Exhibit 2.3
STOCK PURCHASE AND CONSENT AGREEMENT
AGREEMENT dated as of March 8, 1999 among Condor Systems, Inc., a
California corporation (the "Company"), WDC Stock Acquisition Corp., a
California corporation ("Other Sub"), each of the individuals listed on the
signature pages hereto (each of such individuals, a "Shareholder", and
collectively, the "Shareholders"), and, solely for purposes of Sections 3.01,
3.02, 3.04, and 3.05 (other than 3.05(a), 3.05(b) and 3.05(f)) hereof, Xxxxxxx
Capital L.P., Xxxxxxx Capital "B" L.P., and Strategic Entrepreneur Fund, L.P.
(the "Xxxxxxx Holders").
WHEREAS, it is a condition to the willingness of WDC Acquisition
Corp. ("Merger Sub") to enter into an Agreement and Plan of Merger (the
"Merger Agreement"), among the Company, Merger Sub, and certain shareholders
as set forth therein that this Agreement be entered into;
WHEREAS, certain Shareholders desire to sell, prior to the Merger,
certain shares of Class A and Class B Common Stock of the Company, and Other
Sub is willing to purchase such shares for a price of $4.57785979 per share of
Class A Common Stock, and a price of $0.15922254 per share of Class B Common
Stock, upon the terms and subject to the conditions provided herein;
WHEREAS, certain Shareholders desire to roll over certain shares of
Class A and Class B Common Stock into shares of the surviving corporation in
the Merger, which rollover will be effected pursuant to the Merger Agreement
and the Merger (each such Shareholder, a "Rollover Shareholder");
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Merger Agreement.
The following terms, as used herein, have the following meanings:
"Escrow Agent" means a financial institution to be agreed upon prior
to Closing by Other Sub and the Company.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the basis of the
representations and warranties and agreements contained herein and subject to
the conditions contained herein and in the Merger Agreement, each Shareholder
party hereto hereby agrees to sell to Other Sub, and Other Sub hereby agrees
to purchase from such Shareholder: (a) the number of shares of Class A Common
Stock set forth opposite such Shareholder's name under the column "Class A
Common Stock" on Section 2.02 of the Disclosure Schedule to the Merger
Agreement (the "Disclosure Schedule") and (b) the number of shares of Class B
Common Stock set forth opposite such Shareholder's name under the column
"Class B Common Stock" on Section 2.02 of the Disclosure Schedule. The
aggregate purchase price to be paid in cash by Other Sub for the Company Stock
sold by each such Shareholder hereunder is set forth opposite such
Shareholder's name under the column "Total Purchase Price" on Section 2.02 of
the Disclosure Schedule (with respect to such Shareholder, the "Total Purchase
Price").
SECTION 2.02. Delivery to Escrow Agent. No later than 40 days after
the date hereof, each Shareholder set forth on Section 2.02 of the Disclosure
Schedule shall deliver to the Escrow Agent certificates for the Company Stock
set forth opposite such Shareholder's name on Section 2.02 of the Disclosure
Schedule, duly endorsed or accompanied by stock powers duly endorsed in blank,
with any required transfer stamps affixed thereto, pursuant to the Escrow
Agreement attached as Exhibit A hereto (the "Escrow Agreement"). If the Merger
Agreement is terminated in accordance with its terms, the Company Stock so
deposited shall be returned to such Shareholders.
SECTION 2.03. Closing. The closing of the purchase and sale hereunder
shall take place after the Investment and prior to the Effective Time, at a
closing at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000 (the "Closing"):
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(a) Other Sub shall deliver to the Escrow Agent (for distribution to
the Shareholders listed on Section 2.02 of the Disclosure Schedule), the
aggregate Total Purchase Price to be received by all such Shareholders in
respect of the Company Stock set forth opposite the names of such Shareholders
on such Schedule, by a wire transfer of immediately available funds to an
account to be specified by the Escrow Agent to Other Sub not less than three
business days prior to Closing.
(b) Simultaneously with such wire transfer to the Escrow Agent, the
Escrow Agent shall deliver to Other Sub certificates for the Company Stock set
forth opposite the name of such Shareholders on Section 2.02 of the Disclosure
Schedule, duly endorsed or accompanied by stock powers duly endorsed in blank,
with any required transfer stamps affixed thereto.
ARTICLE 3
CONSENT TO TRANSACTIONS; WAIVER AND TERMINATION OF EXISTING
SHAREHOLDERS' AGREEMENT; GRANTS OF PROXIES
SECTION 3.01. General Acknowledgment and Consent. (a) Each
Shareholder and each Xxxxxxx Holder severally represents and warrants to Other
Sub and the Company that it has read this Agreement, the Escrow Agreement and
the Merger Agreement, and hereby consents to all of the transactions
contemplated hereby and thereby.
(b) Each Shareholder and each Xxxxxxx Holder acknowledges and agrees
that pursuant to this Agreement and the Merger Agreement, certain holders of
Class A Common Stock and Class B Common Stock will receive cash in the Merger
and others will receive Surviving Corporation Shares (as defined herein) and
as a result will receive different consideration in the Merger.
