EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
BY AND AMONG
WIRELESS TELECOM GROUP, INC.
AND
MICROLAB/FXR EMPLOYEES' STOCK OWNERSHIP PLAN
DATED AS OF December 21, 2001
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") made as of the 21st day of
December, 2001, by and among Wireless Telecom Group, Inc., a New Jersey
Corporation ("Buyer"), and Microlab/FXR Employees Stock Ownership Plan acting
through Harry A. Augenblick as the trustee of its related trust and not in his
capacity individually, (the "ESOP") for the purchase and sale of 100% of the
shares of Microlab/FXR, a New Jersey corporation (the "Company") owned by the
ESOP.
W I T N E S S E T H T H A T:
WHEREAS, as of the date of this Agreement, the ESOP and Harry A.
Augenblick, the majority stockholder of the Company ("Majority Stockholder" and
together with the ESOP, the "Stockholders") own all of the issued and
outstanding shares of capital stock of the Company;
WHEREAS, the ESOP desires to sell to Buyer, and Buyer desires to
purchase from the ESOP, all of such shares of capital stock; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto, each intending to be legally bound,
hereby agree as follows.
1. Sale of Shares. On the terms and subject to the conditions set forth
in this Agreement, the ESOP hereby agrees to sell, assign and transfer to the
Buyer, and the Buyer hereby agrees to purchase from the ESOP, on the Closing
Date (as defined below), all of the outstanding shares of common stock, no par
value per share, of the Company set forth on Schedule 1 attached hereto (the
"ESOP Shares"). Pursuant to the purchase and sale agreement by and between the
Buyer, the Company and the Majority Stockholder ("Majority Stockholder Purchase
Agreement"), Buyer has agreed to purchase and the Majority Stockholder has
agreed to sell all of the shares of the common stock of the Company owned by the
Majority Stockholder as set forth on Schedule 1 (the "Majority Stockholder
Shares") which together with the ESOP Shares represent 100% of the issued and
outstanding shares of capital stock of the Company, thereby acquiring
all of the assets of, and assuming all of the liabilities of, the Company, in
exchange for the purchase price provided below.
2. Purchase Price, Payment Terms and Adjustment.
(a) Purchase Price. The purchase price to be paid at Closing
by the Buyer to the Stockholders, pursuant to this Agreement and the Majority
Stockholder Purchase Agreement, in consideration for the Majority Stockholders
Shares and the ESOP Shares is, in the aggregate, $5,865,755 (the "Purchase
Price"). The ESOP acknowledges that each Stockholder shall receive such portion
of the Purchase Price as set forth opposite such Stockholders' name on Schedule
1.
(b) Payment of Terms and Schedules. All payments of the
portion of the Purchase Price set forth opposite the ESOP on Schedule 1 the
("ESOP Purchase Price") shall be paid in United States currency, by means of a
wire transfer of immediately available funds on the applicable payment date to
such account(s) of the ESOP as the ESOP and the Buyer have jointly designated on
Schedule 2(b) attached hereto. The ESOP Purchase Price shall be paid to the ESOP
on the date hereof.
3. Confidentiality; Public Announcements.
(a) No party hereto will use, transfer, release, publish,
reveal or disclose, directly or indirectly, any trade secrets or other business
and/or technical information of the other party that is of a proprietary or
confidential nature, including, but not limited to, systems, processes, data,
computer programs, know-how, developments, designs, techniques, marketing and
advertising methods, supplier agreements, customer lists, pricing policies,
financial information, projections, forecasts, strategies, budgets or other
information related to its business or its customers (the "Evaluation
Material"), except (x) to such party's directors, officers, employees, financial
advisors, legal counsel, independent certified public accountants or other
agents, advisors or other representatives as shall reasonably require access
thereto for the purpose of the transactions contemplated hereby, (y) to persons
other than those described in (x) above with the prior written consent of the
ESOP or the Buyer, as the case may be, and (z) by such party as required
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under public disclosure obligations imposed thereon by applicable law. The
foregoing restrictions on disclosure of information do not extend to any
Evaluation Material that (A) is publicly known at the time of its disclosure,
(B) is lawfully received from a third party not bound by a confidential
relationship to such other party, (C) is shown by such party to have been
generated independently by such party or any of the persons listed in (x) above
solely from information not supplied by the other party or its representatives,
or (D) is required to be disclosed pursuant to governmental order or decree or
other legal requirement to produce or disclose such item of information.
