part 2
EXHIBIT 2.1(a)
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is entered into as of January 19, 1998, by and between
Whittaker Corporation, a Delaware corporation (the "Seller"), and MRV
Communications, Inc. (the "Buyer"). The Buyer and the Seller are referred to
collectively herein as the "Parties."
The Seller owns all of the outstanding capital stock of Whittaker
Xyplex, Inc., a Delaware corporation (the "Target"). The Target owns all of the
outstanding capital stock of Xyplex, Inc., a Massachusetts corporation (the
"Subsidiary").
This Agreement contemplates a transaction in which the Buyer will
purchase from the Seller, and the Seller will sell to the Buyer, all of the
outstanding capital stock of the Target in return for the consideration set
forth herein.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Acquisition Agreement" has the meaning set forth in Section 6(i)
below.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of
Code Section 1504(a).
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis for
any specified consequence.
"Broker's Contract" has the meaning set forth in Section 3(a)(iv).
"Buyer" has the meaning set forth in the preface above.
"Buyer's Stock" has the meaning set forth in Section 2(b) below.
"Closing" has the meaning set forth in Section 2(c) below.
"Closing Date" has the meaning set forth in Section 2(c) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the
business and affairs of the Target that is not already generally available to
the public.
"Controlled Group of Corporations" has the meaning set forth in Code
Section 1563.
"Deferred Intercompany Transaction" has the meaning set forth in Reg.
Section 1.1502-13.
"Disclosure Schedule" has the meaning set forth in Sections 3 and 4
below.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee Pension
Benefit Plan, (b) qualified defined contribution retirement plan or arrangement
which is an Employee Pension Benefit Plan, (c) qualified defined benefit
retirement plan or arrangement which is an Employee Pension Benefit Plan
(including any Multiemployer Plan), or (d) Employee Welfare Benefit Plan or
material fringe benefit plan or program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
Section 3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
Section 3(1).
"Environmental, Health and Safety Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, and the Occupational Safety and Health
Act of 1970, each as amended, together with all other laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof) concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes, as in effect on the date hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Excess Loss Account" has the meaning set forth in Reg. Section
1.1502-19.
"Extremely Hazardous Substance" has the meaning set forth in Section
302 of the Emergency Planning and Community Right-to-Know Act of 1986, as
amended.
"Fiduciary" has the meaning set forth in ERISA Section 3(21).
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"Financial Statement" has the meaning set forth in Section 4(f) below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Hart-Scott-Rodino Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Indemnified Party" has the meaning set forth in Section 8(d) below.
"Indemnifying Party" has the meaning set forth in Section 8(d) below.
"Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals), (f) all computer software (including data and
related documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodiments thereof (in whatever form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Most Recent Balance Sheet" means the balance sheet contained within
the Most Recent Financial Statements.
"Most Recent Financial Statements" has the meaning set forth in Section
4(f) below.
"Most Recent Fiscal Month End" has the meaning set forth in Section
4(f) below.
"Most Recent Fiscal Year End" means October 31, 1997.
"Multiemployer Plan" has the meaning set forth in ERISA Section 3(37).
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"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Prohibited Transaction" has the meaning set forth in ERISA Section 406
and Code Section 4975.
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Raytheon" has the meaning set forth in Section 6(i) below.
"Raytheon Obligations" has the meaning set forth in Section 6(i) below.
"Reportable Event" has the meaning set forth in ERISA Section 4043.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for Taxes not yet due and payable or for Taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Seller" has the meaning set forth in the preface above.
"Subsidiary" has the meaning set forth in the preface above.
"Subsidiary Share" means any share of Common Stock of the Subsidiary.
"S-X" has the meaning set forth in Section 6(g).
"Target" has the meaning set forth in the preface above.
"Target Share" means any share of the Common Stock, par value $.01 per
share, of the Target.
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"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Section
59A), customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Third Party Claim" has the meaning set forth in Section 8(d) below.
"Warrants" means the warrants to purchase shares of Buyer's Stock,
issued in accordance with the Warrant Agreement attached as Exhibit A hereto,
which comprise a portion of the Purchase Price.
2. Purchase and Sale of Target Shares.
(a) Basic Transaction. On and subject to the terms and conditions of
this Agreement, the Buyer agrees to purchase from the Seller, and the Seller
agrees to sell to the Buyer, all of the Target Shares for the consideration
specified below in this Section 2.
(b) Purchase Price. The Buyer agrees to deliver to the Seller at the
Closing $35,000,000 in cash and warrants to purchase 421,402 shares of common
stock of the Buyer ("Buyer's Stock"), such warrants to be issued pursuant to the
Warrant Agreement, a form of which is attached as Exhibit A hereto, (such cash
and Warrant, together with the Warrant for 78,598 shares of Buyer's Stock to be
issued pursuant to Section 6(g) hereof, if any, the "Purchase Price").
(c) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Freshman, Marantz,
Orlanski, Cooper & Klein, 9100 Wilshire Boulevard, 8 East, Beverly Hills,
California, commencing at 9:00 a.m. local time on the fifth business day
following the satisfaction or waiver of all conditions to the obligations of the
Parties to consummate the transactions contemplated hereby (other than
conditions with respect to actions the respective Parties will take at the
Closing itself) or such other date as the Buyer and the Seller may mutually
determine (the "Closing Date").
(d) Deliveries at the Closing. At the Closing, (i) the Seller will
deliver to the Buyer stock certificates representing all of the Target Shares,
endorsed in blank or accompanied by duly executed assignment documents and a
standard investment representation letter with respect to the Warrants, and (ii)
the Buyer will deliver to the Seller the consideration specified in Section 2(b)
above.
