Exhibit 2.2
STOCK PURCHASE AGREEMENT
dated as of
May 26, 1999
among
Dendron Technology B.V.,
Fronos Technology B.V.
and
The XxxXxxx-Xxxxxxxxxx Corporation
ARTICLE I - PURCHASE, SALE & CLOSING
1.1 Sale of Purchased Shares by Sellers 1
1.2 Purchase of the Purchased Shares/Purchase Price 1
1.3 The Closing 2
ARTICLE II - SELLERS' REPRESENTATIONS AND WARRANTIES
2.1 Power and Authority 2
2.2 Stock 2
2.3 Authorization;No Conflicts 2
2.4 Sellers' Investment Intent 3
2.5 Merger Agreement Representations and Warranties 3
ARTICLE III - BUYER'S REPRESENTATIONS AND WARRANTIES
3.1 Merger Agreement Representations and Warranties 3
3.2 Investment Intent 3
ARTICLE IV - COVENANTS
4.1 Merger Agreement Covenants 4
4.2 Transfers 4
ARTICLE V - INDEMNIFICATION
5.1 Seller Indemnification Relating to this Agreement 4
5.2 Indemnification by Buyer 4
5.3 Survival 4
5.4 Procedure, Etc. 4
ARTICLE VI - CONDITIONS
6.1 Merger Agreement Conditions 5
6.2 Other Conditions 5
ARTICLE VII - TERMINATION
7.1 Termination 5
ARTICLE VIII - GENERAL
8.1 Incorporation from Merger Agreement 5
ARTICLE IX - DEFINITIONS
9.1 Merger Agreement Definitions 6
9.2 Other Definitions 6
Exhibits
Exhibit A Form of Ten-Year Notes
Exhibit B Form of Indenture
Exhibit C Form of Two-Year Notes
Exhibit D Form of Warrant Agreement
Exhibit E Form of Registration Rights Agreement
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is entered into as of May
26, 1999, among The XxxXxxx-Xxxxxxxxxx Corporation, a Delaware
corporation ("Buyer"), Dendron Technology B.V., a Dutch
corporation ("Dendron"), and Fronos Technology B.V., a Dutch
corporation ("Fronos") (Dendron and Fronos are collectively
referred to as "Sellers").
R E C I T A L S
WHEREAS, Dendron owns 8,942,460 Shares of MARC Analysis
Research Corporation, a California corporation ("Company"), and
Fronos owns 8,942,458 Shares;
WHEREAS, Dendron desires to sell to Buyer, and Buyer
desires to buy from Dendron, 5,162,844 Shares;
WHEREAS, Fronos desires to sell to Buyer, and Buyer
desires to buy from Fronos, 5,162,844 Shares;
WHEREAS, Sellers are also parties (in their capacities
as "Significant Shareholders"), along with Company, MSC Holdings
Co. II ("Merger Sub"), Buyer and Nearchos Irinarchos, to the
Agreement and Plan of Merger dated the date of this Agreement
(the "Merger Agreement") providing for the merger of Merger Sub
into Company immediately after the consummation of the stock
purchase contemplated by this Agreement (the "Stock Purchase");
and
WHEREAS, certain capitalized terms used in this
Agreement have the meanings given in Article IX; capitalized
terms used in this Agreement without separate definition have the
meanings given in the Merger Agreement.
A G R E E M E N T
In consideration of the mutual promises contained in
this Agreement and intending to be legally bound, the parties
agree as follows:
ARTICLE I - PURCHASE, SALE & CLOSING
1.1 Sale of Purchased Shares by Sellers. Each
Seller will sell 5,162,844 Shares to Buyer, for an aggregate of
10,325,688 Shares (the "Purchased Shares"). Sellers will
deliver the certificates evidencing the Purchased Shares to
Buyer at the closing of the Stock Purchase (the "Stock Purchase
Closing"). These certificates will be properly endorsed for
transfer to or accompanied by a duly executed stock power in
favor of Buyer and otherwise in a form acceptable for transfer
on Company's books. Sellers will pay any Taxes payable with
respect to the transfer of the Purchased Shares.