(b) The ESOP shall not issue any press release or make any
reference to the Closing or to the transactions contemplated hereby to any third
party except with the prior written consent of the Buyer hereto and except as
may be required by applicable law.
4. Representation and Warranties of the ESOP. The ESOP hereby
represents and warrants to the Buyer as follows, except as set forth in the
exhibits and schedules attached hereto:
(a) Ownership of Shares and Execution of Agreement.
(i) The ESOP is the record and beneficial owner of
the issued and outstanding shares of capital stock of the Company set forth on
Schedule 1 attached hereto, free and clear of any and all liens, pledges,
encumbrances, charges, agreements or claims of any kind whatsoever, other than
the liens and pledges of such ESOP Shares to the Company, as set forth on
Schedule 4(a)(i), pursuant to the ESOP acquisition loan and suspense account
(the "ESOP Liens").
(ii) The ESOP has full power and authority to sell,
transfer, assign and deliver the ESOP Shares as provided in this Agreement, and
such delivery hereby conveys to the Buyer good and marketable title to the ESOP
Shares, free and clear of any and all liens, pledges, encumbrances, charges,
agreements or claims of any kind whatsoever other than the ESOP Liens. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly
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authorized by all necessary action of the ESOP. This Agreement and all other
agreements pertaining to the transactions described herein have been, or upon
the execution and delivery thereof will be, duly executed and delivered by the
ESOP, and constitute or will constitute the legal, valid and binding obligation
of the ESOP, enforceable against the ESOP in accordance with their respective
terms.
(b) Litigation. There are no actions, suits, proceedings
(including, without limitation, arbitration proceedings), or to the knowledge of
the ESOP, claims or investigations (in which the ESOP is a target or subject
thereof) pending or, to the knowledge of the ESOP, threatened against the ESOP
that would prevent the ESOP from or otherwise limit its ability to execute and
perform this Agreement, other than the DOL Inquiry (as hereinafter defined).
(c) Consents. As of the date hereof, no consent, approval or
authorization of any governmental authority or of any third party on the part of
the ESOP is required in connection with the execution and delivery of this
Agreement or any instrument contemplated hereby.
(d) Restrictions. Except for the restrictions under the ESOP
Liens which will be satisfied upon payment of the ESOP Purchase Price and
repayment of the ESOP acquisition loan, neither the execution or delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will conflict with or result in a breach of, or give rise to a right of
termination of, or accelerate the performance required by, any terms of any
material agreement to which the ESOP is a party, or constitute a default
thereunder, or result in the creation of any lien, claim or encumbrance upon any
of the assets of the ESOP, nor will it violate any of the provisions of the
ESOP's organizational documents or any material statute, regulation, rule,
injunction, judgment, order, writ, decree, ruling, charge, or other restriction
of any government or governmental agency or court to which the ESOP is subject.
(e) No Misrepresentation. This Agreement, together with all
exhibits and schedules hereto, do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained herein or therein,
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in the light of the circumstances under which they were made, not misleading.
There is no fact known to the committee of the ESOP which has not been disclosed
to the Buyer in writing which has or could reasonably be expected to have a
material adverse effect on the business, assets, financial condition or prospect
of the Company, or materially adversely affects the ability of the ESOP to
perform its obligations under this Agreement, or any agreement or other document
contemplated hereby to which the ESOP is or will be a party.
(f) Knowledge of the ESOP. All references to the knowledge of
the ESOP and like phrases shall mean actual knowledge or notice of any officer,
trustee or committee of the ESOP and such knowledge which such person should
have acquired in the performance of such person's fiduciary or management
duties.