SECTION 3.02. Unanimous Consent of Series A Preferred Stock. The
Xxxxxxx Holders, as record holders of all of the issued and outstanding Series
A Preferred Stock, hereby consent to and adopt, for purposes of all approvals
required to be given by holders of Series A Preferred Stock voting or
consenting as a separate class and voting or consenting as a single class with
all holders of Company Stock, pursuant to Section 603 of the General
Corporation Law of the State of California, the following resolution, waive
any notice required by such Section, and direct that this Consent be filed
with the minutes of proceedings of stockholders of the Company:
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RESOLVED, that the Agreement and Plan of Merger dated as of March 8,
1999 among the Company, Merger Sub, and certain shareholders as set
forth therein, and the transactions contemplated thereby, including
the Merger, are hereby approved in all respects.
SECTION 3.03. Unanimous Consent of Class B Common Stock. The
Shareholders who are record holders of Class B Common Stock, as record holders
of such Class B Common Stock, hereby consent to and adopt, for purposes of all
approvals required to be given by holders of Class B Common Stock voting or
consenting as a separate class and voting or consenting as a single class with
all holders of Company Stock, pursuant to Section 603 of the General
Corporation Law of the State of California, the following resolution, waive
any notice required by such Section, and direct that this Consent be filed
with the minutes of proceedings of stockholders of the Company:
RESOLVED, that the Agreement and Plan of Merger dated as of March 8,
1999 among the Company, Merger Sub, and certain shareholders as set
forth therein, and the transactions contemplated thereby, including
the Merger, are hereby approved in all respects.
SECTION 3.04. Waiver and Termination of Existing Shareholders'
Agreement. To the extent necessary to effectuate the transactions contemplated
by this Agreement and the Merger Agreement, each relevant party hereto hereby
waives any rights that it may have under the Shareholders' Agreement dated as
of October 15, 1996 among the Company, the Xxxxxxx Holders, and the other
persons set forth on the signature pages thereto (the "Existing Shareholders'
Agreement") arising out of or in connection with such transactions including
without limitation all rights of first offer and tag-along rights.
Furthermore, each relevant party hereto agrees that effective upon the Closing
of the Merger, the Existing Shareholders' Agreement shall terminate and be of
no further force and effect, and no party thereto shall have any further
rights thereunder.
SECTION 3.05. Irrevocable Proxy; No Appraisal; No Transfer; Escrow
Agreement Power of Attorney. (a) Each Shareholder hereby irrevocably appoints
Xxxxxx X. Xxxxx XX and Xxxx X. Xxxxxxx (who are acting as nominees of Other
Sub for this purpose) and each of them singly, with full power of substitution
(each, a "Proxy Holder") to be its proxy and to vote all of such Shareholder's
Company Stock for such Shareholder on all matters relating to the Merger
Agreement and the transactions contemplated thereby, until and unless the
Merger Agreement is terminated in accordance with its terms. Other Sub hereby
appoints Xxxxxx X. Xxxxx XX and Xxxx X. Xxxxxxx as its nominees for purposes
of acting as
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the Proxy Holders. Specifically, each Shareholder irrevocably directs the Proxy
Holders until such time:
(i) to vote at any shareholder meetings or adjournments
thereof, or give its written consent with respect to, the Company
Stock of such Shareholder to approve and adopt the Merger Agreement,
the Merger and the other transactions contemplated hereby; and
(ii) to vote such Shareholder's Company Stock against the
approval of any other merger, consolidation, sale of assets,
reorganization, recapitalization, liquidation or winding up of the
Company or any other extraordinary transaction involving the Company
or any matters related to or in connection therewith, or any
corporate action relating to or the consummation of which would
either frustrate the purposes of, or prevent or delay the
consummation of, the transactions contemplated by the Merger
Agreement.
Xxxxxx X. Xxxxx XX and Xxxx X. Xxxxxxx each hereby accept the appointments and
direction provided for in this Section 3.05.
(b) Each Shareholder hereby agrees not to exercise any rights
(including, without limitation, under Section 1300 of the CGCL), and
irrevocably directs the Proxy Holders not to exercise any rights, to demand
appraisal of any of such Shareholder's Company Stock in connection with the
Merger.
(c) The parties hereto agree that if for any reason any party hereto
shall have failed to perform its obligations under this Section, then the
party seeking to enforce this Section against such non-performing party shall
be entitled to specific performance and injunctive and other equitable relief
against such non-performing party, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief. This
provision is without prejudice to any other rights or remedies, whether at law
or in equity, that any party hereto may have against any other party hereto
for any failure to perform its obligations under this Agreement.
(d) Each Shareholder and each Xxxxxxx Holder agrees to execute and
deliver any additional documents reasonably requested by Other Sub to complete
and effectuate the agreements contained in this Section.
(e) Except as contemplated by this Agreement and the Merger
Agreement, each Shareholder and each Xxxxxxx Holder agrees not to transfer any
of its
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Company Stock until and unless the Merger Agreement is terminated in
accordance with its terms.
