THE CHERRY CORPORATION
FIRST AMENDMENT
Dated as of February 15, 1999
To
Note Agreement
Dated as of July 15, 1995
and the Notes
Re: $25,000,000 6.99% Senior Notes
Due: July 15, 2007
FIRST AMENDMENT TO NOTE AGREEMENT AND THE NOTES
This First Amendment dated as of February 15, 1999 (the or
this "First Amendment") to the Note Agreement dated as of July 15, 1995 and the
Notes (as hereinafter defined) is between The Cherry Corporation, a Delaware
corporation (the "Company"), and each of the institutions which is a signatory
to this First Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore
entered into that certain Note Purchase Agreement dated as of July 15, 1995 (the
"Note Agreement"). The Company has heretofore issued the $25,000,000 6.99%
Senior Notes Due July 15, 2007 (the "Notes") dated July 15, 1995 pursuant to the
Note Agreement. The Noteholders are the holders of [100%] of the principal
amount of the Notes presently outstanding.
B. The Company and the Noteholders now desire to amend the
Note Agreement and the Notes in the respects, but only in the respects,
hereinafter set forth.
C. Capitalized terms used herein shall have the respective
meanings described thereto in the Note Agreement unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and
all other acts and things necessary to make this First Amendment a valid, legal
and binding instrument according to its terms for the purposes herein expressed
have been done or performed.
NOW, THEREFORE, the Company and the Noteholders, for good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENT.
1.1 Section 5.10(b) of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"(b) The Company will not permit any
Restricted Subsidiary to issue or sell any shares of
stock of any class (including as "stock" for the
purposes of this Section 5.10, any warrants, rights
or options to purchase or otherwise acquire stock or
other Securities exchangeable for or convertible
into stock) of such Restricted Subsidiary to any
Person other than the Company or a Wholly-owned
Restricted Subsidiary, except (i) for the purpose of
qualifying directors, (ii) in satisfaction of the
validly pre-existing preemptive rights of minority
shareholders in connection with the simultaneous
issuance of stock to the Company and/or a Restricted
Subsidiary whereby the Company and/or such
Restricted Subsidiary maintain their same
proportionate interest in such Restricted
Subsidiary, and (iii) the Company's Restricted
Subsidiary, Cherry Semiconductor Corporation
("Cherry Semiconductor"), may issue or sell to
officers, directors and employees of Cherry
Semiconductor stock (or warrants, rights or options
to purchase or otherwise acquire stock or other
Securities exchangeable for or convertible into
stock) of Cherry Semiconductor, provided, that after
any such issuance or sale the Company shall continue
to own [70%] of the Voting Stock of Cherry
Semiconductor on a fully diluted basis (after giving
effect to the exercise of any such warrants, rights
or options)."
SECTION 2. MISCELLANEOUS.
2.1 This First Amendment shall be construed in connection with and as
part of the Note Agreement and the Notes, and except as modified and expressly
amended by this First Amendment, all terms, conditions and covenants contained
in the Note Agreement and the Notes are hereby ratified and shall be and remain
in full force and effect.
2.2 Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Note Agreement and the Notes without making specific reference
to this First Amendment but nevertheless all such references shall include this
First Amendment unless the context otherwise requires.
2.3 The descriptive headings of the various Sections or parts of this
First Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
2.4 This First Amendment shall be governed by and construed in
accordance with Illinois law.
2.5 The execution hereof by you shall constitute a contract between us
for the uses and purposes hereinabove set forth, and this First Amendment may be
executed in any number of counterparts, each executed counterpart constituting
an original, but all together only one agreement.
THE CHERRY CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇
Its: V.P. Finance
Accepted and Agreed to:
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Authorized Signatory
EMPLOYERS LIFE INSURANCE COMPANY
OF WAUSAU
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Authorized Signatory