(g) Dept of Labor Investigation. The pending audit of the ESOP
by the U.S. Department of Labor (the "DOL Inquiry") will not have a material
adverse effect on the (i) business, assets, financial condition or prospect of
the Company or (ii) the value of the ESOP Shares or the Majority Stockholder
Shares or, to the best knowledge of the ESOP, materially adversely affect the
ability of the ESOP to perform its obligations under this Agreement, or any
agreement or other document contemplated hereby to which the ESOP is or will be
a party.
5. Representations and Warranties of Buyer. The Buyer hereby represents
and warrants to the ESOP as follows:
(a) Organization and Good Standing. The Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey and has full corporate power and authority to own its
properties and carry on its business as it is now being conducted.
(b) Restrictions. Neither the execution or delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
conflict with or result in a breach of, or give rise to a right of termination
of, or accelerate the performance required by, any terms of any material
agreement to which the Buyer is a
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party, or constitute a default thereunder, or result in the creation of any
lien, claim or encumbrance upon any of the assets of the Buyer, nor will it
violate any of the provisions of the Buyer's formation or organizational
documents or By-laws or any material statute, regulation, rule, injunction,
judgment, order, writ, decree, ruling, charge, or other restriction of any
government or governmental agency or court to which the Buyer is subject.
(c) Execution and Effect of Agreement. The Buyer has the full
corporate power and authority to enter into this Agreement and the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by the necessary corporate action of the Buyer.
This Agreement has been duly executed and delivered by the Buyer and constitutes
the legal, valid and binding obligation of the Buyer, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors rights and
remedies generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealings (regardless of whether enforcement is sought in a proceeding at law or
in equity).
6. Conditions Precedent to Buyer's Obligation. The obligation of the
Buyer to consummate the purchase of the Shares on the date hereof is, at the
option of the Buyer, subject to the satisfaction of the following conditions:
(a) The Buyer shall have received a duly executed Majority
Stockholder Purchase Agreement and the Closing of the transactions contemplated
by the Majority Stockholder Purchase Agreement shall have accrued or shall occur
contemporaneously with the Closing herein.
(b) The Buyer shall have received an opinion of counsel for
the ESOP, dated the date hereof.
(c) The Buyer shall have received a certificate of the trustee
of the ESOP, dated the date hereof as to the incumbency and specimen signature
of each person
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executing any document to which it is a party or any other document delivered in
connection herewith on behalf of the ESOP.
(d) ESOP shall have received an opinion of an independent
valuation expert reasonably satisfactory to the Buyer that the transaction
contemplated herein is fair to the ESOP from a financial point of view.
(e) The Buyer shall have received a resolution of the ESOP
committee dated the date hereof directing the ESOP's trustee to consummate the
transactions contemplated by this Agreement, including but not limited to the
sale of the ESOP Shares by the ESOP to the Buyer for the consideration set forth
in Section 2 and on Schedule 1.
(f) The number of Shares allocated to the participants of the
ESOP and the number of unallocated Shares pledged to the Company shall be as set
forth on Schedule 1.
(g) The ESOP shall have established an account at the banking
institution designated by the Buyer to receive the ESOP Purchase Price and shall
have repaid the Company the amount of $2,065,755 in full satisfaction of the
ESOP acquisition loan, without further recourse to the ESOP or its assets, and
the Company shall have transferred the unallocated Shares to the ESOP, free of
the ESOP Liens.
7. Conditions Precedent to the ESOP's Obligation. The obligation of the
ESOP to consummate the sale of the ESOP Shares on the date hereof is, at the
option of the ESOP, subject to the satisfaction of the following conditions:
(a) The Closing of the transactions contemplated by the
Majority Stockholder Purchase Agreement shall have accrued or shall occur
contemporaneously with the Closing herein.
(b) The ESOP shall have received a certificate of a duly
authorized officer of the Buyer, dated the date hereof as to the incumbency and
specimen signature of each officer of the Buyer executing any document to which
it is a party or any other document delivered in connection herewith on behalf
of the Buyer.
