AMENDMENT NO. 2 TO PREFERRED STOCK RIGHTS AGREEMENT
EXHIBIT
4.2
AMENDMENT
NO. 2 TO
This
Amendment No. 2 (the “Amendment”),
dated
effective as of December 10, 2007, to the Preferred Stock Rights Agreement,
dated as of June 27, 2002, as amended on March 16, 2003 (as so amended, the
“Rights
Agreement”),
by
and between Genesis Microchip Inc., a Delaware corporation (the “Company”),
and
Mellon Investor Services LLC (the “Rights
Agent”),
is
being executed at the direction of the Company.
WHEREAS,
the
Company, STMicroelectronics N.V., a limited liability company organized under
the laws of the Netherlands, with its corporate seat in Amsterdam, the
Netherlands (“ST”),
and
Sophia Acquisition Corp., a Delaware corporation and wholly owned subsidiary
of
ST (“Merger
Sub”),
have
determined that it is in the best interests of their respective shareholders
for
ST to acquire the Company;
WHEREAS,
in
furtherance of such acquisition, the Company, ST and Merger Sub intend to enter
into an Agreement and Plan of Merger (the “Merger
Agreement”)
pursuant to which, among other things, (i) Merger Sub shall commence a cash
tender offer (the “Offer”)
to
purchase all of the issued and outstanding shares of common stock of the Company
and (ii) following the consummation of the Offer, Merger Sub will be merged
with
and into the Company with the Company as the surviving corporation, and the
Company will become a wholly owned subsidiary of ST (the "Merger");
WHEREAS,
on
December 10, 2007, the Board of Directors of the Company resolved to amend
the
Rights Agreement to render the Rights inapplicable to the Offer, the Merger
and
the other transactions contemplated by the Merger Agreement, effective upon
the
execution of the Merger Agreement by the parties thereto;
WHEREAS,
Section
27 of the Rights Agreement provides that subject to the penultimate sentence
thereof, prior to the occurrence of a Distribution Date (as defined in the
Rights Agreement), the Company may supplement or amend the Rights Agreement
in
any respect without the approval of any holders of Rights (as defined in the
Rights Agreement) and the Rights Agent shall, if the Company so directs, execute
such supplement or amendment; and
WHEREAS,
no Distribution Date has occurred and no person has been an Acquiring Person
(as
defined in the Rights Agreement).
NOW,
THEREFORE,
in
consideration of the foregoing and the agreements, provisions and covenants
herein contained, the parties agree as follows, such agreement to become
effective immediately upon, and concurrent with, the execution of the Merger
Agreement by the parties thereto:
1. Section
1(q) of the Rights Agreement is hereby amended to read in its entirety as
follows:
“Expiration
Date”
shall
mean the earliest to occur of: (i) the Close of Business on the Final Expiration
Date, (ii) the Redemption Date, (iii) the time at which the Board of Directors
orders the exchange of the Rights as provided in Section 24 hereof, or (iv)
upon
the Effective Time, as such term is defined in that certain Agreement and Plan
of Merger, dated as of December 10, 2007 (the “Merger
Agreement”),
by
and among the Company, ST Microelectronics N.V., a limited liability company
organized under the Laws of the Netherlands, with its corporate seat in
Amsterdam, the Netherlands (“ST”),
and
Sophia Acquisition Corp., a Delaware corporation and wholly owned subsidiary
of
ST (“Merger
Sub”).
The
Company shall provide the Rights Agent with prompt written notice of the
occurrence of the Effective Time (as defined in the Merger
Agreement).”
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2. Section
1
of the Rights Agreement is hereby amended by adding the following new paragraph
at the end of Section 1(a):
“Notwithstanding
anything in this Agreement that might otherwise be deemed to the contrary,
neither ST, Merger Sub nor any of their Affiliates or Associates shall be deemed
an Acquiring Person and none of the Distribution Date, Shares Acquisition Date,
“flip-in” even described in Section 11 hereof, Section 13 Event or Triggering
Event shall be deemed to occur, in each such case, by the approval, execution,
delivery or performance of the Merger Agreement, the making of the Offer (as
defined in the Merger Agreement), the acceptance of Common Shares for payment
in
exchange therefor by Merger Sub pursuant to the Offer, the acquisition of Common
Shares pursuant to the terms of the Merger Agreement, the consummation of the
Merger (as defined in the Merger Agreement) or the consummation of the other
transactions contemplated by the Merger Agreement. No such event shall result
in
the Rights becoming evidenced by, and transferable pursuant to, certificates
separate from the certificates representing the Common Shares, or becoming
exercisable. In addition, no such event shall entitle or permit the holders
of
the Rights to exercise the Rights or otherwise affect the rights of the holders
of Rights, including giving the holders of the Rights the right to acquire
securities of any party to the Merger Agreement.”
3. The
Rights Agreement shall not otherwise be supplemented or amended by virtue of
this Amendment, but shall remain in full force and effect. All defined terms
and
definitions in the Rights Agreement shall be the same in the Amendment except
as
specifically revised by the Amendment. This Amendment may be executed in one
or
more counterparts, all of which shall be considered one and the same amendment
and each of which shall be deemed an original.
4. The
Rights Agent shall not be subject to, nor required to interpret or comply with,
nor determine if any person has complied with, the Merger Agreement, even though
references thereto may be made in this Amendment and the Rights
Agreement.
5. By
its
execution and delivery hereof, the Company directs the Rights Agent to execute
this Amendment.
6. This
Amendment No. 2 shall be deemed a contract made under the laws of the State
of
Delaware and for all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts to be made and performed
entirely within such State; except that all provisions regarding the rights,
duties, obligations and immunities of the Rights Agent shall be governed by
and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State.
[Signature
Page To Follow]
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IN
WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and attested,
all
as of the day and year first above written.
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GENESIS
MICROCHIP INC.
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MELLON
INVESTOR SERVICES LLC,
as
Rights Agent
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/s/
Xxxxx Xxxxxx
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/s/
Xxxxxx Xxxxxxxx
|
|
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By:
Xxxxx Xxxxxx
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By:
Xxxxxx Xxxxxxxx
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Title:
President & Chief Financial Officer
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Title:
Assistant Vice President
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