1.2 Purchase of the Purchased Shares/Purchase Price.
Subject to the terms and conditions of this Agreement, including
Sections 1.3 and 1.4, Buyer will, at the Closing, purchase the
Purchased Shares from Sellers and pay each Seller a purchase
price of:
(a) 8% subordinated promissory notes in an aggregate
principal amount of $5,500,000 due on the 10th anniversary of
the Closing (the "Ten-Year Notes"), to be issued substantially
in the form of Exhibit A under an indenture substantially in the
form of Exhibit B (the "Indenture");
(b) 8% subordinated promissory notes in the aggregate
principal amount of $1,618,006 due on the second anniversary of
the Closing (the "Two-Year Notes") to be issued substantially in
the form of Exhibit C under the Indenture;
(c) 7 7/8% convertible subordinated notes due 2004 in
the aggregate principal amount of $1,000,000 (the "Convertible
Notes") to be issued under the Indenture dated as of August 18,
1994 between Buyer and Chemical Trust Company of California (the
"1994 Indenture"); and
(d) warrants for the purchase of 700,000 shares of
common stock of Buyer (the "Warrants") issued pursuant to a
Warrant Agreement in substantially the form of Exhibit D
(the "Warrant Agreement").
The Ten-Year Notes, Two-Year Notes, Convertible Notes, and
Warrants deliverable to Sellers are collectively referred to as
the "Purchase Price."
1.3 The Closing. The Stock Purchase Closing will
take place at the offices of O'Melveny & Xxxxx LLP, 000 Xxxxx
Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, beginning at 10:00 A.M.,
Los Angeles time, immediately before the Closing of the Merger.
At the Stock Purchase Closing, Sellers will deliver to Buyer
certificates representing the Purchased Shares; Buyer will
deliver the Purchase Price; and the Parties will deliver to
each other duly executed counterparts of the Registration
Rights Agreement.
ARTICLE II - SELLERS' REPRESENTATIONS AND WARRANTIES
Sellers jointly and severally represent, warrant and
agree that:
2.1 Power and Authority. Each Seller is a corporation duly
organized, validly existing and in good standing under the laws
of The Netherlands. Each Seller has all necessary corporate
power and authority to carry on its business as now being
conducted. Each Seller has the necessary corporate power and
authority to execute, deliver and perform this Agreement and any
related agreement to which it is a party.
2.2 Stock. Dendron and Fronos own 8,942,460 and 8,942,458
Shares, respectively, beneficially and of record, and free of all
Encumbrances. At the Stock Purchase Closing, Buyer will acquire
good and marketable title to and complete ownership of the
Purchased Shares, free of any Encumbrance.
2.3 Authorization; No Conflicts.
(a) Authorization. The execution, delivery and
performance of this Agreement and any related agreements by
Sellers has been duly and validly authorized by their respective
Boards of Directors and by all other necessary corporate action
on their part. This Agreement and any related agreements
constitute the legally valid and binding obligation of Sellers,
enforceable against Sellers in accordance with their terms
except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
and equitable principles relating to or limiting creditors
rights generally.
(b) No Conflicts. Except as stated in Schedule 2.3,
neither the execution and delivery of this Agreement and any
related agreements nor the consummation or performance of the
Transactions, directly or indirectly (with or without notice or
lapse of time):
(i) contravene, conflict with or result in a
violation of (A) any provision charter documents or bylaws
of either Seller or (B) any resolution adopted by the boards
of directors or stockholders of either Seller;
(ii) contravene, conflict with or result in a
violation of, or give any Governmental Entity or other
Person the right to challenge, the Stock Purchase or any
related agreements or to exercise any remedy or obtain any
relief under, any Law or Order to which either Seller may be
subject; or
(iii) violate or will violate or result or will
result in a breach of any of the terms and provisions of,
or constitute or will constitute a default under, or
conflict or will conflict with, or result or will result
in any augmentation or acceleration of rights, benefits or
obligations of any party under, any Contract to which any
Seller is a party or is bound, or any Order applicable to
Sellers.
