EXHIBIT 10.1
AMENDMENT AND TERMINATION AGREEMENT
AMENDMENT AND TERMINATION AGREEMENT (the "Agreement"), dated as of July
18, 2002, by and among Pemstar Inc., a Minnesota corporation, with headquarters
located at 0000 Xxxxxxxxxx Xxxxx, X.X., Xxxxxxxxx, Xxxxxxxxx 00000 (the
"Company"), and Smithfield Fiduciary LLC, a Cayman Islands limited liability
company, and Citadel Equity Fund Ltd., a Cayman Islands limited liability
company (individually, a "Buyer" and collectively, the "Buyers").
WHEREAS:
A. On May 3, 2002, the Company and each Buyer executed and delivered a
Securities Purchase Agreement (the "Securities Purchase Agreement") and a
Registration Rights Agreement (the "Registration Rights Agreement") relating to
the securities issuable according to the terms and conditions of the Securities
Purchase Agreement;
B. On May 10, 2002, (i) the Company issued and sold (A) $5,000,000 in
convertible notes of the Company according to the terms and conditions of the
Securities Purchase Agreement (the "Initial A-1 Notes"), (B) warrants
exercisable for 788,312 shares of Common Stock according to the terms and
conditions of the Securities Purchase Agreement (the "Initial A-1 Warrants") and
(C) warrants exercisable for 1,000,000 shares of Common Stock (the "Ancillary
Warrants") according to the terms and conditions of a letter agreement dated May
8, 2002 between the Company and the Buyers (the "May 8 Letter Agreement");
C. Upon the terms and conditions stated in this Agreement, the Company
and each Buyer wishes to terminate any and all obligations (i) to purchase and
sell any additional securities under the Securities Purchase Agreement, (ii) to
register any such additional securities and (iii) to obtain shareholder approval
of the issuance and sale of any securities issued or issuable under the
Securities Purchase Agreement; and
D. Upon the terms and conditions stated in this Agreement and in
consideration for the termination of such obligations, the Company will (i)
issue to each of the Buyers a warrant (the "Termination Warrants") exercisable
for 125,000 shares of Common Stock per Buyer (as exercised, collectively the
"Termination Shares"), (ii) provide for certain registration rights relating to
the Termination Shares and (iii) provide certain rights to the Buyers to
participate in future offerings of equity securities of the Company.
E. Terms used but not defined herein shall have the meaning used in the
Securities Purchase Agreement. NOW THEREFORE, the Company and each Buyer hereby
agree as follows:
1. AMENDMENT OF SECURITIES PURCHASE AGREEMENT.
(a) Termination of Obligations to Sell and Purchase Securities. Any and
all obligations of the Company to issue and sell to the Buyers, and any rights
of the Buyers to
purchase from the Company, any securities of the Company on and after the date
hereof under the terms and conditions of the Securities Purchase Agreement,
including without limitation any obligations to issue, sell and purchase
Subsequent Notes, Subsequent Warrants, Additional Notes and Additional Warrants,
pursuant to Sections 1(a)(ii), 1(a)(iii), 1(a)(iv) of the Securities Purchase
Agreement or otherwise, are hereby terminated, and Sections 1(a)(ii), 1(a)(iii)
and 1(a)(iv) shall be deleted in their entirety from the Purchase Agreement.
From and after the date hereof, the Company shall have no obligation to issue
Pricing Period Notices, Limit Notices or Available Note Notices to any Buyer,
and Section 1(h) shall be deleted in its entirety from the Securities Purchase
Agreement.
(b) Termination of Obligation to Solicit Shareholder Approval. Any and
all obligations of the Company to solicit shareholder approval of the issuance
of any securities issued or issuable under the Securities Purchase Agreement and
to cause the Board of Directors of the Company to recommend that they approve
such proposal pursuant to Section 4(n) of the Securities Purchase Agreement are
hereby terminated, and Section 4(n) shall be deleted in its entirety from the
Securities Purchase Agreement.
2. AMENDMENT OF REGISTRATION RIGHTS AGREEMENT.
(a) Termination of Certain Obligations to File Registration Statements.
Sections 2(a)(ii) and 2(a)(iii) of the Registration Rights Agreement shall be
deleted in their entirety.
