Conversion Agent or
Registrar duly executed by the Holder or his duly authorized representative
in writing. For convenience, the conversion of any portion of the principal
of any Security or Securities into shares of Common Stock is hereinafter
sometimes referred to as the conversion of such Security or Securities.
Section 2.03. Pursuant to Article X of the Indenture, Northrop Grumman
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under Article X of the Indenture with the same effect
as if Northrop Grumman had been named as the Company therein.
Section 2.04. Securities authenticated and delivered on and after the
date hereof shall bear the following notation which may be stamped or
typewritten thereon:
"On August 31, 2000, pursuant to a definitive merger agreement,
Comptek Research, Inc. ("Comptek") became a wholly owned
subsidiary of Northrop Grumman Corporation ("Northrop Grumman"),
which issued 0.2799 shares of its common stock, par value $1.00
per share ("Northrop Grumman Common Stock"), in exchange for each
outstanding share of common stock, par value $0.02 per share, of
Comptek (said merger hereinafter referred to as the "Merger").
Northrop Grumman has assumed the due and punctual performance of
every covenant contained in Article X of the Indenture on the
part of Comptek to be performed or observed. Accordingly,
notwithstanding anything to the contrary in Section 8 hereof, on
and after August 31, 2000, each holder of $1,000 in principal
amount or any integral multiple thereof of Securities outstanding
shall have the right to convert such $1,000 in principal amount
or any integral multiple thereof of the Securities only into
shares of Northrop Grumman Common Stock at the Conversion Price
(as defined below), and cash in lieu of fractional shares of
Northrop Grumman Common Stock, which is the kind and amount of
stock, securities and other property receivable upon the Merger
by a holder of the number of shares of common stock into which
such $1,000 in principal amount or any integral multiple thereof
of the Securities might have been converted immediately prior to
the Merger. "Conversion Price" shall mean $33.940693 per share,
subject to adjustments which shall be as nearly equivalent as
practicable to the adjustments provided for in Section 10.4 of
the Indenture."
If the Company shall so determine, new Securities so modified as to
conform to the Indenture as hereby supplemented, in form satisfactory to
the Trustee, may at any time hereafter be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Securities then outstanding, and thereafter the notation herein provided
shall no longer be required. Anything herein or in the Indenture to the
contrary notwithstanding, the failure to affix the notation herein provided
to any Security or to exchange any Security for a new Security modified as
herein provided shall not affect any of the rights of the holder of such
Security.
ARTICLE III
MISCELLANEOUS
-------------
Section 3.01. Northrop Grumman hereby represents and warrants to the
Trustee and to the holders of the Securities as follows:
(a) Northrop Grumman is a corporation organized and existing
under the laws of Delaware.
(b) This Supplemental Indenture has been duly authorized,
executed and delivered by Northrop Grumman and constitutes a valid and
legally binding obligation of Northrop Grumman, enforceable against
Northrop Grumman in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium, reorganization
or similar laws relating to creditors rights generally and by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 3.02. The Trustee accepts the trusts in this Supplemental
Indenture declared and provided upon the terms and conditions set forth in
the Indenture. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution hereof by Northrop Grumman or
for or in respect of the recitals and statements contained herein, all of
which recitals and statements are made solely by Northrop Grumman.
Section 3.03. Except as hereby expressly modified, the Indenture and
the Securities issued thereunder are in all respects ratified and confirmed
and all of the terms, conditions and provisions thereof shall remain in
full force and effect.
Section 3.04. The recitals contained herein shall be taken as the
statement of Northrop Grumman and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Supplemental Indenture or as to the validity, value,
kind or amount of any shares of Capital Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion
of any Security.
Section 3.05. This Supplemental Indenture shall be effective as of the
date first above written.
Section 3.06. Unless otherwise defined herein, or unless the context
otherwise requires, the terms used herein shall have the respective
meanings assigned to them in the Indenture.
Section 3.07. The parties may sign multiple counterparts of this
Supplemental Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent the same agreement.
Section 3.08. The laws of the State of New York shall govern this
Supplemental Indenture without regard to principles of conflicts of law.
Each of the parties hereto agrees to submit to the jurisdiction of the
Courts of the State of New York and the U.S. Federal Courts, in each case
sitting in the Erie County, New York, and waives any objection as to venue
or forum non conveniens.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
NORTHROP GRUMMAN CORPORATION
By: /s/ Albert F. Myers
--------------------------------
Name: Albert F. Myers
Title: Corporate Vice President &
Treasurer
COMPTEK RESEARCH, INC.
By: /s/ Laura Benedetti
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By: /s/ Derek Kettel
--------------------------------
Name: Derek Kettel
Title: Agent