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8. Conditions Subsequent to Buyer's Purchase of the Shares. The
obligation of the Buyer to consummate the purchase of the Shares on the date
hereof includes the Buyer's obligation to satisfy the following conditions
subsequent to the Closing:
(a) The Buyer shall as soon as reasonably possible after the
Closing take all corporate steps necessary to terminate the ESOP in accordance
with the provisions of the ESOP, Section 19(c), in particular, and its related
trust;
(b) The Buyer shall pay all costs and fees associated with
such ESOP termination.
(c) The Buyer shall in good faith take reasonable measures to
keep the members and former members of the committee of the ESOP informed of the
progress of the termination of the ESOP, in accordance with Buyer's duties under
the Employee Retirement Income Security Act of 1974.
9. Closing.
(a) The closing hereunder (herein called the "Closing") shall
take place at Morrison Cohen Singer & Weinstein, LLP, 750 Lexington Avenue, New
York, NY 10022 on December 21, 2001 (the "Closing Date"), or at such other place
and at such other earlier or later time and date as may be mutually agreed upon
in writing by the Buyer and the ESOP.
(b) All proceedings to be taken and all documents to be
executed and delivered by all parties at the Closing (including the Majority
Stockholder and the Company) shall be deemed to have been taken and executed
simultaneously and no proceedings shall be deemed taken nor any documents
executed or delivered until all have been taken, executed and delivered.
(c) At the Closing, the ESOP shall deliver, or shall cause to
be delivered, to the Buyer the following:
(i) Certificates representing the ESOP Shares, in
proper form for transfer.
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(ii) All certificates, opinions, documents referred
to in Section 6 hereof.
(d) The Buyer shall deliver, or shall cause to be delivered to
the ESOP, the following:
(i) At the Closing, transfer of the ESOP Purchase
Price in accordance with Section 2 hereof into the account of the ESOP
established in accordance with 6(g) hereof .
(ii) All documents referred to in Section 7 hereof.
10. No Brokers. The ESOP represents and warrants to Buyer, and the
Buyer represents to the ESOP, that they respectively have had no dealings with
any broker or finder in connection with the transactions contemplated by this
Agreement.
11. Specific Performance. The parties hereto acknowledge that
irreparable damage would result if this Agreement is not specifically enforced.
Therefore, the rights and obligations of the parties under the Agreement,
including, without limitation, their respective rights and obligations to sell
and to purchase the ESOP Shares and to terminate the ESOP, shall be enforceable
by a decree of specific performance issued by any court of competent
jurisdiction, and appropriate injunctive relief may be applied for and granted
in connection therewith. Such remedies shall, however, be cumulative and not
exclusive and shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
12. Indemnification. The parties hereto acknowledge and agree that the
ESOP shall not be liable to Buyer for breach of any representation or warranty
made by the ESOP hereunder, except for those representations and warranties made
in Section 4(a) hereof entitled "Ownership of Shares and Execution of
Agreement".
13. Further Assurances. The parties hereto each agree to execute such
other documents or agreements as may be necessary or desirable for the
implementation of this Agreement and the consummation of the transactions
contemplated hereby.
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14. Jurisdiction. The parties hereto hereby consents to the
jurisdiction of any state or federal court located within the Essex County of
New Jersey, State of New Jersey and irrevocably agree that all actions or
proceedings arising out of or relating to this Agreement shall be litigated in
such courts. The parties accept, generally and unconditionally, the exclusive
jurisdiction of the aforesaid courts and waive any defense of forum non
conveniens, and irrevocably agree to be bound by any judgment rendered thereby
in connection with this Agreement.
15. Miscellaneous Notices.
(a) Any notices or other communications required or permitted
hereunder shall be deemed sufficiently given if in writing and (a) personally
delivered (including delivery by messenger), (b) sent by facsimile provided that
"answer-back" confirmation is received by the sender, or (c) sent by registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows or to such other address as the parties shall have given notice of
pursuant hereto:
In the case of the ESOP:
ESOP Committee
c/o Microlab/FXR
10 Microlab Road
Livingston, NJ 07039
with a copy to:
Lampf, Lipkind, Prupis & Petigrow, PC
80 Main Street
West Orange, New Jersey 07052
Attention: Neil L. Prupis, Esq.
Telephone: 973-325-2100
Telecopier: 973-543-0964
In the case of the Buyer:
Wireless Telecom Group, Inc.
