Exhibit 2.4
EXECUTION COPY
ESOP STOCK PURCHASE AGREEMENT
AGREEMENT dated as of March __, 1999 among Condor Systems, Inc., a
California corporation (the "Company"), WDC Stock Acquisition Corp., a
California corporation ("Other Sub") and Xxxxx Fargo Bank, N.A., as Trustee
(the "Trustee") under the Company's Employee Stock Ownership Trust Agreement
between the Company and the Trustee, as amended (the "Trust Agreement").
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, the Trustee desires to sell, prior to the Merger (and prior
to the approval of the Merger by the holders of Class A Common Stock), all of
the shares of Class A Common Stock held by the Company's Employee Stock
Ownership Plan (the "Plan"), and Other Sub is willing to purchase such shares
for a price of $4.57785979 per share of Class A Common Stock, upon the terms
and subject to the conditions provided herein;
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:
"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, the Trustee hereby
agrees to sell to Other Sub, and Other Sub hereby agrees to purchase from the
Trustee, 3,371,837 shares of Class A Common Stock (the "ESOP Shares"), together
with any rights the Trustee may have as record holder of the ESOP Shares. The
aggregate purchase price to be paid in cash by Other Sub for the ESOP Shares
sold by the Trustee hereunder is $15,435,797 (the "Total Purchase Price").
SECTION 2.02. 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"):
(a) Other Sub shall deliver to the Trustee the Total Purchase Price,
by a wire transfer of immediately available funds to an account to be specified
by the Trustee to Other Sub not less than three business days prior to Closing.
(b) Simultaneously with such wire transfer, the Trustee shall deliver
to Other Sub certificates for the ESOP Shares, duly endorsed or accompanied by
stock powers duly endorsed in blank, with any required transfer stamps affixed
thereto.
(c) Provided that the Merger occurs, the Plan shall thereafter be
entitled to (i) the $400,000 fee set forth in Section 7.10(b) of the Merger
Agreement and (ii) the percentage set forth in Schedule 2.14 of the Merger
Agreement of any payments made pursuant to Section 2.14 of the Merger Agreement
(but only to the extent actually made). Any payments made pursuant to this
section (c) shall be allocated and/or distributed to the persons who are
participants in the Plan as of the day immediately prior to the Closing, pro
rata based on the number of shares of Company Stock allocated to them in the
Plan as of such date, pursuant to the provisions of the Plan.
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ARTICLE 3
WAIVER AND TERMINATION OF EXISTING SHAREHOLDERS' AGREEMENT; NO
TRANSFER
SECTION 3.01. Waiver and Termination of Existing Shareholders'
Agreement; No Transfer. (a) To the extent necessary to effectuate the
transactions contemplated by this Agreement and the Merger Agreement, the
Trustee hereby waives any rights that it or the Plan may have under the
Shareholders' Agreement dated as of October 15, 1996 among the Company, the
Plan, and the other persons set forth on the signature pages thereto (the
"Existing Shareholders' Agreement") arising out of or in connection with such
transactions. Furthermore, the Trustee 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.
(b) Except as contemplated by this Agreement, the Trustee agrees not
to transfer any of the ESOP Shares, or grant any proxies or powers of attorney
with respect to the ESOP Shares, until and unless the Merger Agreement is
terminated in accordance with its terms.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE
The Trustee represents and warrants to Other Sub that as of the date
hereof and as of the date of Closing:
SECTION 4.01. Existence and Power; Ownership. The Trustee is the
record owner of all of the ESOP Shares, and the Trustee has good and valid
title to such ESOP Shares. Upon the purchase of the ESOP Shares pursuant to
this Agreement, Other Sub will acquire valid title to such Shares free and
clear of any Encumbrance or any other limitation or restriction (including any
restriction on the right to vote, sell or otherwise dispose of such ESOP
Shares), 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 the Trustee of this Agreement are within such Trustee's power and authority,
corporate or otherwise, and have been duly authorized by all necessary action,
corporate or otherwise. This Agreement constitutes a legally valid and binding
obligation of the Trustee and the Plan enforceable against the Trustee and the
Plan in accordance with its terms, subject to the effect of any applicable
bankruptcy, reorganization, insolvency, moratorium or similar law affecting
creditors' rights
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generally and general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by the Trustee of this Agreement requires 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 the Trustee of this Agreement does not and will not (i) violate
any organizational document of the Trustee or the Plan, (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 the Trustee or the Plan, or (iv) result in the creation or imposition of
any Encumbrance on the ESOP Shares.
SECTION 4.05. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the best knowledge of the Trustee, threatened
against or affecting, the Trustee or the Plan 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.
Section 4.06. Determination by Trustee. The Trustee has determined,
in the exercise of its reasonable judgment, that, assuming the receipt by the
Trustee of the fairness opinion described in Article VI, the transactions
contemplated hereby are in the best interest of the Participants and are in
compliance with all applicable provisions of the Code and ERISA.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF OTHER SUB
Other Sub represents and warrants to the Trustee that as of the date
hereof and as of the date of Closing:
SECTION 5.01. 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 5.02. 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
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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 5.03. Governmental Authorization. Except as set forth in the
Merger Agreement and the Disclosure Schedule thereto with respect to Merger
Sub, the execution, delivery and performance by Other Sub of this Agreement
require no action by or in respect of, or filing with, any governmental body,
agency or official.
SECTION 5.04. Non-Contravention. Except as set forth in the Merger
Agreement and the Disclosure Schedule thereto 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 5.05. Purchase for Investment. Other Sub acknowledges that
the ESOP Shares have not been registered under the Securities Act or any state
securities laws and that the purchase and sale of the ESOP Shares 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
ESOP Shares 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 5.06. 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.
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ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.01. 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 Stock Purchase and Consent
Agreement and (ii) any approval of holders of Class A Common Stock, shall
have been either satisfied or waived.
SECTION 6.02. Conditions to Obligations of the Trustee. The
obligation of the Trustee 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 Stock Purchase and
Consent Agreement and (ii) any approval of holders of Class A Common
Stock, shall have been either satisfied or waived.
(b) The Trustee shall have received an updated fairness opinion
from Valuation Research Corporation dated as of the Closing Date
confirming, in all material respects, the fairness opinion that has been
rendered to the Trustee as of the date hereof (a copy of which has been
made available to Other Sub).
ARTICLE 7
TERMINATION
SECTION 7.01. Termination. If the Merger Agreement is terminated in
accordance with its terms, this Agreement is also terminated in its entirety.
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ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Entire Agreement. This Agreement, together with the
other agreements contemplated hereby, 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.
SECTION 8.02. 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 8.03. 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 8.04. 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 8.05. 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 8.06. Further Assurances. The Trustee 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.
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SECTION 8.07. 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, provided that the costs and expenses of the Plan and the
Trustee shall be paid by the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories, as of the day and
year first above written.
CONDOR SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
WDC STOCK ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
XXXXX FARGO BANK, N.A.,
AS TRUSTEE
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