(f) Each Shareholder constitutes and appoints Xxxxxx X. Xxxxx XX and
Xxxx X. Xxxxxxx, or either of them, as his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and xxxxx, to
sign the Escrow Agreement substantially in the form attached hereto as Exhibit
A.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder severally represents and warrants to Other Sub and the
Company, to the extent applicable to such Shareholder, that as of the date
hereof and as of the date of Closing:
SECTION 4.01. Existence and Power; Ownership. If such Shareholder is
a corporation, a trust, a limited liability company or a partnership, such
Person has been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of incorporation. Such Shareholder owns
beneficially and of record all of the Company Stock set forth opposite the
name of such Shareholder on Sections 2.02 and 2.09(b)(ii) of the Disclosure
Schedule, and such Shareholder has good and valid title to such Company Stock.
Upon the purchase of any shares of Company Stock from such Shareholder
pursuant to this Agreement, Other Sub will acquire valid title to such shares
free and clear of any Encumbrance and any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such Company Stock), other than limitations and restrictions under applicable
securities laws, and free of any options, warrants, purchase rights,
contracts, or other commitments.
SECTION 4.02. Authorization. The execution, delivery and performance
by such Shareholder of this Agreement and the Escrow Agreement are within such
Shareholder's power and authority, corporate or otherwise, and have been duly
authorized by all necessary action, corporate or otherwise, on the part of
such Shareholder. This Agreement and the Escrow Agreement constitute legally
valid and binding obligations of such Shareholder enforceable against such
Shareholder in accordance with their terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium or similar law
affecting creditors' rights generally and general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
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SECTION 4.03. Governmental Authorization. To the knowledge of such
Shareholder, the execution, delivery and performance by such Shareholder of
this Agreement and the Escrow Agreement require no action by or in respect of,
or filing with, any governmental body, agency, or official, except as may be
necessary as a result of any facts or circumstances relating solely to Other
Sub.
SECTION 4.04. Non-Contravention. The execution, delivery and
performance by such Shareholder of this Agreement and the Escrow Agreement do
not and will not (i) violate any organizational document of such Shareholder,
(ii) to the knowledge of such Shareholder, violate any material applicable
law, rule, regulation, judgment, injunction, order or decree, (iii) require
any material consent or other action by any Person, or constitute a default
under any material agreement or other instrument binding upon such Shareholder,
or (iv) result in the creation or imposition of any Lien on the Class A Common
Stock, Class B Common Stock, or Series A Preferred Stock of such Shareholder.
SECTION 4.05. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the best knowledge of such Shareholder,
threatened against or affecting, such Shareholder or any of its properties
before any court or arbitrator or any governmental body, agency or official
which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transaction contemplated by this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE ROLLOVER SHAREHOLDERS
Each Rollover Shareholder hereby severally makes the following
representations and warranties to Other Sub and the Company, to the extent
applicable to such Shareholder, as of the date hereof and as of the date of
Closing:
SECTION 5.01. Private Placement. (a) Such Rollover Shareholder is
acquiring the shares of the Surviving Corporation set forth opposite its name on
Section 2.09(b)(ii) of the Disclosure Schedule for investment for its own
account and not with a view to, or for sale in connection with, any
distribution thereof.
(b) Such Rollover Shareholder understands that (i) its
acquisition of shares of stock of the Surviving Corporation ("Surviving
Corporation Shares") pursuant to the Merger Agreement is intended to be exempt
from registration under the Securities Act and (ii) there is only a limited
market for
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such shares, and there can be no assurance that it will be able to sell or
dispose of such shares.
(c) Such Rollover Shareholder's financial situation is such
that such Rollover Shareholder can afford to bear the economic risk of holding
the relevant Surviving Corporation Shares to be acquired pursuant to the
Merger for an indefinite period of time, and such Rollover Shareholder can
afford to suffer the complete loss of the investment in the Surviving
Corporation Shares.
(d) Such Rollover Shareholder's knowledge and experience in
financial and business matters are such that it is capable of evaluating the
merits and risks of the investment in the Surviving Corporation Shares, or
such Rollover Shareholder has been advised by a representative possessing such
knowledge and experience.
(e) Such Rollover Shareholder understands that the Surviving
Corporation Shares to be acquired pursuant to the Merger are a speculative
investment which involves a high degree of risk of loss of the entire
investment therein, that there are substantial restrictions on the
transferability of the Surviving Corporation Shares as set forth in the
shareholders' agreement that will be executed on the Closing Date (a copy of
the term sheet of which is attached as an exhibit to the Merger Agreement),
and that for an indefinite period following the date hereof there will be no
(or only a limited) public market for the Surviving Corporation Shares and
that, accordingly, it may not be possible for such Rollover Shareholder to
sell the Surviving Corporation Shares in case of emergency or otherwise.
(f) Such Rollover Shareholder and its representatives,
including, to the extent it deems appropriate, its professional, financial,
tax and other advisors, have reviewed all documents provided to them in
connection with the investment in the Surviving Corporation Shares, and such
Rollover Shareholder understands and is aware of the risks related to such
investment.
