EXHIBIT 2.2
31 December 2006
FIRST AMENDMENT TO
SHARE PURCHASE AGREEMENT
in respect of the TechTeam Stock in Advanced Network Engineering NV
between
Peter De Gendt, Wim De Geetere, Werner Meynaerts, Pascal Claessens
and Christophe Gesqueire as Sellers
and
TechTeam Global NV as Purchaser
FIRST AMENDMENT TO
SHARE PURCHASE AGREEMENT
BETWEEN: (1) PETER DE GENDT, residing at Offerlaan 144, B-9000 Ghent,
Belgium,
hereinafter referred to as "SELLER 1";
(2) WIM DE GEETERE, residing at IJsbeerlaan 9, B-9850 Nevele,
Belgium,
hereinafter referred to as "SELLER 2";
(3) WERNER MEYNAERTS, residing at Zavelstraat 75, B-3010 Kessel-Lo,
Belgium,
hereinafter referred to as "SELLER 3";
(4) PASCAL CLAESSENS, residing at Haakveld 29, B-2547 Lint, Belgium,
hereinafter referred to as "SELLER 4";
(5) CHRISTOPHE GESQUEIRE, residing at Broekstraat 10, B-9500
Geraardsbergen, Belgium,
hereinafter referred to as "SELLER 5";
hereinafter jointly referred to as the "SELLERS";
AND: (6) TECHTEAM GLOBAL NV, a company organised and existing under the
laws of Belgium, having its registered office at
Zweefvliegtuigstraat 10, B-1130 Haren (Brussels), registered
with the register of legal entities (enterprise number
0458.468.124),
represented for the purposes of this Agreement by Christoph
Neut,
hereinafter referred to as the "PURCHASER";
(7) TECHTEAM GLOBAL, INC., a corporation organised and existing
under the laws of the State of Delaware, USA, having its
registered office at 27335 W. 11 Mile Road, Southfield, MI 48033
USA.
represented for the purposes of this Agreement by Marc J.
Lichtman,
hereinafter referred to as the "TECHTEAM";
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WHEREAS:
(A) The Sellers sold their interest in Advanced Network Engineering NV, a
company organised and existing under the laws of Belgium, having its
registered office at Casinoplein 16, B-9000 Ghent, Belgium, registered with
the register of legal entities (enterprise number 0436.127.143)
(hereinafter referred to as the "COMPANY") to Purchaser in the Share
Purchase Agreement dated 13 May 2004 ("SPA").
(B) The SPA provided that the Sellers could earn additional purchase price
consideration in the event the Operating Income of the Company reached or
exceeded E780,000.00 for the three-year period, ending May 13, 2007, after
the sale of the Company ("Earn-Out").
(C) Based upon changes in the business of the Company, as a subsidiary of the
Purchaser, there is uncertainty regarding whether the Sellers have or will
earn the additional purchase price consideration set forth in Section 3.2
of the SPA, and the Parties wish to resolve any potential dispute by
amending the Earn-Out as set forth herein.
(D) Inasmuch as the compromise involves the issuance of the common stock of
TechTeam, the parties agree that TechTeam shall be a party to this
Amendment.
IT IS AGREED AS FOLLOWS:
SECTION 3.2. EARN-OUT AMOUNT. Section 3.2 Earn-Out Amount is deleted
in its entirety and replaced by the following:
3.2.1 Purchaser shall pay Sellers the following amounts:
(a) Seller 1. E16,200
(b) Seller 2. E20,100
(c) Seller 3. E9,600
(d) Seller 4. E12,864
(e) Seller 5. E9,600
3.2.2 TechTeam shall issue to the following Sellers a number of shares
of TechTeam common stock equivalent to the euro amount set forth
below, as calculated by Section 3.2.3 ("TechTeam Stock"):
3.2.2.1.1 Seller 1. E16,200
3.2.2.1.2 Seller 3. E9,600
3.2.2.1.3 Seller 5. E9,600
3.2.3 Calculation of Number of Shares of TechTeam Stock. The number of
shares of TechTeam Stock shall be calculated by (i) converting
the consideration in euros to U.S. dollars using the E/US$ spot
exchange rate published by the Wall Street Journal on the date
three (3) Business Days prior to the date this Amendment is
executed ("Execution Date") (the result being the "Dollar
Consideration"); and (ii) dividing the Dollar Consideration by
the average closing share
Amended TechTeam_ANE_SPA 18-12-06
3
price of TechTeam Stock as listed on the NASDAQ Stock Market for
the three (3) Business Days prior to, and the three (3) Business
Days following, the Execution Date (the "Average Closing
Price"). No fractional shares of TechTeam Stock will be issued.
