November 14, 2007
Exhibit (d)(4)
November 14, 2007
Genesis Microchip Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the proposal letter (the “Proposal Letter”), dated November 4,
2007, as attached hereto, which describes certain terms of a possible acquisition (the
“Transaction”) of Genesis Microchip Inc. (the “Company”) by STMicroelectronics
N.V. (the “Parent”). In recognition of the significant costs to be borne by
Parent in conducting the requisite due diligence on the Company in connection with the Transaction
and negotiating the definitive agreement relating to the Transaction (the “Agreement”) and
in consideration of the mutual undertakings set forth herein, the Company and the Parent hereby
agree as follows:
1. Exclusivity. (a) From the date of this letter agreement through the earlier of (i)
the execution of the Agreement and (ii) 11:59 p.m. on December 6, 2007, none of the Company, any of
its subsidiaries, or any of their respective officers or directors will, or shall cause their
respective employees, affiliates, agents or other representatives, to (A) solicit, initiate,
knowingly encourage or accept any other inquiries, proposals or offers from any Person (as defined
below) (1) relating to any acquisition or purchase of all or any portion of the capital stock of
the Company or any of its subsidiaries other than pursuant to existing employee plans in the
ordinary course of business or all or any portion of the assets of the Company (other than sales of
products and components in the ordinary course of business) or any of its subsidiaries, (2) to
enter into any merger, recapitalization, reorganization or other business combination with the
Company or any of its subsidiaries or (3) to enter into any other extraordinary business
transaction outside the ordinary course of business involving or otherwise relating to the Company
or any of its subsidiaries which would be inconsistent with or would prevent or materially delay
the Transaction (any of the transactions described in clauses (1), (2) or (3) being referred to
herein as a “Business Combination”) or (B) participate in any discussions, conversations,
negotiations or other communications with any other Person regarding, or furnish to any other
Person any information with respect to (in each case other than, subject to the terms of the
Confidentiality Agreement (as defined below), communications with the Company’s current and
potential customers, suppliers and distributors in the ordinary course of business), or otherwise
cooperate in any way, assist or participate in, facilitate or knowingly encourage any effort or
attempt by any other Person to seek to do, any of the foregoing. The Company immediately shall
cease and cause to be terminated
all existing discussions, conversations,
negotiations and other communications with any
Persons conducted heretofore with respect to any of the foregoing.
(b) As used in this letter agreement, “Person” means any individual, partnership, firm,
corporation, limited liability company, association, trust, unincorporated organization or other
entity, as well as any syndicate or group that would be deemed to be a person under Section
13(d)(3) of the Securities Exchange Act of 1934, as amended.
2. Intentions of the Parties. The Proposal Letter constitutes only a preliminary,
non-binding statement of the intentions of the parties, does not contain all matters upon which
agreement must be reached for the Transaction to be consummated and creates no legal obligations on
the part of any party hereto. A binding commitment with respect to the Transaction will result
only from the execution of the Agreement. It is understood that (a) the Proposal Letter does not
constitute an obligation or commitment of any party to enter into the Agreement, (b) any
obligations or commitments to proceed with the Transaction shall be contained only in the Agreement
and (c) the execution, delivery and performance of the Agreement will require the approval of the
board of directors and stockholders of the Company and the Supervisory Board of the Parent.
Notwithstanding the foregoing, the provisions of this letter agreement will be fully binding upon
the execution hereof.
3. Confidentiality. The parties agree that the existence of this letter agreement and
the terms hereof shall be treated as “Proprietary Information” (as such term is defined in the
Confidentiality Agreement (the “Confidentiality Agreement”), dated November 14, 2007,
between the Company and the Parent), in accordance with the terms of the Confidentiality Agreement.
4. Assignment. This letter agreement may not be assigned by operation of law or
otherwise without the express written consent of the Company and the Parent (which consent may be
granted or withheld in the sole discretion of the Company or the Parent); provided,
however, that the Parent may assign this letter agreement or any of its rights and
obligations hereunder to one or more affiliates of the Parent without the consent of the Company.
5. No Third Party Beneficiaries. This letter agreement shall be binding upon and inure
solely to the benefit of the parties hereto and their permitted assigns and nothing herein, express
or implied, is intended to or shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this letter agreement.
6. Entire Agreement. This letter agreement constitutes the entire agreement of the
Company and the Parent hereto with respect to the subject matter hereof and supersedes all other
prior agreements
and undertakings, both written and oral, between the Company and the Parent with respect to
the subject matter hereof.
7. Amendment. This letter agreement may not be amended or modified except (a) by an
instrument in writing signed by, or on behalf of, the Company and the Parent or (b) by a waiver
pursuant to Section 8 below.
2
8. Waiver. Either party to this letter agreement may (a) extend the time for the
performance of any obligations or other acts of the other party, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any document delivered by
the other party pursuant hereto or (c) waive compliance with any of the agreements of the other
party or conditions to such party’s obligations contained herein. Any such extension or waiver
shall be valid only if set forth in an instrument in writing signed by the party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent
breach or a subsequent waiver of the same term or condition, or a waiver of any other term or
condition of this letter agreement. The failure of any party to assert any of its rights hereunder
shall not constitute a waiver of any such rights.
9. Severability. If any term or other provision of this letter agreement is invalid,
illegal or incapable of being enforced by any law or public policy, all other terms and provisions
of this letter agreement shall nevertheless remain in full force and effect so long as the economic
or legal substance of the transactions contemplated by this letter agreement is not affected in any
manner materially adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this letter agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner in order that the transactions contemplated by this letter
agreement are consummated as originally contemplated to the greatest extent possible.
10. Counterparts. This letter agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
11. Governing Law. This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts executed in and to be
performed in that State. Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the
United States, in each case located in the County of New York, for any litigation arising out of or
relating to this letter
agreement (and agrees not to commence any litigation relating thereto except in such courts),
and further agrees that service of any process, summons, notice or document by U.S. registered mail
to its respective address set forth in this letter agreement shall be effective service of process
for any litigation brought against it in any such court. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of any litigation
arising out of this letter agreement in the courts of the State of New York or the United States,
in each case located in the County of New York, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such litigation brought in any
such court has been brought in an inconvenient forum.
3
Please confirm your agreement with the foregoing by signing and returning to the undersigned
the duplicate copy of this letter enclosed herewith.
| Very truly yours, | |||||||||
| STMICROELECTRONICS N.V. | |||||||||
| By: /s/ Xxxxxx Xxxxx | |||||||||
| Title: Executive Vice President, Chief Strategy and Technology Officer | |||||||||
Accepted and agreed as of
the date first written above:
the date first written above:
GENESIS MICROCHIP INC.
By: |
/s/ Xxxxx Xxxxxxxx | |||
| Title: Senior Vice President, Corporate Development |
4
