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Exhibit 4.2
FIRST AMENDMENT TO THE SEMX CORPORATION RIGHTS AGREEMENT
This amendment amends the Rights Agreement entered into between SEMX
CORPORATION and CONTINENTAL STOCK TRANSFER AND TRUST COMPANY, dated as of
June 15, 1999 (the "Rights Agreement").
BACKGROUND
WHEREAS:
A. The Corporation entered into the Rights Agreement to issue Rights to
the holders of its Common Shares;
B. The Corporation is simultaneously with the execution of this First
Amendment to the SEMX Corporation Rights Agreement entering into a Preferred
Stock Purchase Agreement among the Corporation, ACI Capital American Fund, LP,
and Exeter Venture Lenders, LP, (collectively, the "Warrant Holders") dated
June 1, 2000 (the "Preferred Stock Purchase Agreement");
C. Pursuant to the Preferred Stock Purchase Agreement the Corporation
is issuing to the Warrant Holders simultaneously herewith warrants (the
"Warrants") to purchase in the aggregate one million (1,000,000) Common Shares;
D. The Corporation desires to provide to the Warrant Holders the same
protection afforded to its Common Share Holders under the Rights Agreement; and
E. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Rights Agreement.
Accordingly, in consideration of the premises and the mutual agreements
set forth, the parties agree as follows:
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1. AMENDMENT TO SECTION 1(A). Clause (iii) of Section 1(a) of the
Rights Agreement is hereby amended by adding to the end thereof the following:
"or were issued pursuant to the Warrants."
2. AMENDMENT TO SECTION 3(A). Section 3(a) of the Rights Agreement is
hereby amended to read in its entirety as follows:
"(a) Until the earlier of (i) the close of business on the tenth
Business Day after the Shares Acquisition Date, or (ii) the close of
business on the tenth Business Day after the date of the commencement
of, or first public announcement of the intent to commence, a tender or
exchange offer by any Person (other than an Exempt Person) if upon
consummation thereof, any such Person other than an Exempt Person would
be the Beneficial Owner of 15% or more of the Common Shares then
outstanding (the earlier of such dates, including any such date which
is after the date of this Agreement and prior to the issuance of the
Rights, being herein referred to as the "Distribution Date"): (x) the
Rights will be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for Common Shares registered in the
names of the holders thereof or Warrant certificates, which Warrant
certificates were issued pursuant to the Preferred Stock Purchase
Agreement to the Warrant Holders (which certificates for Common Shares
or Warrants shall be deemed also to be Right Certificates) and not by
separate Right Certificates, and (y) the Rights will be transferable
only in connection with the transfer of the underlying Common Shares or
Warrants (including a transfer to the Corporation). As soon as
practicable after the Distribution Date, the Corporation will prepare
and execute and the Rights Agent will countersign, and the Rights
Agent, if requested by the Corporation, will send, by first-class,
insured, postage prepaid mail, or, if requested by or on behalf of a
holder, shall otherwise deliver, to each record holder of Common Shares
as of the close of business on the Distribution Date, and each holder
of the Warrants at the address of such holder shown on the records of
the Corporation, one or more Right Certificates, in substantially the
form of Exhibit B hereto (the "Right Certificates"), evidencing one
Right for each Common Share or one Right for each Common Share which
may be purchased pursuant to the terms of each of the Warrants, as the
case may be, so held, subject to adjustment. In the event that an
adjustment in the number of Rights per Common Share has been made
pursuant to Section 11(p) hereof, at the time of distribution the
Corporation shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so that Right
Certificates evidencing only whole numbers of Rights are distributed
and cash is paid in lieu of fractional Rights. As of and after the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates. The Rights Certificates issued in respect of the Warrants
shall have printed on them a legend stating:
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'These Rights are subject to forfeiture as provided in Section 18 of
the Warrant pursuant to which these Rights were issued, a copy of
which Warrant may be examined at the principal office of the
Corporation.'"