(g) Such Rollover Shareholder and its representatives have
been given the opportunity to examine all documents and to ask questions of,
and to receive answers from, the Company and its representatives concerning
the terms and conditions of the acquisition of the Surviving Corporation
Shares and related matters and to obtain all additional information which such
Rollover Shareholder or its representatives deem necessary.
(h) Such Rollover Shareholder is an "accredited investor,"
as such term is defined in Regulation D under the Securities Act. Such
Shareholder
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has accurately completed the questionnaire given to such Shareholder, a form of
which is attached as Exhibit B hereto, and delivered it to Other Sub.
SECTION 5.02. Compliance with Section 25110 of the California
Corporations Code. Such Rollover Shareholder:
(a) either has a preexisting personal or business relationship with
the Company or any of its partners, officers, directors or controlling
persons, or by reason of its business or financial experience or the business
or financial experience of its professional advisors who are unaffiliated with
and who are not compensated by the Company or any affiliate or selling agent
of the Company, directly or indirectly, could be reasonably assumed to have
the capacity to protect its own interests in the transaction;
(b) is purchasing for its own account (or a trust account if it is a
trustee) and not with a view to or for sale in connection with any
distribution of the security; and
(c) is not making the purchase as a result of the publication of any
advertisement.
Furthermore, such Rollover Shareholder is one or more of the following:
(x) a person who occupies a position with the Company with duties
and authority substantially similar to those of an executive officer of a
corporation;
(y) a person who is receiving $150,000 or more of the Surviving
Corporation Shares in the transaction, and is any one of the following:
(i) a person who, or a person with a professional advisor who,
has the capacity to protect such person's interests in connection with
the transaction;
(ii) a person who is able to bear the economic risk of such
person's investment in the transaction; or
(iii) a person for whom the Surviving Corporation Shares to be
received in the transaction do not constitute over 10% of such
person's net worth or joint net worth with such person's spouse; or
(z) an individual whose net worth, or whose net worth with such
individual's spouse, at the Closing Date will exceed $1,000,000, or an
individual whose income, or whose joint income with such individual's spouse,
exceeded
9
$200,000 in each of the two most recent years and who reasonably expects an
income in excess of $200,000 in the current year, provided in either case that
such individual meets the provisions of subparagraph (i), (ii) or (iii) of
subsection (y) above. For the purposes of this subsection, the terms "income"
and "net worth" shall be interpreted in a manner consistent with the
interpretation of those terms as used in subsections (5) and (6) of Rule
230.501(a) under the Securities Act of 1933.
SECTION 5.03. Cash in Lieu of Stock. If, immediately prior to the
date of Closing, Other Sub is not satisfied that the issuance of Surviving
Corporation Shares to any Rollover Shareholder is exempt from registration
under all applicable federal and state securities laws, such Rollover
Shareholder agrees to receive Class A Cash Consideration or Class B Cash
Consideration, as applicable, in the Merger in exchange for its Company Stock
set forth on Section 2.09(b)(ii) of the Disclosure Schedule, instead of
Surviving Company Shares.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF OTHER SUB
Other Sub represents and warrants to each Shareholder that as of the
date hereof and as of the date of Closing
SECTION 6.01. Existence and Power. Other Sub is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of California.
SECTION 6.02. Authority; Binding Effect. The execution, delivery and
performance by Other Sub of this Agreement are within the corporate powers of
Other Sub and have been duly authorized by all necessary action on the part of
Other Sub. This Agreement constitutes a valid and binding agreement of Other
Sub, enforceable against Other Sub in accordance with its terms, subject to
the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or similar law affecting creditors' rights generally and general
principles of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
SECTION 6.03. Governmental Authorization. Except as set forth in the
Merger Agreement and the Disclosure Schedule with respect to Merger Sub, the
execution, delivery and performance by Other Sub of this Agreement require no
10
action by or in respect of, or filing with, any governmental body, agency or
official.
SECTION 6.04. Non-Contravention. Except as set forth in the Merger
Agreement and the Disclosure Schedule with respect to Merger Sub, the
execution, delivery and performance by Other Sub of this Agreement does not
and will not (i) violate any organizational document of Other Sub, (ii)
violate any material applicable law, rule, regulation, judgment, injunction,
order or decree, (iii) require any material consent or other action by any
Person, or constitute a default under any material agreement or other
instrument binding upon Other Sub, or (iv) result in the creation or
imposition of any lien on any material asset of Other Sub.
SECTION 6.05. Purchase for Investment. Other Sub acknowledges that
the Company Stock have not been registered under the Securities Act or any
state securities laws and that the purchase and sale of the Company Stock
contemplated hereby is to be effected pursuant to an exemption from the
registration requirements imposed by such laws. In this regard, Other Sub is
purchasing the Company Stock to be purchased by it hereunder for its own
account and not with a view to, or for sale in connection with, any
distribution thereof in violation of the Securities Act.
SECTION 6.06. Litigation. There is no material action, suit,
investigation or proceeding pending against or, to the knowledge of Other Sub,
threatened against or affecting Other Sub before any court or arbitrator or
any governmental body, agency or official which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the consummation of the
transactions contemplated hereby.