(c) No Approval or Permit. Sellers are not, and will
not be, required to give any notice to, or obtain any Permit
or Approval from, any Person in connection with the
execution, delivery and performance of this Agreement.
2.4 Sellers' Investment Intent. Sellers are acquiring
the Ten-Year Notes, the Two-Year Notes and the Warrants for their
own accounts for investment purposes only and not with a present
view to, or for sale in connection with, any distribution of
those instruments.
2.5 Merger Agreement Representations and Warranties.
The representations and warranties made by Sellers in Article II
of the Merger Agreement are incorporated in this Agreement by
this reference, and are confirmed as the representations and
warranties of Sellers for purposes of this Agreement.
ARTICLE III - BUYER'S REPRESENTATIONS AND WARRANTIES
3.1 Merger Agreement Representations and Warranties.
Buyer's representations and warranties in Article III of the
Merger Agreement are incorporated in this Agreement by this
reference, and are confirmed as the representations and
warranties of Buyer for purposes of this Agreement.
3.2 Investment Intent. Buyer is acquiring the
Purchased Shares for its own account for investment purposes
only and not with a view to or for sale in connection with any
distribution of the Purchased Shares.
ARTICLE IV - COVENANTS
4.1 Merger Agreement Covenants. The covenants of
Sellers and Buyer in Articles IV and V of the Merger Agreement
are hereby incorporated in this Agreement by this reference, and
are confirmed as covenants of Sellers and Buyer for purposes of
this Agreement.
4.2 Transfers. Neither Seller will sell, transfer
or otherwise dispose of the Ten-Year Notes, the Two-Year Notes
or the Warrants (or the underlying shares of Buyer common stock)
except in compliance with applicable securities Laws. Buyer will
not sell, transfer or otherwise dispose of the Purchased Shares
except in compliance with applicable securities Laws.
ARTICLE V - INDEMNIFICATION
5.1 Seller Indemnification Relating to this Agreement.
Sellers will jointly and severally indemnify, save and hold
harmless Buyer and its directors, officers, employees,
affiliates, agents and assigns (each an "Indemnified Buyer
Party"), from and against any and all Losses (whether or not
arising out of third-party claims) incurred in connection with,
arising out of, resulting from or incident to (a) any breach of
any representation or warranty made by Sellers in Sections 2.1,
2.2, 2.3 and 2.4 of this Agreement; or (b) any breach of any
covenant or agreement made by Sellers in Section 4.2 of this
Agreement. These indemnification obligations are separate from,
and not subject to the survival or maximum indemnity limitations
under, the indemnification provisions of the Merger Agreement.
Sellers will notify Buyer of any matters covered by this Section
5.1 upon discovery or receipt of notice thereof (other than from
Buyer), whether before or after the Closing.
5.2 Indemnification by Buyer. Buyer will indemnify,
save and hold harmless Sellers and their respective directors,
officers, employees, affiliates, agents and assigns (each an
"Indemnified Seller Party" and together with an Indemnified
Buyer Party an "Indemnified Party") from and against any and
all Losses (whether or not arising out of third-party claims)
incurred in connection with, arising out of, resulting from or
incident to (a) any breach of any representation or warranty
made by Buyer in this Agreement (apart from those incorporated
by reference to the Merger Agreement); or (b) any breach of any
covenant or agreement made by the Buyer in this Agreement.
These indemnification obligations are separate from, and not
subject to the survival or maximum indemnity limitations under,
the indemnification provisions of the Merger Agreement. Buyer
will notify Sellers of any matters covered by this Section 5.2
upon discovery or receipt of notice thereof (other than from
Sellers), whether before or after Closing.
5.3 Survival. The foregoing indemnification
obligations will survive for the shorter of the applicable
statute of limitations or 10 years.
5.4 Procedure, Etc. Sections 8.6(c) and 8.7 of the Merger
Agreement are incorporated by this reference into this Agreement
(but only for the purpose of stating the procedures for seeking
indemnification and the effect of insurance, and not to alter the
nature or scope of the indemnification rights and obligations in
this Agreement).