3. AMENDMENT TO SECTION 3(C). Section 3(c) of the Rights Agreement is
hereby amended to read in its entirety as follows:
"(c) Rights shall be issued in respect of all Common Shares and
Warrants that shall become outstanding after the Record Date but
prior to the earlier of the Distribution Date or the Expiration
Date, except as otherwise provided in Section 11(p). Certificates
representing such Common Shares and Warrants (and certificates
delivered pursuant to Sections 6 and 7(d)) shall also be deemed to
be Right Certificates, and shall have impressed on, printed on,
written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Rights Agreement between
SEMX Corporation and Continental Stock Transfer & Trust Company,
as Rights Agent, dated as of June 15, 1999 as the same may be
amended from time to time (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of SEMX
Corporation and available for inspection by the holder of this
certificate. Under certain circumstances set forth in the Rights
Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this
certificate. SEMX Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge within
five days after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes an
Acquiring Person or any Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement) and any subsequent
holder of such Rights may become null and void. In no event may
the Rights be exercised after June 29, 2009.
With respect to such certificates containing the foregoing legend,
until the Distribution Date (or the earlier Expiration or Final
Expiration Date), the Rights associated with the Common Shares and
Warrants represented by such certificates shall be evidenced by such
certificates alone and registered holders of Common Shares and
Warrants shall also be the registered holders of the associated
Rights, and the transfer of any such certificate shall also
constitute the transfer of the Rights associated with the Common
Shares and Warrants represented thereby. In
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the event that the Corporation purchases or otherwise acquires any
Common Shares after the Record Date but prior to the Distribution
Date, any Rights associated with such Common Shares shall be deemed
cancelled and retired so that the Corporation shall not be entitled
to exercise any Rights associated with the Common Shares which are
no longer outstanding."
4. AMENDMENT TO SECTION 11(P). Section 11(p) of the Rights Agreement
is hereby amended to read in its entirety as follows:
"(p) Anything in this Agreement to the contrary notwithstanding, in
the event that the Corporation shall at any time after the date of
this Agreement and prior to the Distribution Date (i) pay a dividend
on the outstanding Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares, (iii) combine the
outstanding Common Shares into a smaller number of shares, or (iv)
issue any shares of its capital stock in a reclassification of the
outstanding Common Shares, the number of Rights associated with each
Common Share then outstanding, or issued or delivered thereafter but
prior to the Distribution Date, shall be proportionately adjusted so
that the number of Rights thereafter associated with each Common
Share or Warrant following any such event (including other Common
Shares and Warrants issued after the date of such event, but prior
to the Distribution Date and including Common Shares which may be
purchased pursuant to the Warrants) shall equal the result obtained
by multiplying the number of Rights associated with each Common
Share and Warrant immediately prior to such event by a fraction the
numerator of which shall be the total number of Common Shares
outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of Common Shares
outstanding immediately following the occurrence of such event."
5. AMENDMENT TO SECTION 16 OF THE RIGHTS AGREEMENT. Section 16 of
the Rights Agreement is hereby amended to read in its entirety as follows:
SECTION 16. AGREEMENT OF RIGHTS HOLDERS. Every holder of a Right by
accepting the same consents and agrees with the Corporation and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common
Shares or Warrants;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer; and
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(c) the Corporation and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Shares or Warrants
certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Right Certificates or the associated Common Shares
or Warrants certificate made by anyone other than the Corporation or
the Rights Agent) for all purposes whatsoever, and neither the
Corporation nor the Rights Agent shall be affected by any notice to
the contrary.
(d) notwithstanding anything in this Agreement to the contrary,
neither the Corporation nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this Agreement
by reason of any preliminary or permanent injunction or other order,
decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or
any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise
restraining performance of such obligation; provided, however, the
Corporation must use its best efforts to have any such order, decree
or ruling lifted or otherwise overturned as soon as possible.
6. RATIFICATION. Except as hereby amended, the Rights Agreement is
hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
1st day of June, 2000.
SEMX CORPORATION
By: /s/ Gilbert D. Raker
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Name: Gilbert D. Raker
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Title: Chairman, President and CEO
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CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: /s/ William F. Seegraber
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Name: William F. Seegraber
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Title: Vice President
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