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EXECUTION COPY
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ASM INTERNATIONAL N.V.
U.S.$140,000,000
REGISTRATION RIGHTS AGREEMENT
July 6, 2000
CANADIAN IMPERIAL HOLDINGS INC.
as Investor
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TABLE OF CONTENTS
PAGE
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1. Certain Definitions..................................................................................... 1
2. Registration Requirements............................................................................... 2
3. Registration Procedures................................................................................. 3
4. Suspensions of Effectiveness............................................................................ 4
5. Indemnification......................................................................................... 5
6. Contribution............................................................................................ 7
7. Survival................................................................................................ 8
8. Transfer or Assignment of Rights........................................................................ 8
9. Miscellaneous........................................................................................... 8
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Rights Agreement"), entered
into as of July 6, 2000, between CANADIAN IMPERIAL HOLDINGS INC., a Delaware
corporation (the "Investor") and ASM INTERNATIONAL N.V., a corporation organized
under the laws of the Kingdom of the Netherlands (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Equity Line Financing Agreement by
and between the Company and the Investor (the "Agreement"), the parties desire
that, upon the terms and subject to the conditions contained herein, the Company
may issue to the Investor, and, subject to the terms and conditions thereof, the
Investor shall purchase from the Company, from time to time as provided in the
Agreement, shares of the Company's common stock, par value Nlg. 0.01 per share
(the "Common Stock"), for a maximum aggregate purchase price of $140,000,000
(the Common Stock to be purchased thereunder, the "Common Stock");
WHEREAS, contemporaneous with the execution and delivery of the
Agreement, the Company and Canadian Imperial Bank of Commerce (the "Lender"), an
affiliate of the Investor, acting through its New York agency, are executing and
delivering a Credit Agreement (the "Credit Agreement"), pursuant to which the
Lender has agreed to provide to the Company amortizing term loans of up to
$75,000,000, collectively.
WHEREAS, pursuant to the terms of, and in partial consideration for,
the Investor's commitment to enter into the Agreement, the Company has agreed to
provide the Investor with certain registration rights with respect to the Common
Stock as set forth in this Rights Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the Agreement
and this Rights Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intended to be legally
bound hereby, the Company and the Investor agree as follows:
1. Certain Definitions. Capitalized terms used in this Rights Agreement
and not otherwise defined herein shall have the same meaning ascribed to them in
the Agreement. The following terms shall have the following respective meanings:
"Agreement Date" shall mean the date as of which the Agreement was duly
executed by the parties thereto.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Investor" shall include the Investor and any permitted assignee or
transferee of the rights under the Agreement to whom the registration rights
conferred by this Rights Agreement have been transferred in compliance with
Section 9 of this Rights Agreement.
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"Loan Amount" has the meaning set forth in Section 1.1 of the
Agreement.
"Principal Market" has the meaning set forth in Section 1.1 of the
Agreement.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing an appropriate registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
2. Registration Requirements. The Company shall use its reasonable best
efforts to effect the registration of the Common Stock (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act) as would permit or facilitate the sale or distribution of all
the Common Stock in the manner (including manner of sale) and in all states
reasonably requested by the Investor for purposes of maximizing the proceeds
realizable by the Investor from such sale or distribution. Such reasonable best
efforts by the Company shall include without limitation the following:
(a) Subject to the terms and conditions of this Rights Agreement, the
Company shall file with the Commission (i) no later than August 18, 2000, an
appropriate registration statement on Form F-3 (or any successor or other
appropriate form) under the Securities Act for the registration of the Common
Stock (the "Registration Statement") which Registration Statement shall have
been declared effective by the Commission no later than ninety (90) days from
the Agreement Date. Furthermore, at the time of filing of the Registration
Statement, the Company shall file (A) such blue sky filings as shall have been
requested by the Investor; and (B) any required filings with the National
Association of Securities Dealers, Inc. or exchange or market where the Common
Stock is traded. The Company shall use its best efforts to have all filings
declared effective as promptly as practicable.
(b) (i) If the Company (A) fails to file the Registration Statement
complying with the requirements of this Rights Agreement by August 18, 2000 or
if the Registration Statement has not become effective on or before ninety (90)
days from the Agreement Date, the Investor shall have, in addition to and
without limiting any other rights it may have at law, in equity or under the
Agreement, or this Rights Agreement (including the right to specific
performance), the right to receive, as liquidated damages, the payments as
provided in subparagraph (ii) of this section.
(ii) In the event the Registration Statement is not deemed effective
within ninety (90) days after the Agreement Date, the Company shall pay to the
Investor an amount equal to: (A) 0.75% of the Loan Amount per month (on a
pro-rated basis) if the Registration Statement becomes effective anytime from
ninety-one (91) days to one hundred thirty-five (135) days after the Agreement
Date and (B) 1.0% of the Loan Amount per month (on a pro-rated basis) if the
Registration Statement becomes effective anytime after one hundred thirty-five
(135) days from the Agreement Date.
