Lawrence D. Kingsley Chairman and Chief Executive Officer
Exhibit (d)(5)
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Xxxxxxxx X. Xxxxxxxx Chairman and Chief Executive Officer |
IDEX Corporation
000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-2745
xxx.xxxxxxxx.xxx
000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-2745
xxx.xxxxxxxx.xxx
STRICTLY CONFIDENTIAL
July 23, 2010
Board of Directors
Microfluidics International Corporation
00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Microfluidics International Corporation
00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
This letter agreement (this “Agreement”) amends and restates our prior letter agreement dated
June 8, 2010, and reflects our continued and updated understanding with respect to certain matters
relating to our negotiations regarding a possible transaction (a “Transaction”) between IDEX
Corporation (“IDEX”) and Microfluidics International Corporation (the “Company”), and certain
binding agreements related thereto.
So long as IDEX continues to proceed diligently toward a Transaction, including reasonably
promptly completing its due diligence (which will have to be brought down prior to signing) and
moving forward as quickly as reasonably practicable with the preparation and negotiation of
Transaction-related agreements (all of the terms of which remain to be negotiated consistent with,
or more favorable to the Company than, the terms of that certain letter from IDEX to the Company,
dated June 8, 2010 (the “Letter”)) with the Company and the Company’s principal shareholders (such
agreements not to include the necessary tender offer documents) (collectively, the “IDEX
Transaction Activities”), then from the date hereof until 11:59 P.M., Central Standard Time, on
September 30, 2010, subject to extension as set forth below (the “Exclusivity Period”), the Company
agrees that it shall negotiate in good faith exclusively with IDEX and shall not, and it shall
cause its affiliates and each of its and its affiliates’, directors, officers, employees and
representatives not to, directly or indirectly, (A) initiate, solicit, encourage, discuss,
negotiate or accept any inquiries, proposals or offers (whether publicly or otherwise and whether
or not subject to conditions) with respect to (i) the acquisition, in a single transaction or a
series of related transactions, of 5% or more of the outstanding shares of any
class of equity securities or debt securities of the Company or its subsidiaries or any
interests therein, (ii) the acquisition, in a single transaction or a series of related
transactions, of 5% or more of the assets and properties of the Company or its subsidiaries or
interests therein (on a
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consolidated basis), (iii) the merger, consolidation or combination of the
Company or its subsidiaries, or (iv) the recapitalization, restructuring, reorganization,
liquidation, dissolution or other extraordinary transaction with respect to the Company or its
subsidiaries (each of the foregoing in clauses (i) through (iv), an “Alternative Transaction”), (B)
provide information relating to the Company in connection with an Alternative Transaction, or (C)
enter into any contract, agreement, arrangement or understanding concerning or relating to an
Alternative Transaction, in each case with a party other than IDEX. In the event that the Company
receives an unsolicited inquiry, proposal or offer with respect to an Alternative Transaction
during the Exclusivity Period, or obtains information that such an inquiry, proposal or offer is
likely to be made, the Company will provide IDEX with immediate notice thereof, which notice shall
include the terms of, and the identity of the person or persons making, such inquiry, proposal or
offer. The Company shall, and it shall cause its affiliates and each of its and its affiliates’
directors, officers, employees and representatives to, immediately terminate any and all
discussions or negotiations with any third party with respect to, or that could reasonably be
expected to lead to, an Alternative Transaction. The Company may only seek to terminate its
exclusivity obligations under this Agreement by providing five (5) business days prior written
notice of its belief that IDEX has discontinued the IDEX Transaction Activities and that the
Company intends to terminate its exclusivity obligations hereunder, and IDEX has not cured such
deficiency within such period.
Global Strategic Partners, LLC (“GSP”), a wholly-owned subsidiary of Abraxis Bioscience, Inc.
(“Abraxis”), is the holder of a convertible debenture of the Company in the principal amount of
$5,000,000 and a common stock purchase warrant to purchase shares of the Company’s common stock.
Abraxis entered into an Agreement and Plan of Merger, dated as of June 30, 2010 (the
“Abraxis/Celgene Merger Agreement”), with Celgene Corporation (“Celgene”) and Artistry Acquisition
Corp.
The Company agrees that if Abraxis or Celgene has not entered into a tender and support
agreement with IDEX in connection with the Transaction in a customary form, consistent with (or
more favorable to Abraxis or Celegene than) the Letter, and reasonably satisfactory to IDEX prior
to 11:59 P.M., Central Standard Time, on September 30, 2010, the Exclusivity Period shall be
automatically extended for successive fifteen (15) day periods until such tender and support
agreement is executed, delivered and received by IDEX or until one of the events set forth in
clauses (x), (y) or (z) below occurs and the Expense Reimbursement Payment, if due, has been made.