In lieu of any such fractional shares, each Seller who would
otherwise have been entitled to a fraction of a share of
TechTeam Stock shall be entitled to receive a cash payment in
lieu of such fractional share determined by multiplying (A) the
Average Closing Price of a whole share of TechTeam Stock by (B)
the fractional share interest to which such holder would
otherwise be entitled, which amount shall be paid to each Seller
with payments made under Section 3.2.1.
3.2.4 Issuance of Securities. The TechTeam Stock has been duly and
validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued and delivered as provided hereunder
against payment in accordance with the terms hereof, shall be
valid and binding obligations of TechTeam enforceable in
accordance with their respective terms.
3.2.5 Restrictions on TechTeam Stock. Each Seller who receives
TechTeam Stock understands and agrees that the shares granted
hereunder are restricted as follows:
3.2.5.1 Vesting Schedule. The TechTeam Stock will vest in three
equal parts on December 31, 2007, December 31, 2008, and
December 31, 2009, provided that, for each individual
Seller, the management company owned by that Seller is
still providing services to the Company or an Affiliate
on the applicable vesting date. No Seller may sell or
transfer any of the TechTeam Stock until they are
vested. If a Seller's management company is not
providing services to the Company or an Affiliate as a
result of death or disability of a Seller, that Seller's
TechTeam Stock will become fully vested as of the last
date services are provided to the Company or an
Affiliate.
3.2.5.2 Voting and Dividends. While the TechTeam Stock is
subject to forfeiture, each Seller holding TechTeam
Stock may exercise full voting rights and receive all
dividends and other distributions paid with respect to
the TechTeam Stock, in each case so long as the
applicable record date occurs before such TechTeam Stock
is forfeited. If, however, any such dividends or
distributions are paid in TechTeam Stock, such TechTeam
Stock will be subject to the same risk of forfeiture,
restrictions on transferability and other terms as set
forth herein.
3.2.5.3 TechTeam Stock Unregistered. The stock certificates
representing the TechTeam Stock are not registered, and
cannot be sold by the Seller until the TechTeam Stock
has vested, and shall bear the following legend:
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THESE SECURITIES HAVE NOT BEEN REGISTERED, QUALIFIED,
RECOMMENDED, APPROVED OR DISAPPROVED UNDER THE UNITED
STATES FEDERAL SECURITIES LAW OR STATE SECURITY LAW. THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY AN INVESTOR
WITHOUT (I) REGISTRATION UNDER UNITED STATES FEDERAL
SECURITIES LAW, OR (II) DELIVERY OF AN OPINION OF
COUNSEL SATISFACTORY TO THE TECHTEAM GLOBAL, INC. THAT
NEITHER THE SALE NOR THE PROPOSED TRANSFER CONSTITUTES A
VIOLATION OF ANY UNITED STATES FEDERAL OR STATE
SECURITIES LAW. FURTHER, THE SHARES REPRESENTED BY THIS
CERTIFICATE VEST IN EQUAL AMOUNTS ON DECEMBER 31, 2007,
DECEMBER 31, 2008 AND DECEMBER 31, 2009, AND THE SELLERS
MAY NOT SELL UNVESTED SHARES.
3.2.6 Investment in the TechTeam Stock. The Seller's receiving
TechTeam Stock represent and warrant that:
3.2.6.1 By reason of the business and financial experience of
each Seller and such Seller's financial advisors, each
Seller has the capacity to evaluate the merits and risks
of accepting the TechTeam Stock to be transferred to
such Seller and to protect such Seller's interests in
connection herewith.
3.2.6.2 Each Seller is acquiring the TechTeam Stock to be
transferred to such Seller for investment for Seller's
own account, not as a nominee or agent, and not with a
view to, or for resale in connection with, any
distribution thereof in violation of the Securities Act.
Each Seller understands that the TechTeam Stock has not
been, and will not be registered under the Securities
Act by reason of a specific exemption from the
registration provisions of the Securities Act, the
availability of which depends upon, among other things,
the bona fide nature of the investment intent and the
accuracy of Seller's representations as expressed
herein.
3.2.6.3 Each Seller has been given full access to all material
information concerning the condition, business,
operations, proposed operations and prospects of
Purchasers, including (i) the Annual Report on Form 10-K
most recently filed with the SEC by Purchasers, (ii) all
Quarterly Reports on Form 10-Q filed with the SEC by
Purchasers since the date of such Annual Report, (iii)
all Reports on Form 8-K filed with the SEC by Purchasers
since the date of such Annual Report and (iv) the Proxy
Statement most recently filed with the SEC by Purchasers
(receipt of copies of each of which is hereby
acknowledged by each Seller).