ARTICLE 7
CONDITIONS TO CLOSING
SECTION 7.01. Conditions to Obligations of Other Sub. The obligation
of Other Sub to consummate the transactions contemplated hereby is subject to
the satisfaction of the following conditions:
(a) All of the conditions to the obligations of Merger Sub
under the Merger Agreement, except for (i) the purchase of shares of
Company Stock pursuant to this Agreement and the ESOP Stock Purchase
11
Agreement and (ii) any approval of holders of Class A Common Stock,
shall have been either satisfied or waived.
(b) Each Shareholder shall have complied with its
obligations pursuant to Section 2.02 hereof to deliver its Company
Stock to the Escrow Agent.
(c) Other Sub shall have received certification signed by
each Shareholder to the effect that such Shareholder is not a
"foreign person" as defined in Section 1445 of the Code.
(d) The questionnaires filled out by each Shareholder shall
be true and correct in all material respects at and as of the Closing
Date.
SECTION 7.02. Conditions to Obligations of the Shareholders. The
obligation of the Shareholders to consummate the transactions contemplated
hereby is subject to the satisfaction of the following condition:
(a) All of the conditions to the obligations of the Company under
the Merger Agreement, except for (i) the purchase of shares of
Company Stock pursuant to this Agreement and the ESOP Stock Purchase
Agreement and (ii) any approval of holders of Class A Common Stock,
shall have been either satisfied or waived.
ARTICLE 8
TERMINATION
SECTION 8.01. Termination. If the Merger Agreement is terminated in
accordance with its terms, this Agreement is also terminated in its entirety
and the Escrow Agent shall return the Escrow Shares (as defined in the Escrow
Agreement attached as Exhibit A hereto) to the Shareholders who own such
shares.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Entire Agreement. This Agreement, together with the
Escrow Agreement and the other agreements contemplated hereby, constitutes the
entire agreement and understanding among the parties hereto and supersedes all
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prior agreements and understandings, both oral and written, among the parties
relating to the subject matter of this Agreement.
SECTION 9.02. Amendments and Waivers. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party hereto, or
in the case of a waiver, by the party or parties against whom the waiver is to
be effective.
SECTION 9.03. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, successors and assigns;
provided that no party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the consent of each other
party hereto, except that Other Sub may without consent assign its rights and
obligations hereunder to one or more of the following entities: DLJ Merchant
Banking Partners II, L.P., DLJ Merchant Banking Partners XX-X, X.X., XXX
Xxxxxxxx Xxxxxxxx XX, X.X., XXX Diversified Partners, L.P., DLJ Diversified
Partners-A, L.P., DLJMB Funding II, Inc., DLJ Millennium Partners, L.P., DLJ
Millennium Partners-A, L.P., DLJ EAB Partners, L.P., UK Investment Plan 1997
Partners, DLJ ESC II, L.P., and DLJ First ESC L.P.
SECTION 9.04. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard to
the conflicts of law rules of such state.
SECTION 9.05. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.06. Further Assurances. The Shareholders and Other Sub
agree that, from time to time, each of them will execute and deliver such
further instruments of conveyance and transfer and take all such other action
as may be necessary to carry out the transactions contemplated by the terms of
this Agreement and the terms of the Merger Agreement.
SECTION 9.07. Costs and Expenses. Each of the parties hereto shall
pay its own costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby, any amendment or supplement to or
modification of this Agreement, and any and all other documents furnished
pursuant to or in connection with this Agreement and the transactions
contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories (or, in the case
of parties that are not corporations, other authorized persons), as of the day
and year first above written.
CONDOR SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
WDC STOCK ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: President
XXXXXXX CAPITAL L.P. (as to Sections
3.01, 3.02, 3.04, and 3.05 (other
than 3.05(a), 3.05(b) and 3.05(f))
only)
BY XXXXXXX BROTHERS L.P., General
Partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
XXXXXXX CAPITAL "B" L.P. (as to
Sections 3.01, 3.02, 3.04, and 3.05
(other than 3.05(a), 3.05(b) and
3.05(f)) only)
BY XXXXXXX BROTHERS L.P., General
Partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
STRATEGIC ENTREPRENEUR FUND,
L.P. (as to Sections 3.01, 3.02,
3.04, and 3.05 (other than 3.05(a),
3.05(b) and 3.05(f)) only)
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
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SPOUSES OF SHAREHOLDERS: SHAREHOLDERS:
XXXXXX X. XXXXX XX
By: /s/ Xxxxx X. Xxxxx By: /s/ R.E. Young
---------------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxx Name: R.E. Xxxxx
XXXX X. XXXXXX
By: /s/ X.X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------------------------- ------------------------------------
Name: X.X. Xxxxxx Name: Xxxx X. Xxxxxx