(b) Inclusion of Securities Issuable Pursuant to the Termination
Warrants. The Company and the Buyers agree that (i) the shares of Common Stock
issued or issuable upon exercise of the Termination Warrants and (ii) any shares
of capital stock issued or issuable with respect to such shares of Common Stock
or the Termination Warrants as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to any
limitation on exercise of the Termination Warrants (the "Termination
Securities") shall be General Registrable Securities as that term is defined in
the Registration Rights Agreement, and the definition of General Registrable
Securities in the Registration Rights Agreement is hereby amended to include
such securities in addition to the securities currently within the definition of
General Registrable Securities. The Company and the Buyers agree that the
definition of Initial Registrable Securities in the Registration Rights
Agreement is hereby amended to included the General Registrable Securities (as
that term is amended by this Agreement) relating to the Termination Warrants
issued on or prior to the trading day immediately preceding the date the Initial
Registration Statement is initially filed with the SEC.
3. ISSUANCE OF WARRANTS AND REPRESENTATIONS AND WARRANTIES.
(a) Issuance of Warrants. The Company hereby agrees to issue the
Termination Warrants on the date of this Agreement. The Termination Warrants
will be evidenced by a warrant agreement in substantially the form of Exhibit I
to the Securities Purchase Agreement, except that (a) the exercise price of the
Warrants will equal $1.62 per Termination Share (as appropriately adjusted for
any stock splits, stock dividends, stock
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combinations and other similar transactions of the Common Stock which occur
after the date of this Agreement) and (b) each Buyer's Termination Warrant will
be exercisable for an aggregate of 125,000 shares of Common Stock.
(b) Representations and Warranties of the Company. The Company hereby
represents and warrants to each Buyer as follows:
(i) Organization. The Company is duly organized and validly existing in
good standing under the laws of the jurisdiction of its organization.
The Company has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and is
registered or qualified to do business and in good standing in each
jurisdiction where the failure to be so qualified or be in good
standing would have a material adverse effect on the business,
properties, assets, operations, results of operations, financial
condition or prospects of the Company and its Subsidiaries, if any,
taken as a whole, or on the transactions contemplated hereby or by the
agreements and instruments to be entered into in connection herewith,
or on the authority or ability of the Company to perform its
obligations under this Agreement and the Termination Warrants.
(ii) Authorization; Enforcement; Validity. The Company has all
requisite power and authority to execute, deliver and perform the
Agreement and the Termination Warrants and to issue the Termination
Shares in accordance with the terms thereof. The Agreement and the
Termination Warrants have been duly authorized and validly executed and
delivered by the Company and constitute legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and similar laws relating to creditors' rights generally
and except as enforceability may be limited by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) Issuance of Securities. A number of shares of Common Stock has
been duly authorized and reserved for issuance which equals 100% of the
number of shares of Common Stock issuable upon exercise of the
Termination Warrants (subject to adjustment pursuant to the Company
covenants set forth in the Termination Warrants). Upon exercise in
accordance with the Termination Warrants, the Termination Shares will
be duly and validly issued, fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof, with
the holders being entitled to all rights accorded to a holder of Common
Stock. Subject to the accuracy as to factual matters of the Buyers'
representations in Section 3(c), the issuance by the Company of the
Termination Warrants and the Termination Shares is exempt from
registration under the 1933 Act.
(iv) No Conflicts. The execution, delivery and performance of this
Agreement and the Termination Warrants by the Company and the
consummation by the Company of the transactions contemplated hereby and
thereby (including, without limitation, the reservation for issuance
and issuance of the Termination Shares) will not (i) result in a
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violation of the Articles of Incorporation, any Certificate of
Designations, Preferences and Rights of any outstanding series of
preferred stock of the Company or the Bylaws, (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material
agreement, indenture or instrument to which the Company or any of its
Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and the rules and regulations of
the Principal Market) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or any of
its Subsidiaries is bound or affected.
(v) No General Solicitation. Neither the Company, nor any of its
affiliates, nor any Person acting on its or their behalf, has engaged
in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offer of the
Termination Warrants.
