EXHIBIT 2.2
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This AMENDMENT, dated as of May 5, 1998, to that certain STOCK
PURCHASE AGREEMENT, dated as of April 6, 1998, as amended (the "Stock
Purchase Agreement"), by and among THE SELLING SHAREHOLDERS SPECIFIED THEREIN
(the "Sellers") and XXXXX SIGNAL PROCESSING, LTD., an Israeli corporation
("Xxxxx"), on the one hand, and XXXXXX ELECTRONICS CORPORATION, a New York
Corporation (the "Buyer"), on the other hand.
RECITALS
WHEREAS, each of the Xxxxxxx, Xxxxx and Xxxxxx desire to amend the
Stock Purchase Agreement in accordance with the terms and conditions of this
Amendment; and
WHEREAS, each of the Xxxxxxx, Xxxxx and Xxxxxx desire that the
Stock Purchase Agreement, as amended by this Amendment, continue in full
force and effect; and
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, the Parties hereby
agree as follows:
1. DEFINITIONS.
To the extent not otherwise defined in this Amendment, all
capitalized terms shall have the meanings ascribed thereto in the Stock
Purchase Agreement.
2. PURCHASE AND SALE OF THE SHARES.
Section 2(d)(i) of the Stock Purchase Agreement shall hereby be
amended and restated in its entirety to read as follows:
"(i) Subject to Section 2(e) hereof, of the Xxxxxx Shares comprising the
Share Consideration, one-third (1/3) shall become freely transferable by the
holders thereof upon the first anniversary of the Closing, and an additional
one-third (1/3) shall become freely transferable on each of the second and
third anniversaries of the Closing, respectively. Prior to such times that
such portions of the Xxxxxx Shares comprising the aggregate Share
Consideration become freely transferable in accordance with the immediately
preceding sentence, such Xxxxxx Shares shall not be transferable by any
holder thereof (such restriction on transfer being the "Share Consideration
Trading Restriction") unless the respective transferees thereof agree in
writing to be bound by the Share Consideration Trading Restriction set forth
in this Section 2(d) and Section 6(i) in respect of such transferred Xxxxxx
Shares and such transfer would not involve an offering or distribution of
such Xxxxxx Shares requiring registration under or otherwise in violation of
the Securities Act or other applicable law; provided, however, Xxxxxx Shares
comprising the Share Consideration may be pledged as collateral to secure any
borrowing provided that any pledgee agrees in writing to be bound by the
Share Consideration Trading Restriction."
Section 2(d)(iii) of the Stock Purchase Agreement shall be amended and
restated in its entirety to read as follows:
"(iii) In the event of a public offering by Buyer of Xxxxxx Shares
prior to the first anniversary of the Closing, such number of Xxxxxx Shares
set forth in accordance with Schedule 2(d)(iii) hereto included within the
Share Consideration that would have otherwise become freely transferable upon
the first anniversary of the Closing shall be included by Buyer in such
offering."
3. CLOSING.
Section 3(a) of the Stock Purchase Agreement shall hereby be amended and
restated in its entirety to read as follows:
"(a) TIME AND PLACE. The closing (the "Closing") of the purchase and
sale of the Shares shall be held at a mutually agreed upon location at 10:00
a.m. on the later of (i) May 5, 1998 and (ii) the next U.S. business day,
that is not a banking holiday, following the satisfaction of all of the
conditions to the Closing set forth in Section 9. The date on which the
Closing shall occur is hereinafter referred to as the "Closing Date"."
4. PROHIBITED ACTIVITIES
Section 6(j) of the Stock Purchase Agreement shall hereby be amended by
replacing the number "1%" appearing in the second full paragraph thereof with
the number "10%", and by adding the following proviso to the end of such
paragraph: "; and provided further that such Seller's investment in such
stock is of a passive nature, and such Seller is not an officer, director,
employee, consultant, agent or acting in any other similar capacity on behalf
of such corporation or having any other contractual or similar relationship
with such corporation".
5. SCHEDULES
Schedule 4(f) to the Stock Purchase Agreement is hereby amended by
adding thereto the following: "100% of the outstanding capital stock of
Xxxxx Signal Processing Inc., a New Jersey corporation, which is currently
inactive, and has no liabilities (contingent or otherwise) or assets in
excess of US $1,000.00."
Schedule 4(t) to the Stock Purchase Agreement is hereby amended by
replacing the amount "$50,000" with the amount "$40,000" and by adding to the
end thereof the following: ", which amount shall be repaid within 30 days of
the Closing."
6. TERMINATION.
Section 15(a)(iv) of the Stock Purchase Agreement shall hereby be
amended and restated in its entirety to read as follows:
"(iv) by the Sellers or the Buyer, if the Closing does not occur on or
prior to May 27, 1998; provided, however, that the right to terminate this
Agreement pursuant to this Section 15(a)(iv) shall not be available to any
Seller or the Buyer, as the case may be, if such party has failed to perform
any of its obligations under this Agreement; or"
7. AMENDMENT TO REGISTRATION RIGHTS AGREEMENT.
The form of Registration Rights Agreement attached as Schedule 9(b)(iv)
to the Stock Purchase Agreement shall hereby be amended by (i) replacing the
word "five" in the third Recital thereof with the word "three" and (ii)
deleting clause (e) of Section 8 thereof in its entirety.
8. AMENDMENT TO ESCROW AGREEMENT.
Section 13 of the form of Escrow Agreement attached as Schedule 2(e) to
the Stock Purchase Agreement is hereby amended by adding the following
sentence at the end thereof: "The parties agree that the payment by the
respective Sellers of amounts owing to the Escrow Agent hereunder shall be
paid for their account by Xxxxxx by the setting-off of payments to become due
and owing by Xxxxxx to such Sellers under the Promissory Notes executed by
Xxxxxx and delivered to the respective Sellers as of this date in accordance
with the provisions of the Stock Purchase Agreement."
9. EFFECT OF AMENDMENTS.
Except as specifically set forth in this Amendment, the provisions of
the Stock Purchase Agreement, the Registration Rights Agreement and the
Escrow Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above.
XXXXXX ELECTRONICS CORPORATION XXXXX SIGNAL PROCESSING, LTD.
By ______________________________ By _____________________________
Name: Name:
Title: Title:
XXXXXX XXXXXX REMANO B.V.
______________________________ By _____________________________
Name:
Title:
VENTNOR LLC MORE CAPITAL SERVICES, INC.
By _____________________________ By ______________________________
Name: Name:
Title: Title:
CHERRY HILL LLC ZE'XX XXXXXXX
By _____________________________ ________________________________
Name:
Title:
XXXXX LLC XXXXXX XXXXXXX
By _____________________________ _________________________________
Name:
Title:
KNIGHTHAWK INVESTMENT LLC XXXX XXXXXX
By _____________________________ _________________________________
Name:
Title:
SCHEDULE 2(d)(iii)
SHARE RELEASE SCHEDULE UPON PUBLIC OFFERING OF XXXXXX SHARES
Aggregate Amount Public Offering Aggregate Amount of
of Shares Offered Price per Share Xxxxxx Shares
Released
----------------- ---------------
----------------------
1,000,000 shares $35/share or more 360,000 shares
1,000,000 shares $30-$35/share 253,333 shares
1,000,000 shares $25-$30/share 104,000 shares
