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EXHIBIT 10.2
AMENDMENT NO. 1 TO
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amendment No. 1 (this "Amendment") to the Amended and
Restated Rights Agreement (the "Rights Agreement"), dated as of the 23rd day of
February, 1995, by and between Wyle Electronics (formerly known as Wyle
Laboratories), a California corporation (the "Company"), and Chemical Bank (as
successor to Security Pacific National Bank), as rights agent, is dated as of
this 2nd day of July, 1997. Capitalized terms used herein without definition
shall have the meanings ascribed to them in the Rights Agreement.
WHEREAS, ChaseMellon Shareholder Services, L.L.C. (the "Rights
Agent") has, by virtue of its acquisition of Chemical Bank, assumed the
obligations of Chemical Bank as rights agent under the Rights Agreement; and
WHEREAS, the Rights Agent has requested an amendment to the
Rights Agreement for the purpose of acknowledging such assumption of the
obligations of Chemical Bank; and
WHEREAS, Xxxx Xxxxxxx XX, a corporation organized under the
laws of Germany ("Parent"), EBV Electronics Inc., a Delaware corporation and an
indirect wholly owned subsidiary of Parent ("Purchaser"), and the Company,
intend to enter into that certain Agreement and Plan of Merger, dated as of
July 3, 1997 (the "Merger Agreement"), which contemplates that Purchaser will
make an all cash tender offer for all of the outstanding shares of Common Stock
of the Company; and
WHEREAS, Section 27 of the Rights Agreement provides that
until the occurrence of certain events that have not occurred as of the date
hereof, a majority, but not less than three, of the Independent Directors of
the Company may, without the approval of any holders of Rights, direct the
Company and the Rights Agent to supplement or amend any provision of the Rights
Agreement in any manner, whether or not such supplement or amendment is adverse
to any holders of Rights, and the Company and the Rights Agent shall so
supplement or amend such provision; and
WHEREAS, on July 2, 1997, the Board of Directors of the
Company, by a unanimous vote, resolved to approve and adopt the amendments to
the Rights Agreement that are reflected in this Amendment;
NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual agreements set forth herein, and for the benefit of the holders of
Rights, the parties hereto hereby agree as follows:
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1. The definition of "15% Ownership Date" in Section
1(z) shall be amended by deleting the period at the end of such definition and
adding the following language thereto:
"; provided, however, that the announcement and consummation
of the transactions contemplated by that certain Agreement and Plan of
Merger, dated as of July 3, 1997, by and among Xxxx Xxxxxxx XX, a
corporation organized under the laws of Germany ("Parent"), EBV
Electronics Inc., a Delaware corporation and an indirect wholly owned
subsidiary of Parent ("Purchaser"), and the Company (the "Merger
Agreement"), shall not constitute a 15% Ownership Date."
2. The definition of "15% Shareholder" in Section 1(aa)
shall be amended by adding the following sentence to the end of the definition:
"Notwithstanding the foregoing, neither Parent nor Purchaser
shall be or be deemed to be a 15% Shareholder by virtue of the
execution of, or consummation of the transactions contemplated by, the
Merger Agreement."
3. Section 3(a) shall be amended by deleting the period
at the end of such section and adding the following language thereto:
"; provided, however, that neither the announcement or
execution of the Merger Agreement, nor the consummation of the
transactions contemplated therein, shall trigger or give rise to a
Distribution Date."
4. Section 21 of the Rights Agreement is hereby amended
by deleting the fifth sentence in its entirety and replacing it with the
following language:
"Any successor Rights Agent, whether appointed by the Company
or by such a court, shall be either (a) a corporation organized and
doing business under the laws of the United States or of any state of
the United States, in good standing, which is authorized under such
laws to exercise corporate trust powers and is subject to supervision
or examination by federal or state authority and which has at the time
of its appointment as Rights Agent a combined capital and surplus of
at least $100,000,000 or (b) an affiliate of such a corporation."
5. Except as set forth herein, the Rights Agreement
shall remain in full force and effect.
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6. This Amendment shall be deemed to be a contract made
under the laws of the State of California, and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed entirely within such State.
7. This Amendment may be executed in any number of
counterparts, and each such counterpart shall for all purposes be deemed to be
an original, with all such counterparts together constituting one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first written above. In
executing and delivering this Amendment, the Rights Agent shall be entitled to
all the privileges and immunities afforded to the Rights Agent under the terms
and conditions of the Rights Agreement.
Attest: WYLE ELECTRONICS
By: /s/ XXXXXXX X. XXXXXXX By: /s/ X.X. XXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxx Name: X.X. Xxxxxxx, Xx.
Title: Senior Vice President Title: Executive Vice President--
and Secretary Finance, Chief Financial
Officer
Attest: CHASEMELLON SHAREHOLDER SERVICES,
L.L.C., as Successor Rights Agent
By: /s/ XXXXX XXXXXXXXX By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx Xxxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Vice President Title: Assistant Vice President
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