East 64 Midland Avenue
Paramus, New Jersey 07652
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Attention: Edward Garcia
Telephone: 201-261-8797
Telecopier: 201-261-8339
with a copy to:
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
Attention: Robert H. Cohen, Esq.
Telephone: 212-735-8680
Telecopier: 212-735-8708
Any notice given (a) personally shall be deemed given, delivered and
received upon receipt, (b) via facsimile shall be deemed given, delivered and
received upon sender's confirmation of receipt from its facsimile machine, and
(c) via certified mail, return receipt requested, shall be deemed given,
delivered and received five (5) days after sending.
(b) Survival of Representations and Warranties. The parties
hereto agree that the representations and warranties contained in this Agreement
(including, without limitation, in any Schedule hereto) or in any certificate
delivered by any party hereto at the Closing shall survive the execution and
delivery of this Agreement and the Closing hereunder indefinitely, regardless of
any investigation made by the parties hereto.
(c) Entire Agreement. This Agreement, including the Schedules,
Exhibits, certificates and instruments delivered pursuant hereto, represents the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof and can be amended, supplemented or changed only by
written instrument making specific reference to this Agreement and signed by all
parties hereto. Any provision hereof can be waived only by written instrument
making specific reference to this Agreement signed by the party against whom
enforcement of any such waiver is sought.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto. The ESOP may not assign any of its/his rights under this
Agreement without prior written
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consent of the Buyer, and any purported assignment by Stockholders in violation
of this Section 15(c) shall be void and of no effect. The Buyer may assign its
rights, duties and obligations to a corporation or other business entity to be
formed, whereupon the Buyer named herein shall have no further obligation or
liability hereunder and all references herein to "Buyer" shall be deemed
references to such assignee. Except for such assignees as are permitted hereby,
no Person shall be a beneficiary of this Agreement other than the Persons named
herein.
(e) Section Headings. The Section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) Applicable Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New Jersey,
without regard to the principles, provisions or policies thereof relating to
conflict of laws.
(g) Expenses; Transfer Taxes. Whether or not the transactions
contemplated hereby are consummated, the parties hereto shall pay their own
respective expenses. The fees and expenses hereunder of the ESOP shall be paid
by the ESOP, and those of the Buyer shall be paid by the Buyer.
(h) Severability. If at any time subsequent to the date
hereof, any provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be of no
force and effect, but the illegality or unenforceability of such provision shall
have no effect upon and shall not impair the enforceability of any other
provision of this Agreement.
(i) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
(j) Acceptance of Facsimile Signatures. The Buyer and the ESOP
agree that this Agreement and related documents to be entered into in connection
with this Agreement will be considered signed by a party when the signature of
such party is
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delivered by facsimile transmission to the other party(ies). Such facsimile
signature shall be treated in all respects as having the same effect as an
original signature.
(k) No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement and the
other transaction documents (the "Transaction Documents"). In the event an
ambiguity or question of intent or interpretation arises under any provision of
this Agreement or any Transaction Document, this Agreement or such other
Transaction Document shall be construed as if drafted jointly by the parties
thereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement or any other Transaction Document. No knowledge of, or
investigation, including without limitation, due diligence investigation,
conducted by, or on behalf of, the Buyer shall limit, modify or affect the
representations set forth in Section 4 of this Agreement or the right of the
Buyer to rely thereon.
(l) The non-prevailing party in any legal proceedings brought
to enforce the provisions of this Agreement shall bear and reimburse the
prevailing party for the reasonable legal expenses and disbursements incurred by
the prevailing party in connection with such proceeding.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the day and year first above written.
WIRELESS TELECOM GROUP, INC.
By: /s/ Edward J. Garcia
---------------------------------
Name: Edward J. Garcia
Title President
MICROLAB/FXR EMPLOYEES' STOCK
OWNERSHIP PLAN
By: /s/ Harry A. Augenblick, Trustee
--------------------------------
Name: Harry A. Augenblick, Trustee
[SIGNATURE PAGE TO ESOP PURCHASE AGREEMENT]
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