(vi) No Integrated Offering. None of the Company, its Subsidiaries, any
of their affiliates, and any Person acting on their behalf has,
directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security (other than securities offered
or sold to the Buyers pursuant to the Securities Purchase Agreement and
the May 8 Letter Agreement) under circumstances that would cause the
offering of the Termination Warrants and Termination Shares to be
integrated with prior offerings by the Company for purposes of any
applicable shareholder approval provision, including, without
limitation, under the rules and regulations of any exchange or
automated quotation system on which any of the securities of the
Company are listed or designated. None of the Company, its
Subsidiaries, their affiliates and any Person acting on their behalf
will take any action or steps referred to in the preceding sentence
that would cause the offering of the Termination Securities to be
integrated with other offerings for purposes of any such shareholder
approval provision.
(vii) Material Nonpublic Information. Other than the terms of this
Agreement and the transactions contemplated by this Agreement, all of
which shall be publicly disclosed in the 8-K Filing (as defined in
Section 5(a)), neither the Company nor any of its Subsidiaries nor any
of their officers, directors, employees or agents have provided the
Buyers with any material, nonpublic information.
(c) Representations and Warranties of Each Buyer. Each Buyer hereby
represents and warrants to the Company with respect to only itself as follows:
(i) Authorization; Enforcement; Validity. Such Buyer is a validly
existing corporation, partnership, limited liability company or other
entity. Such Buyer has all requisite corporate, partnership, limited
liability or other organizational power and authority to execute,
deliver and perform its obligations under the Agreement in accordance
with the terms hereof. The Agreement has been duly authorized and
validly executed and delivered by such Buyer and constitutes the valid
and binding obligations of such Buyer enforceable against such Buyer in
accordance with its terms, except as
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enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and similar laws relating to
creditors' rights generally and except as enforceability may be limited
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(ii) Exemption of Offering. Such Buyer is an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D. Such Buyer is
acquiring the Termination Warrants and, upon exercise of the
Termination Warrants (other than pursuant to a Cashless Exercise (as
defined in Section 1(d) of the Termination Warrants)), will acquire the
Termination Shares issuable upon exercise thereof, for its own account
and not with a view towards, or resale in connection with, the public
sale or distribution thereof, except pursuant to sales registered or
exempted under the 1933 Act, provided, however, that by making the
representations herein, such Buyer does not agree to hold any of the
Termination Warrants or Termination Shares for any minimum or other
specific term and reserves the right to dispose of the Termination
Warrants or Termination Shares at any time in accordance with or
pursuant to a registration statement or an exemption under the 1933
Act.
4. RIGHTS OF PARTICIPATION.
(a) Offering of Additional Securities. If, during a period commencing
on the date hereof and ending on the date that is six months following the date
hereof, the Company should offer to sell additional equity securities of the
Company (or rights to purchase such equity securities or securities convertible
into such equity securities) other than Excluded Offers (collectively, the
"Offered Securities"), then following the determination of the purchase price of
such Offered Securities, the Company shall offer to sell to each Buyer, upon the
same terms and conditions as the Company offers to sell the Offered Securities,
a number of Offered Securities equal to 10% of the Offered Securities. Such
offer shall be made by written notice given to each Buyer, shall specify therein
the amount of the Offered Securities, the purchase price of the Offered
Securities and the other material terms of such offer and shall include a copy
of any agreements relating thereto. Each Buyer shall have a period of five (5)
Business Days from the date such notice is delivered within which to accept such
offer in whole or in part. Such offer may only be accepted by a Buyer by
providing the Company written notice within such five (5) Business Day period,
together with payment to the Company of the applicable purchase price; provided,
however, that a Buyer shall not be required to pay the applicable purchase price
prior to the closing of the offer of the Offered Securities with the purchasers
other than the Buyers. If a Buyer is unwilling to purchase such shares on the
same terms and conditions as the purchasers of the Offered Securities, the
Company shall have no obligation to sell any Offered Securities to such Buyer.
Without limitation to the foregoing and for the avoidance of doubt, the Company
may close on the offer of the Offered Securities prior to the offer of the
Offered Securities to the Buyers in accordance with this Section 4(a).
(b) Excluded Offers. "Excluded Offers" mean any offers to sell a
security of the Company (or rights to purchase such securities) (i) under the
terms of any Company employee, consultant or director stock option plan,
employee stock purchase plan or employee stock repurchase plan which has been
approved by the Board of Directors of the Company or (ii)
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through a firm commitment underwritten public offering registered under the
Securities Act of 1933, as amended.