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3.2.6.4 Each Seller and each Seller's advisors, if any, have had
an opportunity to ask questions of, and to receive
information from TechTeam Global, Inc. concerning the
condition, business, operations, proposed operations and
prospects of TechTeam Global, Inc. and the terms and
conditions of Seller's investment in TechTeam Global,
Inc., and to obtain any additional information material
to such Seller's decision to accept the TechTeam Stock
to be transferred to such Seller or necessary to verify
the accuracy of other information and data received by
Seller in connection herewith. Each Seller believes that
there is no material information concerning the
condition, business, operations, proposed operations and
prospects of TechTeam Global, Inc. of which such Seller
is unaware.
3.2.6.5 Each Seller has made either alone or together with such
Seller's advisors, if any, such independent
investigation of TechTeam Global, Inc. and related
matters as (i) such Seller deems to be, or such Seller's
advisors, if any, have advised to be, necessary or
advisable in connection with Seller's acceptance of the
TechTeam Stock to be transferred to such Seller and (ii)
each Seller and such Seller's advisors, if any, believe
to be necessary in order to reach an informed decision
as to the advisability of accepting such TechTeam Stock.
3.2.6.6 Each Seller is able to bear the economic risk of an
investment in TechTeam Stock to be acquired hereunder,
and at the present time, is able to afford a complete
loss of such investment.
3.2.6.7 Each Seller who is not a citizen of the United States
("Foreign Seller") understands and acknowledges that (A)
the shares of TechTeam Stock have not been registered
under the Securities Act, are being sold in reliance
upon an exemption from registration afforded by
Regulation S; and that such shares of TechTeam Stock
have not been registered with any state securities
commission or authority; (B) pursuant to the
requirements of Regulation S, the shares of TechTeam
Stock may not be transferred, sold or otherwise
exchanged unless in compliance with the provisions of
Regulation S and/or pursuant to registration under the
Securities Act, or pursuant to an available exemption
hereunder; and (C) Each Foreign Seller is under no
obligation to register the shares of TechTeam Stock
under the Securities Act or any state securities law, or
to take any action to make any exemption from any such
registration provisions available.
3.2.6.8 Each Foreign Seller is not a U.S. person and is not
acquiring the shares of TechTeam Stock for the account
of any U.S. person.
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3.2.6.9 Each Foreign Seller is purchasing the shares of TechTeam
Stock for its own account and risk and not for the
account or benefit of a U.S. Person and no other person
has any interest in or participation in the shares of
TechTeam Stock or any right, option, security interest,
pledge or other interest in or to the shares of TechTeam
Stock.
3.2.6.10 Each Foreign Seller acknowledges that the shares of
TechTeam Stock will bear an additional legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN OFFERED AND SOLD IN AN "OFFSHORE TRANSACTION"
IN RELIANCE UPON REGULATION S AS PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION. ACCORDINGLY,
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT") AND MAY NOT BE
TRANSFERRED OTHER THAN IN ACCORDANCE WITH
REGULATION S, PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT, OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED
TO THE SATISFACTION OF THE COMPANY. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE CANNOT BE THE
SUBJECT OF HEDGING TRANSACTIONS UNLESS SUCH
TRANSACTIONS ARE CONDUCTED IN COMPLIANCE WITH THE
SECURITIES ACT.
3.2.7 The Parties agree that the modification to the Earn-Out
provisions in the Share Purchase Agreement resolves any
potential dispute between the Parties relating to the Earn-Out
provisions of the SPA. Accordingly, the Sellers agree to release
Purchaser for any claim which in any way pertain or relate to
the Earn-Out provisions of the SPA.
COUNTERPARTS
This Amendment may be executed in counterparts, in the number of originals
stated hereinafter on the signature page and, when taken together, the
counterparts executed by all Parties shall constitute one and the same
instrument.
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Done in Brussels, on 31 December 2006, in seven originals. Each party
acknowledges receipt of its own original.
PETER DE GENDT:
- -------------------------------------
WIM DE GEETERE:
- -------------------------------------
WERNER MEYNAERTS:
- -------------------------------------
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PASCAL CLAESSENS:
- -------------------------------------
CHRISTOPHE GESQUEIRE:
- -------------------------------------
TECHTEAM GLOBAL NV:
- ------------------------------------- ----------------------------------------
Name: Christoph Neut
Title: Managing Director
TECHTEAM GLOBAL, INC.
- ------------------------------------- ----------------------------------------
Name: Marc J. Lichtman
Title: Vice President, Chief Financial
Officer and Treasurer
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