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(c) The Company shall enter into such customary agreements and take all
such other reasonable actions in connection therewith in order to expedite or
facilitate the disposition of the Common Stock.
3. Registration Procedures. The Company will keep the Investor advised
in writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will use its reasonable best efforts to:
(a) Keep such registration effective for the period ending twenty-four
(24) months, as extended pursuant to Section 4 hereof, following the Agreement
Date.
(b) Furnish such number of prospectuses and amendments and supplements
thereto, and other documents incident thereto as the Investor from time to time
may reasonably request;
(c) Prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to keep
such Registration Statement effective for the applicable period; cause the
related prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act applicable to it with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
or supplement to such prospectus;
(d) Notify the Investor and its counsel (as designated in writing by
the Investor) promptly, and confirm such notice (a "Notice") in writing, (i)
when a prospectus or any prospectus supplement or post-effective amendment has
been filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or related prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Common Stock for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event as a result of which the prospectus
included in the Registration Statement (as then in effect) contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the circumstances under
which they were made) not misleading, and (vi) of the Company's reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate or that there exist circumstances not yet disclosed to the
public which make further sales under such Registration Statement inadvisable
pending such disclosure and post-effective amendment;
(e) Upon the occurrence of any event contemplated by Section
3(d)(ii)-(vi) (unless a Blocking Notice shall be in effect) and immediately upon
the expiration of any Blocking Notice (as defined in Section 4), prepare, if the
occurrence of such event or period requires such preparation, a supplement or
post-effective amendment to the Registration
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Statement or related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Common Stock being sold thereunder, such prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements, in light of the circumstances
under which they were made, not misleading;
(f) Obtain the withdrawal of any order suspending the effectiveness of
the Registration Statement, or the lifting of any suspension of the
qualification of any of the Common Stock for sale in any jurisdiction, at the
earliest possible moment;
(g) Cause all Common Stock subject to the Registration Statement at all
times to be registered or qualified for offer and sale under the securities or
blue sky laws of such jurisdictions as any Investor reasonably requests in
writing; use its best efforts to keep each such registration or qualification
effective, including through new filings or amendments or renewals, during the
period the Registration Statement is required to be kept effective and do any
and all other acts or things necessary or advisable to enable the disposition in
such U.S. jurisdictions of the Common Stock covered by the Registration
Statement; provided, however, that the Company will not be required to qualify
to do business or take any action that would subject it to taxation or general
service of process in any jurisdiction where it is not then so qualified or
subject; and
(h) Cause all Common Stock included in such Registration Statement to
be listed, by the date of first sale of Common Stock pursuant to such
Registration Statement, on the Principal Market.
Notwithstanding the foregoing, if at any time the Loan Amount shall be
zero, the Company may discontinue its obligations under this Section 3 by
providing 30 days prior notice thereof to the Investor.
4. Suspensions of Effectiveness. The Company may suspend dispositions
under the Registration Statement and notify the Investor that it may not sell
the Common Stock pursuant to any Registration Statement or prospectus (a
"Blocking Notice") if the Company's management determines in its good faith
judgment that the Company's obligation to ensure that such Registration
Statement and prospectus are current and complete would require the Company to
take actions that might reasonably be expected to have a materially adverse
effect on the Company and its shareholders; provided that such suspension
pursuant to a Blocking Notice or Prospectus Inadequacy Notice (as defined below)
or as a result of the circumstances described in Section 3(d)(ii)-(vi) may not
exceed ninety (90) days (whether or not consecutive) in any twelve (12) month
period. The Investor agrees by acquisition of the Common Stock that, upon
receipt of a Blocking Notice or "Prospectus Inadequacy Notice" from the Company
of the existence of any fact of the kind described in the following sentence,
the Investor shall not dispose of, sell or offer for sale the Common Stock
pursuant to the Registration Statement until such Investor receives (i) copies
of the supplemented or amended prospectus, or until counsel for the Company
shall have determined that such disclosure is not required due to subsequent
events, (ii) notice in writing (the "Advice") from the Company that the use of
the prospectus may be resumed and (iii) copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus. Pursuant to the
immediately preceding sentence, the Company may provide such Prospectus
Inadequacy Notice to the Investor upon the determination by the Company of the
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existence of any fact or the happening or any event that makes any statement of
a material fact made in the Registration Statement, the prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue in any material respect, or that requires the making of any
additions to or changes in the Registration Statement or the prospectus, in
order to make the statements therein not misleading in any material respect. If
so directed by the Company in connection with any such notice, each Investor
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Investor's possession, of the prospectus
covering such Common Stock that was current immediately prior to the time of
receipt of such notice. Delivery of a Blocking Notice or Prospectus Inadequacy
Notice and the related suspension of any Registration Statement shall not
constitute a default under this Rights Agreement. However, if the Investor's
ability to sell under the Registration Statement is suspended for more than the
ninety (90) day period described above, the Investor may elect, in its sole and
absolute discretion, to terminate the Agreement pursuant to Section 9.4(b)(i) of
the Agreement.