XXXXXX X. XXXX
By: /s/ Xxxxx Xxxxxxxx-Xxxx By: /s/ Xxxxxx X. Xxxx
---------------------------------------- ------------------------------------
Name: Xxxxx Xxxxxxxx-Xxxx Name: Xxxxxx X. Xxxx
XXXXX X. XXXXXXXX
By: /s/ Xxxxxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------- ------------------------------------
Name: Xxxxxxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
XXXXXX X. XXXXXXXXX
By: /s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------- ------------------------------------
Name: Xxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
XXXX X. XXXXXXX
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
---------------------------------------- ------------------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
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SPOUSES OF SHAREHOLDERS: SHAREHOLDERS:
XXXX X. XXXX
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxx X. Xxxx
---------------------------------------- ------------------------------------
Name: Xxxxx X. Xxxx Name: Xxxx X. Xxxx
XXXXXXX X. XXXXXXXX
By: By: /s/ X.X. Xxxxxxxx
---------------------------------------- ------------------------------------
Name: Name: X.X. Xxxxxxxx
XXXXXXXX XXXXXXX
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------------- ------------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxxxx Xxxxxxx
XXXX XXXXX
By: /s/ illegible signature By: /s/ Xxxx X. Xxxxx
---------------------------------------- ------------------------------------
Name: Name: Xxxx X. Xxxxx
XXXX XXXXX
By: N/A By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------- ------------------------------------
Name: Name: Xxxxxxx X. Xxxxx
XXXXXX XXXXXX
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
16
SPOUSES OF SHAREHOLDERS: SHAREHOLDERS:
XXXXXXX XXXXXX
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxx
---------------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxx
XXXX XXX
By: By: /s/ Xxxxxxx X. Key
---------------------------------------- ------------------------------------
Name: Name: Xxxxxxx X. Key
3/3/99
XXXXXX XXXXXXX
By: By: /s/ illegible signature
---------------------------------------- ------------------------------------
Name: Name:
XXXXXXX XXXXXXX
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------- ------------------------------------
Name: Xxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
XXXXX XxXXXXXXX
By: /s/ Xxxxx X. XxXxxxxxx By: /s/ Xxxxx XxXxxxxxx
---------------------------------------- ------------------------------------
Name: Xxxxx X. XxXxxxxxx Name: Xxxxx XxXxxxxxx
XXXX XXXXXXXX
By: /s/ illegible signature By: /s/ J. Xxxxxxx Xxxxxxxx
---------------------------------------- ------------------------------------
Name: Name: J. Xxxxxxx Xxxxxxxx
17
SPOUSES OF SHAREHOLDERS: SHAREHOLDERS:
XXXXXXX XXXX
By: /s/ Xxx Xxxxx Xxxx By: /s/ Xxxxxxx Xxxx
---------------------------------------- ------------------------------------
Name: Xxx Xxxxx Xxxx Name: Xxxxxxx Xxxx
XXXXX XXXX
By: /s/ illegible signature By: /s/ Xxxxx Xxxx
---------------------------------------- ------------------------------------
Name: Name: Xxxxx Xxxx
XXXX XXXXXX
By: /s/ illegible signature By: /s/ Xxxx X. Xxxxxx
---------------------------------------- ------------------------------------
Name: Name: Xxxx X. Xxxxxx
XXXXXX XXXXXXXXXX
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
---------------------------------------- ------------------------------------
Name: Xxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxxxxxxx
XXXXXXX XXXXX
By: /s/ Xxxxxxxx X. Xxx By: /s/ Xxxxxxx Xxxxx
---------------------------------------- ------------------------------------
Name: Xxxxxxxx X. Xxx Name: Xxxxxxx Xxxxx
XXXXX XXXX
By: /s/ illegible signature By: /s/ Xxxxx Xxxx
---------------------------------------- ------------------------------------
Name: Name: Xxxxx Xxxx
18
SPOUSES OF SHAREHOLDERS: SHAREHOLDERS:
XXX XXXXXXX
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxx Xxxxxxx
---------------------------------------- ------------------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxx Xxxxxxx
XXXXXXX XXXXXXXXX
By: /s/ illegible signature By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------- ------------------------------------
Name: Name: Xxxxxxx Xxxxxxxxx
XXXXXXX XxXXXXX
By: By: /s/ Xxxxxxx XxXxxxx
---------------------------------------- ------------------------------------
Name: Name: Xxxxxxx XxXxxxx
XXXXX XxXXXXXX
By: /s/ Xxxxx XxXxxxxx By: /s/ illegible signature
---------------------------------------- ------------------------------------
Name: Xxxxx XxXxxxxx Name:
XXXXXX XXXXXX
By: /s/ illegible signature By: /s/ Xxxxxx Xxxxxx
---------------------------------------- ------------------------------------
Name: Name: Xxxxxx Xxxxxx
XXXXXXXX XXXXXX & XXXXXXX XXXXX
TRUSTEES OF THE YOUNG'S CHILDREN
1994 IRREVOCABLE TRUST DATED
12/28/94
By: /s/ illegible signature
------------------------------------
19
The Young's Children
1994 Irrevocable Trust
Dated 12/28/94
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Trustee
By:____________________________________
Name:
Title: Trustee
20
EXHIBIT A
ESCROW AGREEMENT
AGREEMENT dated as of ________ __, 1999 among AC Stock Acquisition
Corp., a California corporation ("Other Sub"), ______________ (the "Escrow
Agent"), and the Shareholders (as defined herein).
