Exhibit 2.2
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this
"Second Amendment"), made and entered into as of the 5th day of September, 1997
by and among WESTERN MICRO TECHNOLOGY, a Delaware corporation and successor in
interest to Western Micro Technology, Inc., a California corporation ("WMT"),
STAR MANAGEMENT SERVICES, INC., a Delaware corporation (the "Company"), XXXXXX
X. XXXXX ("Stockholder 1") and CARLTON XXXXXX XXXXXXX XX ("Stockholder 2")
(Stockholder 1 and Stockholder 2 being hereinafter together referred to as the
"Stockholders"),
W I T N E S S E T H:
WHEREAS, WMT, the Company and the Stockholders have heretofore entered
into that certain Stock Purchase Agreement dated as of June 4, 1997 (the
"Purchase Agreement"); and
WHEREAS, the Stockholders and WMT have heretofore executed that certain
letter agreement dated July 22, 1997 (the "Extension Letter") extending the term
of the Purchase Agreement and amending the Purchase Agreement with respect to
certain other matters as set forth therein; and
WHEREAS, WMT, the Company and the Stockholders have heretofore executed
that certain Amendment to Stock Purchase Agreement dated August 29, 1997 (the
"First Amendment," and the Purchase Agreement as amended by the Extension Letter
and the First Amendment is hereinafter referred to as the "Amended Purchase
Agreement"); and
WHEREAS, WMT, the Company and the Stockholders desire to further amend
the Purchase Agreement in certain respects; and
WHEREAS, unless otherwise defined herein, terms defined in the Purchase
Agreement are used herein as defined therein:
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein contained, the parties hereto agree as follows:
8. The parties agree that the Amended Purchase Agreement, as amended
hereby, would automatically terminate as of the date hereof, unless the
Stockholders agree to extend such Agreement. Each of the parties hereto hereby
agrees to extend the term of the Agreement until September 30, 1997, subject to
earlier termination if WMT fails to fulfill its obligations hereunder or under
the Amended Purchase Agreement. WMT agrees to have all of the funds necessary to
consummate the contemplated transactions held in escrow, and ready for payment
to the Stockholders, on or before September 23, 1997.
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9. The parties had agreed in the Extension Letter that Stockholder 1
would receive his total payments due under Sections 2.2(a)(C) and (D) of the
Purchase Agreement at the time of Closing. Notwithstanding the foregoing, the
parties hereby agree that (a) Section 2.2(a)(C) of the Purchase Agreement is
hereby amended to provide that with respect to the $7,500,000 aggregate amount
which was to be paid to the Stockholders on the first anniversary of the
Closing, Stockholder 1 and Stockholder 2 shall be paid $2,595,575 and $918,788,
respectively, at the closing (such amounts reflect a discount at a rate of
8.5%), and $1,000,000 and $2,675,000, respectively, on the first anniversary of
the Closing and (b) Section 2.2(a)(D) of the Purchase Agreement is hereby
amended to provide that of the $7,500,000 aggregate amount which was to be paid
to the Stockholders on the first anniversary of the Closing, Stockholder 1 and
Stockholder 2 shall be paid $2,384,782 and $844,170, respectively, at the
Closing (such amounts reflect a discount at a rate of 8.5%) and $1,000,000 and
$2,675,000, respectively, on the second anniversary of the Closing. In the event
that WMT is unable to pay the entire amount due to the Stockholders on the first
anniversary of the Closing pursuant to Section 2.2(a)(C) of the Purchase
Agreement or the second anniversary of the Closing pursuant to Section 2.2(a)(D)
of the Purchase Agreement, any amounts paid by WMT to Stockholders shall be paid
in equal amounts to each of the Stockholders (up to the total amount due to such
Stockholder).
10. In the event that WMT fails to timely pay on the applicable Due
Date the entire amount due to Stockholder 1 on the first anniversary of the
Closing pursuant to Section 2.2(a)(C) of the Purchase Agreement or the second
anniversary of the Closing pursuant to Section 2.2(a)(D) of the Purchase
Agreement or any Earn-out Payment due under Section 2.6 of the Purchase
Agreement, Stockholder 1 shall be entitled to cause the XXX to terminate the XXX
Agreement with thirty (30) days prior written notice, such right to be in
addition to any other rights, payments or remedies to which Stockholder 1 may be
entitled. The form of XXX Agreement attached as Exhibit F to the Purchase
Agreement shall be amended to reflect such termination right. The parties
further agree that Exhibit B to the XXX Agreement shall be amended to reflect
the discount schedule attached hereto as Exhibit A.
11. WMT further agrees any WMT Shares issued to Stockholder 2 pursuant
to Section 2.2(a)(ii) of the Purchase Agreement or issued or issuable upon the
exercise of any warrant or warrants granted in connection with securing the
financing to consummate the acquisition of the Company or any other shares
otherwise issued by WMT shall not be included for purposes of calculating the
twenty percent (20%) limitation threshold set forth in Section 2.9 of the Stock
Purchase Agreement, as such threshold relates to the WMT Shares issuable upon
the exercise of any warrant or warrants granted pursuant to Section 2.7(a)(ii)
of the Purchase Agreement. WMT shall provide written assurances from NASDAQ,
reasonably satisfactory to the Stockholders, to such effect.
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12. The Amended Purchase Agreement shall remain in full force and
effect without change, except to the extent amended or modified hereby.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date and year first above written.
WESTERN MICRO TECHNOLOGY, INC.
By /s/ P. Xxxxx Xxxxx
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Title President & CEO
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STAR MANAGEMENT SERVICES, INC.
By /s/ Xxxxxx X. Xxxxx
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Title President & CEO
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Carlton Xxxxxx Xxxxxxx
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Carlton Xxxxxx Xxxxxxx XX
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