5. COVENANTS.
(a) Current Report on Form 8-K. At or before 8:30 a.m., New York Time,
on the first Business Day following the date of this Agreement, the Company
shall file a Current Report on Form 8-K describing the terms of this Agreement
in the form required by the 1934 Act, and attaching the Agreement as an exhibit
to such filing (the "8-K Filing").
(b) Listing. The Company shall promptly secure the listing of all of
the Termination Securities upon each national securities exchange and automated
quotation system, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance) and shall maintain, so long as any
other shares of Common Stock shall be so listed, such listing of all Termination
Securities from time to time issuable under the terms of the Termination
Warrants or the Agreement. The Company shall maintain the Common Stock's
authorization for quotation on the Nasdaq National Market or obtain a listing on
the NYSE. The Company shall pay all fees and expenses in connection with
satisfying its obligations under this Section 5(b).
(c) Pledge of Securities. The Company acknowledges and agrees that the
Termination Securities may be pledged by an Investor (as defined in the
Registration Rights Agreement) in connection with a bona fide margin agreement
or other loan or financing arrangement that is secured by the Termination
Securities. The pledge of Termination Securities shall not be deemed to be a
transfer, sale or assignment of the Termination Securities hereunder, and no
Investor effecting a pledge of Termination Securities shall be required to
provide the Company with any notice thereof or otherwise make any delivery to
the Company pursuant to this Agreement or the Termination Warrants. At the
appropriate Investor's expense, the Company hereby agrees to execute and deliver
such reasonable documentation as a pledgee of the Termination Securities may
reasonably request in connection with a pledge of the Termination Securities to
such pledgee by an Investor.
6. MISCELLANEOUS.
(a) Status of Securities Purchase Agreement and Registration Rights
Agreement. Except as specifically amended or terminated by the terms of this
Agreement, all rights and obligations of the parties under, and all terms and
conditions of, the Securities Purchase Agreement and the Registration Rights
Agreement shall remain in full force and effect. This Agreement has no effect on
(i) the Initial A-1 Notes and Initial A-1 Warrants issued pursuant to the
Securities Purchase Agreement, (ii) the Ancillary Warrants, (iii) the May 8
Letter Agreement, (iv) the letter agreement dated May 10, 2002 between the
Company and the Buyers and (v) the Registration Rights Agreement dated as of May
10, 2002 between the Company and the Buyers (the "May 10 Registration Rights
Agreement"), and all of the foregoing shall remain in full force and effect,
including the obligation of the Company to issue shares of Common Stock upon
conversion or exercise, as the case may be, of the Initial A-1 Notes, the
Initial A-1 Warrants and the Ancillary Warrants.
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(b) Governing Law; Jurisdiction; Jury Trial. All questions concerning
the construction, validity, enforcement and interpretation of this Agreement
shall be governed by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. Each party hereby irrevocably
waives any right it may have, and agrees not to request, a jury trial for the
adjudication of any dispute hereunder or in connection with or arising out of
this agreement or any transaction contemplated hereby.
(c) Counterparts. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
(d) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(e) Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
(f) Notices. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one Business Day after deposit with
an overnight courier service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:
If to the Company:
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Pemstar Inc.
0000 Xxxxxxxxxx Xxxxx X.X.
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Executive Vice President,
Legal and Human Resources
With a copy to:
Xxxxxx & Whitney LLP
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxx, Esq.
If to a Buyer, to its address and facsimile number set forth on the Schedule of
Buyers attached to the Securities Purchase Agreement, with copies to such
Buyer's representatives as set forth on the Schedule of Buyers attached to the
Securities Purchase Agreement, or to such other address and/or facsimile number
and/or to the attention of such other Person as the recipient party has
specified by written notice given to each other party five days prior to the
effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(g) Successors and Assigns. Subject to the consent provisions contained
in this Section 6(g), this Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, including
any purchasers of the Termination Warrants. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the holders of Termination Warrants representing a majority of the
aggregate number of shares of Common Stock issuable upon exercise of the
Termination Warrants then outstanding including by merger or consolidation,
except pursuant to an Organic Change (as defined in Section 4 of the Termination
Warrants) with respect to which the Company is in compliance with Section 4(b)
of the Termination Warrants. A Buyer may assign some or all of its rights
hereunder without the consent of the Company, in which event such assignee shall
be deemed to be a Buyer hereunder with respect to such assigned rights;
provided, however, that any such assignment shall not release such Buyer from
its obligations hereunder unless such obligations are assumed by such assignee
and the Company has consented to such assignment and assumption, which consent
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing
sentence, a Buyer may not assign any of its rights under Section 4 hereof other
than to an affiliate of such Buyer without the prior written consent of the
Company.