(e) Other Actions. At or immediately prior to the Closing, (i) the
Subsidiary, the Target and the Seller shall release and cancel any intercompany
loans, guaranties, liens and other
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intercompany obligations (except for that certain License Agreement dated as of
January 24, 1997 between the Subsidiary, on one hand, and Seller and Whittaker
Communications, Inc., on the other), and (ii) the Seller will require its
lenders to release any liens on the Target Shares, the Subsidiary Shares or the
assets of the Subsidiary in favor of Seller's lenders.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Seller. The Seller represents
and warrants to the Buyer that the statements contained in this Section 3(a) are
correct and complete as of the date of this Agreement, except as set forth in
Schedule 3(a) attached hereto.
(i) Organization of Seller. The Seller is duly organized,
validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Seller has full
corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Seller, enforceable in
accordance with its terms and conditions. The Seller need not give any
notice to, make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement, other than
filings required by the Hart-Scott-Rodino Act.
(iii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which the Seller is subject or any provision of its charter or
bylaws or (B) conflict with, result in a breach of or constitute a
default under any material contract to which the Seller is a party,
including any agreement to merge the Target or the Subsidiary, sell or
transfer the Target Shares or the Subsidiary Shares, or sell all or
substantially all of the Subsidiary's assets.
(iv) Brokers' Fees. The Seller has no Liability or obligation
to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which
the Buyer could become liable or obligated, other than fees and
expenses owed to Dillon, Read & Co., Inc. pursuant to the Seller's
contract with Dillon, Read & Co., Inc. dated as of February 7, 1997
(the "Broker's Contract").
(v) Target Shares. The Seller holds of record and owns
beneficially all of the outstanding Target Shares, and as of the
Closing Date such Shares shall be free and clear of any restrictions
on transfer (other than any restrictions under the Securities Act and
state securities laws), Taxes, Security Interests, options, warrants,
purchase rights, contracts, commitments, equities, claims, and
demands. The Seller is not a party to any option, warrant, purchase
right, or other contract or commitment that could require the Seller
to sell, transfer, or otherwise dispose of any capital stock of the
Target (other than this
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Agreement). The Seller is not a party to any voting trust, proxy, or
other agreement or understanding with respect to the voting of any
capital stock of the Target.
(vi) Guaranties. At the Closing, the Seller will not be the
guarantor for any obligations or Liabilities of the Target or the
Subsidiary.
(vii) Investment. The Seller is not acquiring the Warrants
with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act.
(b) Representations and Warranties of the Buyer. The Buyer represents
and warrants to the Seller that the statements contained in this Section 3(b)
are correct and complete as of the date of this Agreement, except as set forth
in Schedule 3(b) attached hereto.
(i) Organization of the Buyer. The Buyer is a corporation
duly organized, validly existing, and in good standing under the laws
of the jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Buyer has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding
obligation of the Buyer, enforceable in accordance with its terms and
conditions. The Buyer need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the
transactions contemplated by this Agreement other than the filing of a
Notice under Regulation D of the Securities Act and filings required
by the Hart-Scott-Rodino Act.
(iii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which the Buyer is subject or any provision of its charter or
bylaws or (B) conflict with, result in a breach of or constitute a
default under any material contract to which the Buyer is a party.
(iv) Brokers' Fees. The Buyer has no Liability or obligation
to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which
the Seller could become liable or obligated.
(v) Investment. The Buyer is not acquiring the Target Shares
with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act.
(vi) Capitalization. The entire authorized capital stock of
the Buyer consists of 40,000,000 Shares. The Buyer has, and at all
times during which the Warrants are exercisable shall reserve and keep
available, free from preemptive rights, out of its
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authorized but unissued common stock or its authorized and issued
common stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Buyer's Shares upon the exercise of
Warrants.
4. Representations and Warranties Concerning the Target and the
Subsidiary. The Seller represents and warrants to the Buyer that the statements
contained in this Section 4 are correct and complete as of the date of this
Agreement, except as set forth in the disclosure schedules delivered by the
Seller to the Buyer on the date hereof (the "Disclosure Schedule"). The
Disclosure Schedule will be arranged in paragraphs corresponding to the lettered
and numbered paragraphs contained in this Section 4.
(a) Organization, Qualification, and Corporate Power. Each of the
Target and the Subsidiary is a corporation duly organized, validly existing, and
in good standing under the laws of the jurisdiction of its incorporation. Each
of the Target and the Subsidiary is duly authorized to conduct business and is
in good standing under the laws of each jurisdiction where such qualification is
required. The Subsidiary has full corporate power and authority and all material
licenses, permits, and authorizations necessary to carry on the business in
which it is engaged and to own and use the properties owned and used by it.
Section 4(a) of the Disclosure Schedule lists the directors and officers of the
Target and the Subsidiary. The Seller has delivered to the Buyer correct and
complete copies of the charter and bylaws of the Target and the Subsidiary (as
amended to date). Neither the Target nor the Subsidiary is in default under or
in violation of any provision of its charter or bylaws. The Target has no equity
interest in any Person, except for the Subsidiary. The Subsidiary has no equity
interest in any other Person.
(b) Capitalization.
(i) The entire authorized capital stock of the Target
consists of 40,000,000 Target Shares, 36,800,000 of which are issued
and outstanding. All of the outstanding Target Shares have been duly
authorized, are validly issued, fully paid, and nonassessable, and are
held of record and are beneficially owned by the Seller. There are no
outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require the Target to issue, sell,
or otherwise cause to become outstanding any of its capital stock.
There are no outstanding or authorized stock appreciation, phantom
stock, profit participation, or similar rights with respect to the
Target. There are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of the capital stock of the
Target.
(ii) The entire authorized capital stock of the Subsidiary
consists of 1,000 Subsidiary Shares, all of which are issued and |