ARTICLE VI - CONDITIONS
6.1 Merger Agreement Conditions. The conditions stated in
Article VI of the Merger Agreement (except the one in Section
6.2(e)) are incorporated in this Agreement by this reference, and
are confirmed by Sellers and Buyer as the conditions to their
respective obligations under this Agreement.
6.2 Other Conditions. In addition, the obligations of the
parties under this Agreement are subject to the execution and
delivery of the documents called for specifically by this
Agreement, including the Registration Rights Agreement.
ARTICLE VII - TERMINATION
7.1 Termination. This Agreement is subject to
termination only if, as and when the Merger Agreement is
terminated in accordance with, and with the consequences
provided in, Article VII of the Merger Agreement (with the
references in that Article to "this Agreement" being deemed
for purposes of this Agreement to refer to this Agreement, not
the Merger Agreement).
ARTICLE VIII - GENERAL
8.1 Incorporation from Merger Agreement. The general
provisions of Article IX of the Merger Agreement are
incorporated by this reference, except that (a) references in
that Article to "this Agreement" will be deemed to be to this
Agreement; and (b) notices to Sellers under this Agreement must
be sent as follows and will be deemed given (i) when delivered
by hand, (ii) sent by telecopier to the applicable number
specified in, or pursuant to this Section 8.1, and an
appropriate answerback is received, or (iii) when received if
sent by a nationally-recognized courier or delivery service
(receipt requested).
If to Dendron or Fronos, addressed to:
Dendron Technology B.V. or Fronos Technology B.V.
X/X Xxxxxxxx Xxxxxxxxxx
Xxxxxxxxx 0
X-000 00 Xxxxxx
Xxxxxx
With a copy (which will not constitute notice or
service of process) to:
Xxxxxx & Xxxxx LLP
000 Xxxxxx Xxx
Xxxx Xxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
ARTICLE IX - DEFINITIONS
9.1 Merger Agreement Definitions. Section 10.1 of
the Merger Agreement is incorporated in this Agreement by
this reference. Capitalized terms used in this Agreement,
and not otherwise defined, have the meanings given in the Merger
Agreement.
9.2 Other Definitions.
"Agreement" means this Agreement as amended or
supplemented, together with all Exhibits, Schedules and
provisions attached to, or incorporated by reference in, this
Agreement.
"1994 Debenture" is defined in Section 1.2(c).
"Convertible Notes" is defined in Section 1.2(c).
"Indemnified Buyer Party" is defined in Section 5.1.
"Indemnified Party" is defined in Section 5.2.
"Indemnified Seller Party" is defined in Section 5.2.
"Indenture" is defined in Section 1.2(b).
"Merger Agreement" is defined in the Recitals.
"Notes" means the Ten-Year Notes, Two-Year Notes and
Convertible Notes.
"Purchase Price" is defined in Section 1.2.
"Purchased Shares" is defined in Section 1.1.
"Registration Rights Agreement" means the registration
rights agreement between Buyer and Sellers dated as of the date
of this Agreement in the form of Exhibit E.
"Sellers" is defined in the recitals.
"Stock Purchase is defined in the Recitals.
"Stock Purchase Closing" is defined in Section 1.1.
"Ten-Year Notes" is defined in Section 1.2(a).
"Two-Year Notes" is defined in Section 1.2(b).
"Warrants" is defined in Section 1.2(d).
"Warrant Agreement" is defined in Section 1.2(d).
IN WITNESS WHEREOF, each of the parties has caused
this Agreement to be executed by its duly authorized
officers as of the day and year first above written.
THE XXXXXXX-XXXXXXXXXX CORPORATION
By: /s/ Xxxxx Xxxxx, Xx.
----------------------------
Name: Xxxxx Xxxxx, Xx.
------------------------
Title: Chief Executive Officer
-----------------------
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
------------------------
Title: Chief Financial Officer
and Secretary
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DENDRON TECHNOLOGY B.V.
By: /s/ Nearchos Irinarchos
-------------------------
Name: Nearchos Irinarchos
---------------------
Title: General Manager
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FRONOS TECHNOLOGY B.V.
By: /s/ Nearchos Irinarchos
-------------------------
Name: Nearchos Irinarchos
---------------------
Title: General Manager
--------------------
