Exhibit 6
Amended and Restated Agreement dated March 29, 2002
This Amended and Restated Agreement (this "Agreement") is made as of
March 29, 2002 among SEMX Corporation, a Delaware corporation (the "Company"),
ACI Capital America Fund, 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").
RECITALS
WHEREAS, the parties hereto entered into that certain Agreement dated
November 13, 2001 (the "First Amendment"), which amended 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 each individually, a "Warrant");
WHEREAS, it was the intention of the parties, at the time they executed
the First Amendment regarding the Preferred Shares and associated Warrants, that
the First Amendment would not cause the Company to incur any liability by reason
of the amendments to Section 14.1 of the Warrants (the "Section 14.1
Amendments") that were to become effective March 31, 2002, in accordance with
paragraph 4 of the First Amendment;
WHEREAS, the Section 14.1 Amendments did not clearly reflect the
intention of the parties; and
WHEREAS, the parties desire to amend and restate the First Amendment.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein the parties hereby agree to amend and restate the First Amendment as
follows (Capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in the Purchase Agreement, the Certificate of
Designation and the Warrants):
1. Notwithstanding Section 5(d) and Section 7(b) 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 to 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 January 3, 2003.
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 January 3, 2003.
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. Clause (1) in the definition of "Change of Control" in Section 1 of
the Warrant is hereby amended and restated in its entirety to read as follows:
(1) any Person or group (as that term is used in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) of persons or
entities (in each case, a "Beneficial Owner"), in a single transaction or
through a series of related transactions, shall have become the beneficial owner
of thirty percent (30%) or more (by voting power or otherwise) of the securities
of the Company ordinarily having the right to vote in the election of directors;
5. The parties hereto hereby agree and acknowledge that the Section
14.1 Amendments contemplated by the First Agreement shall not take effect.
6. The first sentence of Section 14.1 of each Warrant is hereby amended
and restated in its entirety to read as follows:
14.1. Obligations to Repurchase Warrant. (a) The Holder may not demand
a repurchase of this Warrant in accordance with this Section 14.1 solely as a
result of a redemption of the Underlying Series B Preferred Stock pursuant to
Section 5 of the Series B Certificate of Designation unless, for the calendar
year 2002, there was no period of twenty (20) consecutive Trading Days for which
the Daily Market Price of the Common Stock was greater than $5.00 per share. In
addition, except in the case of a Change of Control or a bankruptcy,
liquidation, dissolution or winding up of the affairs of the Company, whether
voluntary or involuntary (a "Bankruptcy Event"), the Holder may not demand a
repurchase of this Warrant in accordance with this Section 14.1 prior to January
3, 2003. Subject to the foregoing, if a Change of Control occurs at any time
during the Exercise Period, if a Bankruptcy Event occurs at any time during the
Exercise Period, or if the Underlying Series B Preferred Stock is redeemed
pursuant to Section 5 of the Series B Certificate of Designation, the Holder at
its election by notice to the Company (the "Put Notice"), may demand repurchase,
at any time concurrently with or following the occurrence of such Change of
Control, Bankruptcy Event or redemption, of the entire unexercised portion of
this Warrant, provided that (i) either (A) at the time of the election under
this Section 14.1, the Holder owns all of the shares of the Underlying Series B
Preferred Stock or (B) at the time the Holder acquired this Warrant, the Holder
also acquired all of the Underlying Series B Preferred Stock and, during the
period in which the Holder owned such shares, such shares were redeemed pursuant
to Section 5 of the Series B Certificate of Designation, and (ii) in the event
the Holder, at the time of the election under this Section 14.1, owns any shares
of the Underlying Series B Preferred Stock, such shares have been or are being
redeemed pursuant to Section 5 of the Series B Certificate of Designation prior
to or contemporaneously with the repurchase of this Warrant.
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7. At the request of each Purchaser, a new Warrant shall be issued to
such Purchaser reflecting the amendments described in paragraph 6 above, upon
surrender of the existing Warrants.