The Company agrees that so long as IDEX has pursued in good faith the completion of the
Transaction, then, if (x) Celgene has not entered into a tender and support agreement with IDEX in
connection with the Transaction in a customary form, consistent with (or more favorable to Celegene
than) the Letter, and reasonably satisfactory to IDEX prior to 11:59 P.M., Central Standard Time,
on the twentieth (20th) day after the Closing Date (as such term is defined in the
Abraxis/Celgene Merger Agreement), or (y) Abraxis has not entered into a tender
and support agreement with IDEX in connection with the Transaction in a customary form,
consistent with (or more favorable to Abraxis than) the Letter, and reasonably satisfactory to IDEX
prior to 11:59 P.M., Central Standard Time, on the fifteenth (15th) day following the
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announcement of the termination of the Abraxis/Celgene Merger Agreement, or (z) neither action set
forth in clauses (x) or (y) has occurred prior to 11:59 P.M., Central Standard Time, on November
15, 2010, then in any of such cases, the Company shall reimburse IDEX for up to $200,000.00 (two
hundred thousand dollars) of its outside legal fees and expenses incurred in connection with the
Transaction, including the preparation and negotiation of the definitive agreement with respect to
the Transaction, from and after July 26, 2010 (the “Expense Reimbursement Payment”). Payment of
the Expense Reimbursement Payment shall be made by wire transfer of immediately available funds to
an account designated in writing by IDEX, not later than two Business Days after delivery to the
Company of notice of demand for payment of the Expense Reimbursement Payment setting forth in
reasonable detail all such fees and expenses and the requirement for the payment thereof hereunder.
In the event the Company shall fail to pay the Expense Reimbursement Payment when due, the Company
shall reimburse IDEX for all costs and expenses actually incurred by IDEX (including outside legal
fees and expenses) in connection with the collection of the Expense Reimbursement Payment, should
IDEX prevail in a claim for collection thereof, together with interest on the full amount due from
the date the Expense Reimbursement Payment was required to be made until the date of payment at a
rate of 10% per annum, or, if lower, the maximum rate permitted to be charged by applicable law.
Should the Company prevail in such claim referenced above, IDEX shall reimburse the Company for all
costs and expenses actually incurred by the Company (including outside legal fees and expenses) in
connection with defending itself against such claim.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws
of the State of Delaware applicable to contracts executed in and to be performed in that state,
without regard to its conflicts of laws provisions. The parties hereto hereby agree that the
federal or state courts located in the State of Delaware will have exclusive jurisdiction to hear
and determine any dispute or controversy arising under or concerning this Agreement and the parties
hereto hereby consent to such jurisdiction.
If any provision or portion of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect
to the fullest extent permitted by applicable law.
This Agreement will survive until the receipt by IDEX of the Expense Reimbursement Payment as
described above, if applicable, and will otherwise terminate immediately following the expiration
or termination of the Exclusivity Period.
Each party hereto acknowledges and agrees that no contract or agreement providing for a
Transaction shall be deemed to exist, directly or indirectly, between the parties and their
respective affiliates unless and until a definitive written agreement with respect to a Transaction
has been executed and delivered by both the Company and IDEX. Each party hereto also agrees that
unless and until a definitive written agreement with respect to a Transaction has been
executed and delivered by the Company and IDEX, neither party, nor any affiliate thereof, will
be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue
of this Agreement (except for the matters specifically provided herein regarding exclusivity, the
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Expense Reimbursement Payment and the final five (5) paragraphs of this Agreement) or otherwise or
by virtue of any written or oral expression with respect to such a Transaction by either party’s
affiliates and each of its and its affiliates’ directors, officers, employees and representatives.
For the convenience of the parties, any number of counterparts of this Agreement may be
executed by the parties hereto (whether delivered by facsimile, electronic transmission or
otherwise). Each such counterpart shall be, and shall be deemed to be, an original instrument, but
all such counterparts taken together shall constitute one and the same Agreement.
[Signature Page Follows]
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Please confirm your agreement with the foregoing by signing and returning one copy of this
Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between the
Company and IDEX as of the date first set forth above.
Sincerely,
| IDEX Corporation |
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| /s/ Xxxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxxx X. Xxxxxxxx | ||||
| Chairman of the Board, President and Chief Executive Officer |
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Accepted and Agreed to,
Microfluidics International Corporation
| By: | /s/ Xxxxxxx X. Xxxxxxx | , a duly authorized signatory | ||
| Printed Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | CEO | |||