5. Indemnification.
(a) Company Indemnity. The Company will indemnify the Investor, each of
its officers, directors and partners, and each person controlling the Investor,
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and the rules and regulations thereunder with respect to which
registration, qualification or compliance has been effected pursuant to this
Rights Agreement, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus
(including any related registration statement, notification or the like or any
amendment thereto) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or
any state securities law or in either case, any rule or regulation thereunder
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse the Investor, each of its officers, directors and partners,
and each person controlling the Investor, each such underwriter and each person
who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission (or alleged untrue statement or omission) that is made in reliance upon
and in conformity with written information furnished to the Company by the
Investor and stated to be specifically for use therein. In addition to any other
information furnished in writing to the Company by the Investor, the information
in the Registration Statement concerning the Investor or any of its Affiliates
under the caption "Plan of Distribution" (or any similarly captioned Section
containing information required pursuant to Item 508 of Regulation S-K) shall be
deemed information furnished in writing to the Company by the Investor to the
extent it conforms to information actually supplied in writing by the Investor.
The indemnity agreement contained in this Section 5(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
will not be unreasonably withheld).
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(b) Investor Indemnity. The Investor will indemnify the Company, each
of its directors, officers, partners, and each underwriter, if any, of the
Company's securities covered by the Registration Statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and the rules and regulations
thereunder, and each of their officers, directors and partners, and each person
controlling such other Investor (if any), and each of their officers, directors,
and partners, and each person controlling such other Investor against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement (or any amendment thereto)
or prospectus or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statement therein
not misleading, and will reimburse the Company and its directors, officers and
partners, or control persons for any legal or any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement or prospectus in reliance upon
and in conformity with written information furnished to the Company by the
Investor and stated to be specifically for use therein, and provided that the
Investor shall not be liable under this indemnity for an amount in excess of the
proceeds received by the Investor from the sale of the Common Stock pursuant to
such Registration Statement; provided, however, that nothing contained herein
shall limit the Investor's obligation to provide indemnification pursuant to
Section 10.4 of the Agreement. In addition to any other information furnished in
writing to the Company by the Investor, the information in the Registration
Statement concerning the Investor under the caption "Plan of Distribution" (or
any similarly captioned Section containing information required pursuant to Item
508 of Regulation S-K) shall be deemed information furnished in writing to the
Company by the Investor to the extent it conforms to information actually
supplied in writing by the Investor. The indemnity agreement contained in this
Section 5(b) shall not apply to amounts paid in settlement of any such claims,
losses, damages or liabilities if such settlement is effected without the
written consent of the Investor (which consent shall not be unreasonably
withheld).
(c) Procedure. Each party entitled to indemnification under this
Section 5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim in any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Article
except to the extent that the Indemnifying Party is materially and adversely
affected by such failure to provide notice. The Indemnifying Party shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for such Indemnified Party, provided, however,
that if separate firm(s) of attorneys are required due to a conflict of
interest, then the indemnifying party shall be liable
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for the reasonable fees and expenses of one additional firm. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
6. Contribution. If the indemnification provided for in Section 5
hereof is unavailable to the Indemnified Party in respect of any losses, claims,
damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities (i) as between the Company and the Investor on the one hand and the
underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Investor on the one hand or
underwriters, as the case may be, on the other from the offering of the Common
Stock, or if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Investor on the
other, in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between the Company on the one hand and the Investor
on the other, in such proportion as is appropriate to reflect the relative fault
of the Company and of the Investor in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Investor on the other shall be deemed to be in the same proportion as the
proceeds from the offering of Common Stock by the Company to the Investor
pursuant to this Rights Agreement bear to the proceeds received by the Investor
from the sale of Common Stock pursuant to the Registration Statement. The
relative fault of the Company on the one hand and of the Investor on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Investor.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 6 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 5(a) or Section 5(b) hereof had been
available under the circumstances.
The Company and the Investor agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating
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or defending any such action or claim. Notwithstanding the provisions of this
section, the Investor shall not be required to contribute any amount in excess
of the amount by which the total price at which the shares of Common Stock
offered by the Investor and distributed to the public, or offered to the public,
exceeds the amount of any damages that the Investor has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7. Survival. The indemnity and contribution agreements contained in
Section 5 and Section 6 shall remain operative and in full force and effect
regardless of (i) any termination of the Agreement or any underwriting
agreement, (ii) any investigation made by or on behalf of any Indemnified Party
or by or on behalf of the Company and (iii) the consummation of the sale or
successive resales of the Registrable Securities.