8. Within twenty (20) business days following the execution and
delivery of this Agreement, the Company shall deliver to the Purchasers warrants
("Additional Warrants") to purchase an aggregate of two hundred fifty thousand
(250,000) shares of the Company's Common Stock. The Additional Warrants shall be
allocated such that ACI receives Additional Warrants to purchase an aggregate of
two hundred twenty five thousand (225,000) shares of the Company's Common Stock
and Exeter receives Additional Warrants to purchase an aggregate of twenty five
thousand (25,000) shares of the Company's Common Stock. The shares of Common
Stock issuable upon exercise of the Additional Warrants are referred to as the
"Additional Warrant Shares." The terms and conditions of such Additional
Warrants shall be substantially the same as the terms and conditions of the
Warrants issued to the Purchasers in accordance with the terms and conditions of
the Purchase Agreement, except that such Additional Warrants shall (i) have an
initial exercise price equal to three dollars ($3.00) per share of the Company's
Common Stock, (ii) not contain the put right as is set forth in Section 14 of
the Warrants, (iii) not contain the right to dividend distributions as is set
forth in Section 17 of the Warrants and (iv) provide that the Common Stock
underlying such Additional Warrants shall be entitled to piggy back registration
rights comparable to those set forth in Section 3 of the Registration Rights
Agreement. Additionally, the Purchasers shall be entitled to, in respect of such
Additional Warrants, the same protection afforded to holders of Common Stock of
the Company under the Rights Plan.
9. In order to induce the Purchasers to enter into this Agreement and
purchase the Additional Warrants, the Company represents, warrants and covenants
to the Purchasers as follows:
(a) The Company has full corporate power and authority to
execute and deliver this Agreement and the Additional Warrants, to issue the
Additional Warrants and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by the Company of this
Agreement and the Additional Warrants and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by the
Board of Directors of the Company and no other corporate or shareholder action
on the part of the Company is necessary to authorize the execution, delivery or
performance by the Company of this Agreement or the Additional Warrants, the
issuance of the Additional Warrants or the consummation by it of the
transactions contemplated hereby and thereby. This Agreement has been, and the
Additional Warrants each will be, duly executed and delivered by the Company and
(assuming due and valid authorization, execution and delivery hereof by the
other parties hereto and thereto) this Agreement is, and the Additional Warrants
will be, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except that (i) such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws, now or hereafter in effect, affecting creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
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(b) Upon delivery of the Additional Warrants, the Additional
Warrants will be validly issued, fully paid and non-assessable and not subject
to preemptive (or similar) rights. If issued in accordance with the terms of the
Additional Warrants, the Additional Warrant Shares will be validly issued, fully
paid and non-assessable and not subject to preemptive (or similar) rights.
(c) The Company has authorized and reserved two hundred fifty
thousand (250,000) shares of Common Stock for issuance upon exercise of the
Additional Warrants.
(d) None of the execution, delivery or performance of either
this Agreement or any of the Additional Warrants by the Company, the issuance of
any Additional Warrants or the consummation by the Company of the transactions
contemplated hereby or thereby, nor compliance by the Company with any of the
provisions hereof or thereof will (i) conflict with or result in any breach of
any provision of the Certificate of Incorporation, as amended, or the By-Laws or
other organizational documents of the Company or of any of its Subsidiaries,
(ii) require on the part of the Company any filing with, or permit,
authorization, consent or approval of, any court, arbitral tribunal,
administrative agency or other governmental or regulatory authority or agency,
including, without limitation, any consent or approval of any federal, state,
local or foreign insurance industry agency, commission or other governing body,
except for in the case of clause (ii) filings, permits, authorizations, consents
and approvals as may be required under state securities or blue sky laws, and
the laws of other states in which the Company is qualified to do or is doing
business, (iii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any material note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which the
Company or any of its Subsidiaries is a party or by which any of them or any of
their properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company, any
of its Subsidiaries or any of their properties or assets.
10. 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.
11. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to the conflict
of laws principles thereof.
12. From and after the date of this Agreement, upon the request of the
Purchasers, the Company and its Subsidiaries 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, including, without limitation, entering into a registration rights
agreement with the Purchasers and amending the Rights Plan in furtherance of
paragraph 8 above.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amended
and Restated Agreement to be duly executed on its behalf as of the date first
above written.
SEMX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
ACI CAPITAL AMERICA FUND, LP
By: ACI Capital America GP, LLC,
its General Partner
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: Managing Member
EXETER VENTURE LENDERS, L.P.
By: Exeter Venture Advisors, Inc., its
Corporate General Partner
By: /s/ Xxxxx X. Xxx
-------------------------
Name: Xxxxx X. Xxx
Title: President
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