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EXHIBIT 4.9
AMENDMENT NO. 1 TO
EQUITY LINE FINANCING AGREEMENT
AMENDMENT NO. 1, dated as of March 9, 2001 (this "Amendment"), 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").
The Investor and the Company are parties to an Equity Line Financing
Agreement, dated as of July 6, 2000 (as amended, supplemented, restated or
modified from time to time, the "Agreement"), providing, subject to the terms
and conditions thereof, for purchases by the Investor from time to time of
shares of the Company's Common Stock for a maximum aggregate Purchase Price of
U.S.$140,000,000. The Investor and the Company wish to modify the Agreement in
certain respects and, accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment,
terms defined in the Agreement are used herein as defined therein.
Section 2. Amendment. Subject to the satisfaction of the condition
precedent specified in Section 4 below, but effective as of the date hereof, the
Agreement shall be amended as follows:
2.01. Company Put - Section 2.1(a) of the Agreement shall be amended in
its entirety to read as follows:
"(a) Company Put. If, during the Commitment Period, the
Company:
(i) elects to deliver a Company Put Notice to the
Investor in accordance with Section 2.3(a) hereof (other than
such a Company Put Notice delivered by the Company pursuant to
Section 9.08(b)(iii) of the Credit Agreement), then upon the
delivery of such Company Put Notice, the Investor shall be
obligated to purchase from the Company shares of Common Stock
(not to exceed the Volume Limit) on the Closing Date specified
therein for an Investment Amount specified therein, which
Investment Amount shall not exceed $10,000,000 (the `Company
Put Amount' for such Company Put Notice); or
(ii) delivers a Company Put Notice to the Investor
pursuant to Section 9.08(b)(iii) of the Credit Agreement, then
upon the delivery of such Company Put Notice, the Investor
shall be obligated to purchase from the Company shares of
Common Stock on the Closing Date specified therein for an
Investment Amount specified therein (the `Company Put Amount'
for such Company Put Notice)."
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2.02. Investor Call. The following Sections of the Agreement shall be
deleted in their entirety: Section 2.1(b), Section 2.2(b), Section 2.3(b) and
Section 2.4(a)(ii). Any reference to "Investor Call Amount" and "Investor Call
Notice" in any other Section of the Agreement shall likewise be deemed to be
deleted.
2.03. Margin Call Event. The definition of "Margin Call Event" in
Section 1.1 of the Agreement shall be amended in its entirety to read as
follows:
"'Margin Call Event' shall have the meaning set forth in
Section 9.08(b) of the Credit Agreement."
2.04. Maximum Offering Amount. The definition of "Maximum Offering
Amount" in the first recital of the Agreement shall be amended to mean
$65,000,000.
2.05. Commitment Period. The definition of "Commitment Period" in
Section 1.1 of the Agreement shall be amended in its entirety to read as
follows:
"'Commitment Period' shall mean the period commencing on the
date hereof and expiring on the earliest to occur of (a) the election
by the Company or the Investor to terminate this Agreement pursuant to
Section 9.4 herein, (b) the date on which the Investor shall have made
purchases of Common Stock pursuant to this Agreement in an aggregate
Purchase Price of $65,000,000, (c) the date this Agreement is
terminated pursuant to Section 2.5, and (d) the date occurring 24
months (subject to extension as provided by Section 2.5(a)(ii)) after
the date of this Agreement."
2.06 Purchase Price Per Share. Section 2.4(c) of the Agreement shall be
amended in its entirety to read as follows:
"(c) Purchase Price Per Share. The purchase price per share of
Common Stock (the "Purchase Price") shall be an amount equal
to 95.5% of the simple average of the daily weighted average
price per share of Common Stock (as reported on Bloomberg) for
each of the Applicable Number of consecutive Trading Days
immediately preceding the relevant Calculation Date. As used
in this Section 2.4(c), the "Applicable Number" shall be five,
provided that if the Investment Amount with respect to the
shares of Common Stock to be purchased on any Closing Date is
greater than $10,000,000, then the "Applicable Number" shall
be calculated as follows:
(i) the aggregate Investment Amount shall be divided
among successive increments (each, an "Increment") of
$10,000,000 each, with the last Increment being the balance of
the Investment Amount (and thus may be less than $10,000,000);
and
(ii) the "Applicable Number" shall be five times the
number of Increments."
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2.07 Reservation of Common Stock. Section 6.2(a) of the Agreement shall
be amended in its entirety to read as follows:
"on the Effective Date, a number of shares equal or greater
than the result of (i) $65,000,000 divided by (ii) the Purchase Price on the
Effective Date, rounded up to the nearest whole integer."
2.08 Termination. Section 9.4(a) of the Agreement shall be deleted in
its entirety. Section 9.4(b) shall be renumbered to become 9.4(a).
Section 3. Representations and Warranties. Each of the Investor and the
Company represents and warrants to each other that the representations and
warranties set forth in Article IV and Article V of the Agreement, respectively,
are true and complete on the date hereof and as if made on and as of the date
hereof (or, if such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date) and as if each reference
in said Article IV and Article V to "this Agreement" included reference to this
Amendment.
Section 4. Conditions Precedent. As provided in Section 2 above, the
amendments to the Agreement set forth in said Section 2 shall become effective,
as of the date hereof, upon the execution and delivery of this Amendment by the
Investor and the Company.
Section 5. Miscellaneous. Except as herein provided, the Agreement
shall remain unchanged and in full force and effect. This Amendment may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute
this Amendment by signing any such counterpart. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
ASM INTERNATIONAL N.V.
By_________________________________
Name: _____________________________
Title: ____________________________
CANADIAN IMPERIAL HOLDINGS INC.
By_________________________________
Xxxx Xxxxx
Executive Director
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