8. Transfer or Assignment of Rights. Neither this Rights Agreement nor
any rights of the Investor or the Company hereunder may be assigned by either
party to any other person. Notwithstanding the foregoing, upon prior written
notice to the Company, the Investor's rights and obligations under this Rights
Agreement may be assigned, in whole or in part, to any Affiliate of the Investor
(a "Permitted Transferee"), provided, however, that any such assignment shall
not release the Investor from its obligations hereunder. The rights and
obligations of the Investor under this Rights Agreement shall inure to the
benefit of, and be enforceable by and against, any such Permitted Transferee.
9. Miscellaneous.
(a) Entire Agreement. This Rights Agreement, together with the
Agreement, contains the entire understanding and agreement of the parties
relating to the registration of Registrable Securities, and may not be modified
or terminated except by a written agreement signed by both parties.
(b) Notices. All notices, demands, requests, consents, approvals or
other communications required or permitted to be given hereunder or which are
given with respect to this Rights Agreement shall be in writing and shall be
personally served or deposited in the mail, registered or certified, return
receipt requested, postage prepaid, or delivered by reputable air courier
service with charges prepaid, or transmitted by hand delivery, telegram or
facsimile, addressed as set forth below, or to such other address as such party
shall have specified most recently by written notice: If to the Company, to:
ASM International N.V.
Xxx Xxx Xxxxxxxx 00
0000 Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Rinse de Jong
Tel: (00) 00-000-0000
Fax: (00) 00-000-0000
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With a copy (which shall not constitute notice) to:
Xxxxxxx & Xxxxx LLP
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Investor, to
Canadian Imperial Holdings Inc.
C/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx or Xxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Subject to Section 2.3(c) of the Agreement, notice shall be deemed
given on the date of service or transmission if personally served or transmitted
by telegram, telex or facsimile during normal business hours of the recipient.
Notice otherwise sent as provided herein shall be deemed given on the third
business day following the date mailed or on the second business day following
delivery of such notice by a reputable air courier service.
(c) Registration Expenses. The Company shall be responsible for the
expenses to be incurred by the Company in connection with Investor's exercise of
its registration rights under this Rights Agreement, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, and the
expense of any special audits that may be required in connection herewith.
(d) Gender of Terms. All terms used herein shall be deemed to include
the feminine and the neuter, and the singular and the plural, as the context
requires.
(e) GOVERNING LAW. THIS RIGHTS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
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STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(f) Jurisdiction. The parties hereby agree that all actions or
proceedings arising directly or indirectly from or in connection with this
Rights Agreement shall, at the option of either party, be litigated only in the
United States District Court for the Southern District of New York located in
New York County, New York, unless such District Court declines jurisdiction, in
which case such actions or proceedings shall be litigated only in the state
court located in New York County, New York. Each party hereto irrevocably
waives, to the fullest extent permitted by applicable law, any objection which
it might now or hereafter have to the laying of venue of any proceeding in the
United States District Court for the Southern District of New York or the courts
of the State of New York in New York County, and any claim that any proceeding
brought in any such court has been brought in an inconvenient forum. The Company
agrees that it shall at all times have an authorized agent in New York County,
New York, upon whom process may be served in connection with any proceeding
hereunder, and the Company has appointed Corporate Service Company, which
currently maintains a New York County office situated at [ ], as its agent for
such purposes. If for any reason such person shall cease to act as agent for the
service of process, the Company shall promptly appoint another such agent, and
shall forthwith notify the Investor of such appointment. The submission to
jurisdiction reflected in this paragraph shall not (and shall not be construed
so as to) limit the right of any person to commence proceedings in any court of
competent jurisdiction, nor shall the commencement of proceedings in any one or
more jurisdictions preclude the commencement of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted by
law. The parties hereto waive any right to a jury trial in connection with any
litigation pursuant to this Rights Agreement.
(g) Waiver of Sovereign Immunity. The Company irrevocably waives, to
the fullest extent permitted by law, all immunity (whether on the basis of
sovereignty or otherwise) from jurisdiction, attachment (both before and after
judgment) and execution to which it might otherwise be entitled in any action or
proceeding in any court relating in any way to this Rights Agreement and agrees
that it will not raise or claim or cause to be pleaded any such immunity at or
in respect of such action or proceeding.
(h) Titles. The titles used in this Rights Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Rights Agreement.
(i) Counterparts. This Rights Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed as of the date first above written.
ASM INTERNATIONAL N.V. CANADIAN IMPERIAL HOLDINGS INC.
By: _____________________ By:____________________________
Name: Name:
Title: Title:
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