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(h) Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
7. MUTUAL GENERAL RELEASE.
(a) General Release of the Company. In further consideration of the
Company entering into this Agreement and the releases set forth in Section 7(b)
hereof, effective as of the date this Agreement, each Buyer, severally and not
jointly, on behalf of itself and its heirs, executors, administrators, devisees,
trustees, partners, directors, officers, shareholders, employees, consultants,
representatives, predecessors, principals, agents, parents, associates,
affiliates, subsidiaries, attorneys, accountants, successors,
successors-in-interest and assignees (collectively, the "Investor Releasing
Persons"), hereby waives and releases, to the fullest extent permitted by law,
but subject to Section (7)(c) below, any and all claims, rights and causes of
action, whether known or unknown (collectively, the "Investor Claims"), that any
of the Investor Releasing Persons had or currently has against (i) the Company,
(ii) any of the Company's current or former parents, shareholders, affiliates,
subsidiaries, predecessors or assigns, or (iii) any of the Company's or such
other persons' or entities' current or former officers, directors, employees,
agents, principals, investors, signatories, advisors, consultants, spouses,
heirs, estates, executors, attorneys, auditors and associates and members of
their immediate families (collectively, the "Company Released Persons"),
including, without limitation, any Investor Claims arising out of or relating to
the Securities Purchase Agreement and the Registration Rights Agreement
(collectively, the "Released Documents") other than Investor Claims arising
after the date of this Agreement.
(b) General Release of the Buyers. In further consideration of the
Buyers entering into this Agreement and the releases set forth in Section 7(a)
hereof, effective as of the date of this Agreement, the Company on behalf of
itself and its heirs, executors, administrators, devisees, trustees, partners,
directors, officers, shareholders, employees, consultants, representatives,
predecessors, principals, agents, parents, associates, affiliates, subsidiaries,
attorneys, accountants, successors, successors-in-interest and assignees
(collectively, the "Company Releasing Persons"), hereby waives and releases, to
the fullest extent permitted by law, but subject to Section 7(c) below, any and
all claims, rights and causes of action, whether known or unknown (collectively,
the "Company Claims"), that any of the Company Releasing Persons had or
currently has against (i) the Buyers, (ii) any of the Buyers' respective current
or former parents, shareholders, affiliates, subsidiaries, predecessors or
assigns, or (iii) any of the Buyers' or such other persons' or entities' current
or former officers, directors, employees, agents, principals, investors,
signatories, advisors, consultants, spouses, heirs, estates, executors,
attorneys, auditors and associates and members of their immediate families
(collectively, the "Investor Released Persons"), including, without limitation,
any Company Claims arising out
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of or relating to the Released Documents other than Company Claims arising after
the date of this Agreement.
(c) Exception to the Mutual Release. The Company and each of the Buyers
acknowledge that the releases set forth in Sections 7(a) and 7(b) above do not
affect any claim which any Company Releasing Person or Investor Releasing Person
may have under this Agreement, Section 4(g) or Section 9(k) of the Securities
Purchase Agreement, Sections 5, 6 or 7 of the Registration Rights Agreement or
the May 10 Registration Rights Agreement or the Initial A-1 Notes, Initial A-1
Warrants or Ancillary Warrants relating to any Company Claims or Buyer Claims
arising, or performance thereunder, after the date of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each Buyer and the Company have caused this
Amendment and Termination Agreement to be duly executed as of the date first
written above.
COMPANY: BUYERS:
PEMSTAR INC. SMITHFIELD FIDUCIARY LLC
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Chill
-------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxx X. Chill
Title: Executive Vice President, Title: Authorized Signatory
Legal and Human Resources
CITADEL EQUITY FUND LTD.
By: /s/ Xxxxxxx X. Simpler
-----------------------------------
Name: Xxxxxxx X. Simpler
Title: Vice President