WHEREAS, it is a condition to the willingness of AC Acquisition Corp.
("Merger Sub") to enter into an Agreement and Plan of Merger (the "Merger
Agreement"), among the Company, Merger Sub, and certain shareholders as set
forth therein, that the Shareholders, Other Sub, and certain other parties
have entered into a Stock Purchase and Consent Agreement pursuant to which,
among other things, Other Sub shall purchase shares of Class A and Class B
Common Stock in Condor Systems, Inc., a Californian corporation (the
"Company") from the Shareholders (the "Stock Purchase and Consent Agreement");
WHEREAS, in accordance with Section 2.02 of the Stock Purchase and
Consent Agreement, the Company Stock to be sold are to be deposited in escrow
with the Escrow Agent within 40 days of the date of execution of the Stock
Purchase and Consent Agreement;
WHEREAS, the Escrow Agent has agreed to serve in accordance with the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants set forth herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Stock
Purchase and Consent Agreement and in the Merger Agreement.
2. Appointment of Escrow Agent. Other Sub and the Shareholders hereby
appoint the Escrow Agent to (i) accept and hold the Company Stock set forth on
Section 2.02 of the Disclosure Schedule, and to deliver such Company Stock
either to Other Sub or return them to the Shareholders in accordance with the
terms of the Stock Purchase and Consent Agreement and this Agreement and (ii)
if the Closing occurs, accept and hold the funds representing payment of the
Total Purchase Price in respect of such Company Stock, and deliver them to the
Shareholders in accordance with the terms of the Stock Purchase and Consent
Agreement and this Agreement. The Escrow Agent hereby accepts such
21
appointment and agrees to assume and perform the duties of Escrow Agent
pursuant to the terms and conditions of this Agreement.
3. Delivery of Escrow Shares and Total Purchase Price to Escrow
Agent. (a) In accordance with Section 2.02 of the Stock Purchase and Consent
Agreement, within 40 days after the execution of such agreement, each
Shareholder shall deliver to the Escrow Agent the Company Stock set forth
opposite the name of such Shareholder on Section 2.02 of the Disclosure
Schedule, duly endorsed or accompanied by stock powers duly endorsed in blank,
with any required transfer stamps affixed thereto (the "Escrow Shares").
(b) In accordance with Section 2.03 of the Stock Purchase and Consent
Agreement, if the Closing occurs Other Sub shall deliver to the Escrow Agent
on the date of Closing a wire transfer representing the Total Purchase Price
to be received by such Shareholders in respect of all Escrow Shares.
4. Delivery of Escrow Shares and Total Purchase Price By Escrow
Agent.
(a) If the Closing occurs, the Escrow Agent shall deliver all the
Escrow Shares to Other Sub on the date of Closing against confirmation of a
wire transfer of immediately available funds representing the aggregate Total
Purchase Price to be received by all the Shareholders set forth on Section
2.02 of the Disclosure Schedule in respect of such Escrow Shares; and shall
promptly thereafter distribute the Total Purchase Price with respect to each
such Shareholder to such Shareholder, as set forth in the Stock Purchase and
Consent Agreement.
(b) If the Merger Agreement is terminated in accordance with its
terms, the Escrow Agent shall return the Escrow Shares to the Shareholders who
own such Escrow Shares.
5. Liability of Escrow Agent; Indemnification. The Escrow Agent's
duties hereunder are only those as specified in this Agreement and the Stock
Purchase and Consent Agreement and are deemed to be purely ministerial in
nature. The Escrow Agent shall not be compelled to furnish a formal accounting
for the Escrow Shares other than to notify the Shareholders and Other Sub
concerning any deliveries of the Escrow Shares. The Escrow Agent shall not be
responsible for the genuineness of any document or signature and may rely
conclusively upon any notice, agreement, certification, authorization, release
or other written instrument reasonably believed by it to be genuine or to be
signed or to be presented by the proper person, or duly authorized or properly
made. The Escrow Agent will incur no liability under this Agreement except for
willful misconduct or gross negligence. Shareholders and Other Sub agree
jointly and
22
severally to hold the Escrow Agent harmless from any and all liabilities under
this Agreement, except no such indemnification shall be made for the Escrow
Agent's willful misconduct or gross negligence.
6. Term. The term of this Agreement shall commence as of the date
hereof and terminate upon the date of Closing, or upon the earlier
distribution of the Escrow Shares in accordance with the terms hereof.
6. Fee to the Escrow Agent. The Escrow Agent shall receive no amount
for services rendered under this Agreement.
7. Notices. All notices, requests, demands and other communications
under this Agreement shall be mailed, postage prepaid, registered mail, return
receipt requested, or delivered personally, addressed as follows:
If to Escrow Agent:
[ ]
With a copy to:
[ ]
If to Other Sub:
DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
With a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx, Esq.
If to the Shareholders:
Condor Systems, Inc.
0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx XX
23
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Esq.
And to:
Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx III, Esq.
8. Entire Agreement. This Agreement, together with the Merger
Agreement, the Stock Purchase and Consent Agreement, and the other agreements
contemplated thereby, constitutes the entire agreement and understanding among
the parties hereto and supersedes all prior agreements and understandings,
both oral and written, among the parties relating to the subject matter of
this Agreement.
