Agreement dated November 13, 2001
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This Agreement (the "Agreement") is made as of November 13, 2001 among SEMX
Corporation, a Delaware corporation (the "Company"), ACI CapitalAmerica Funds,
LP ("ACI") and Exeter Venture Lenders L.P. ("Exeter") (each of ACI and Exeter
hereinafter individually referred to as a "Purchaser" and collectively referred
to as the "Purchasers").
The purpose of this Agreement is to set forth the parties' agreement
regarding certain provisions of the Certificate of Designation described in the
Preferred Stock Purchase Agreement dated as of June 1, 2000 between the parties
hereto (the "Purchase Agreement") and the Warrants dated June 1, 2000 issued to
each of ACI and Exeter (collectively, the "Warrants" and individually a
"Warrant"). Defined terms used herein and not defined herein, shall have the
meanings ascribed to them in the Purchase Agreement, the Certificate of
Designation and the Warrants.
In consideration of the mutual agreements set forth herein the parties
agree as follows:
1. Notwithstanding Section 5(d) of the Certificate of Designation, in the
event that a holder shall require redemption of any Series B Preferred Stock as
a result of an occurrence on, prior or after the date hereof of a Triggering
Event specified in Section 6(c) of the Certificate of Designation resulting from
the Company's failure to comply with Section 4(b)(iii) of the Certificate of
Designation, the redemption price specified in Section 5(d) shall not be due and
payable prior to December 1, 2002.
2. Notwithstanding Sections 7(a) and 2(c)(i) of the Certificate of
Designation, the Dividend Rate shall not be increased as provided in those
Sections prior to March 31, 2002.
3. The Company shall not, and shall not permit any of its subsidiaries to,
without first obtaining the prior written consent of ACI (which right to consent
may be assigned to ACI Capital Co., Inc. or an affiliate thereof) issue any
shares of its Common Stock or any rights, warrants or options to purchase its
Common Stock or any securities convertible into its Common Stock other than
pursuant to a Permitted Issuance, as defined in Section 8 of the Certificate of
Designation, but provided that solely for the purposes of this paragraph the
phrase "five percent (5%)" in such definition shall be amended to read "thirty
percent (30%)".
4. Effective March 31, 2002 the first sentence of Section 14.1 of each
Warrant is hereby amended as follows:
a. The words "If a Change of Control occurs at any time during the
Exercise Period" shall be deleted and the following words shall be substituted
therefor: "If the Underlying Series B Preferred Stock hereafter is redeemed or
heretofore has been redeemed pursuant to Section 5 of the Series B Certificate
of Designation".
b. The words "or within 60 days" shall be deleted in the third line
thereof and the words "at any time" shall be substituted therefor.
c. The words "of such Change of Control" shall be deleted in the fourth
line thereof and the following words shall be substituted therefor: "of such
redemption".
d. The words "Section 5(c)" shall be deleted and the words "Section 5"
shall be substituted therefor.
5. At the request of each Purchaser, a new Warrant shall be issued to such
Purchaser reflecting the amendments described in paragraph 4, upon surrender of
the existing Warrants.
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6. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and each of
the parties hereto may execute this Agreement by signing any such counterpart.
7. From and after the date of this Agreement, upon the request of the
Purchasers, the Company and each Subsidiary shall execute and deliver such
instruments, documents and other writings as may be necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of this
Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed on its behalf as of the date first above written.
SEMX CORPORATION
By: /s/
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Name:
Title:
ACI CAPITAL AMERICA FUNDS, LP
By: ACI Capital America GP, LLC,
its General Partner
By: /s/
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Name: Xxxxx X. Xxxx
Title: Managing Member
EXETER VENTURE LENDERS, L.P.
By: Exeter Venture Advisors, Inc., its
Corporate General Partner
By: /s/
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
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