9. Amendments and Waivers. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party hereto, or in the case
of a waiver, by the party or parties against whom the waiver is to be
effective.
10. Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the State of New York, without regard to the
conflicts of law rules of such state.
11. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, except that Other Sub may
without consent assign its rights and obligations hereunder to one or more of
the following entities: DLJ Merchant Banking Partners II, L.P., DLJ Merchant
Banking Partners XX-X, X.X., XXX Xxxxxxxx Xxxxxxxx XX, X.X., XXX Diversified
Partners, L.P., DLJ Diversified Partners-A, L.P., DLJMB Funding II, Inc., DLJ
Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ EAB Partners,
L.P., UK Investment Plan 1997 Partners, DLJ ESC II, L.P., and DLJ First ESC
L.P.
24
12. Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original, but all of which when taken together
will constitute one and the same instrument.
25
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement on the date first above stated.
_______________, as Escrow Agent
By: ___________________________________
Name:
Title:
WDC STOCK ACQUISITION CORP.
By: ___________________________________
Name:
Title:
THE SHAREHOLDERS
By: ___________________________________
Name:
Title: Attorney-in-Fact
26
EXHIBIT B
I. PLEASE INDICATE TYPE OF OWNERSHIP OF OLD
SECURITIES:
|_| Individual |_| Community Property (Arizona,
California, Idaho, Louisiana,
Nevada, New Mexico, Puerto Rico,
Texas, Washington or Wisconsin)
II. ACCREDITED INVESTOR SECTION
|_| 1. I have an individual net worth or joint net worth
with my spouse in excess of $1,000,000.
|_| 2. I have had an individual income in excess of
$200,000 in each of 1997 and 1998, or joint income
with my spouse in excess of $300,000 in each of
those years, and I reasonably expect to reach the
same level in 1999.
|_| 3. I am a director or executive officer (within the
meaning of Rule 501(f) under the Securities Act of
1933, as amended (the "Securities Act")) of Condor
Systems, Inc.
|_| 4. We are a bank as defined in Section 3(a)(2) of
the Securities Act or a savings and loan
association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act, acting in
our individual or fiduciary capacity.
|_| 5. We are an employee benefit plan within the
meaning of the Employee Retirement Income Security
Act of 1974, as amended, with total assets in
excess of $5,000,000, or if a self-directed plan,
with investment decisions made solely by persons
that are accredited investors.
|_| 6. We are a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the Surviving Corporation Shares, whose
purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) under the
Securities Act.
B-1
III. OTHER CERTIFICATIONS
By signing this Questionnaire, I certify the following:
(a) that my exchange of Company Stock for Suiting Corporation
Shares will be solely for my own account and not for the
account of any other person, or if we are a trust or a
trustee for a trust, for the account of the beneficiary or
beneficiaries of such trust;
(b) that the name, home address and taxpayer identification
number, and all other statements and certifications set
forth in or contained in this Questionnaire are true,
correct and complete; and
(c) that one of the following is true and correct (check one):
|_| (i) I am a United States citizen or resident of the
United States for United States federal income tax
purposes.
|_| (ii) I am neither a United States citizen nor a resident of
the United States for federal income tax purposes.
B-2
IV. GENERAL INFORMATION -- PLEASE FILL OUT
COMPLETELY
Name:__________________________________________________________________________
Social Security or Taxpayer Identification Number:_____________________________
Residence Address:_____________________________________________________________
Number and Street)
_______________________________________________________________________________
(City) (State) (Zip Code)
Residence Telephone Number:____________________________________________________
(Area Code) (Number)
Business Address:______________________________________________________________
(Number and Street)
_______________________________________________________________________________
(City) (State) (Zip Code)
Business Telephone Number:_____________________________________________________
(Area Code) (Number)
I prefer to have correspondence sent to: |_| Residence |_| Business
B-3
V. SIGNATURE
The undersigned represents that (a) he/she has read and understands
all information included with this Questionnaire, (b) the information
contained in this Questionnaire is complete and accurate and (c) he/she is
purchasing for his/her own account (or a trust account if the purchaser is a
trustee) for investment and not with a view to or for sale in connection with
any distribution of the offered securities, and (d) he/she will telephone
Condor Systems, Inc. (contact Xxxx X. Xxxxxxx, Chief Financial Officer at
408-879-2215) immediately if any material change in any of this information
occurs before the date of the Closing and will promptly send to Condor
Systems, Inc. written confirmation of such change.
---------------------------------, 1997
Date
---------------------------------------
Signature
---------------------------------------
Name (Please Type or Print)
---------------------------------------
Signature of Spouse if
Community Property State
---------------------------------------
Name of Spouse if
Community Property State
(Please Type or Print)
-------------------------------------------------------------------------------
IF YOU ARE MARRIED AND LIVE IN A COMMUNITY
PROPERTY STATE, BOTH YOU AND YOUR SPOUSE MUST SIGN THIS
QUESTIONNAIRE.
-------------------------------------------------------------------------------
B-4
