EXHIBIT 10.34
EXCLUSIVITY AND RIGHT OF FIRST REFUSAL AGREEMENT
This EXCLUSIVITY AND RIGHT OF FIRST REFUSAL AGREEMENT (the "Agreement")
is made and entered into as of October 7, 2002 among Sirenza Microdevices, Inc.,
a Delaware corporation ("Parent"), and Vari-L Company, Inc., a Colorado
corporation (the "Company").
RECITALS
A. Parent and Company wish to mutually evaluate a potential acquisition
by Parent of all or substantially all of the assets of the Company (the
"Transaction"), on terms to be set forth in a definitive and binding written
agreement between the Company and Parent (the "Definitive Agreement").
B. In order to assist the Company in meeting certain working capital
requirements and to secure the promises of the Company contained herein, Parent
has agreed to lend the Company up to $5,300,000 upon the terms and subject to
the conditions set forth in that certain Loan Agreement between the parties
dated the date hereof regarding such loan facility (together with the related
security agreement any and all exhibits, attachments and other agreements and
instruments contemplated thereby, the "Loan Agreement").
C. As an inducement to Parent to make the Loan Agreement and to
evaluate the potential Transaction, the Company wishes to make the covenants and
enter into the agreements set forth below.
NOW, THEREFORE, in consideration of the substantial amount of resources
Parent has and will expend in evaluating and negotiating the terms of the
Transaction, the Loan Agreement and the covenants, promises and representations
set forth herein, and for other good and valuable consideration, intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
EXCLUSIVITY
1.1 No Solicitation.
(a) No Solicitation or Negotiation. From and after the date of this
Agreement until March 31, 2003, unless earlier terminated pursuant to Section
1.2 hereof (the "Exclusivity Period"), and except as set forth in this Section
1.1, the Company shall not, nor shall it authorize or permit any of its
subsidiaries or any of its or its subsidiaries' respective directors, officers,
investment bankers, attorneys, accountants or other advisors or representatives
retained by them
(such directors, officers, employees, investment bankers, attorneys,
accountants, other advisors and representatives, collectively,
"Representatives") to directly or indirectly:
(i) solicit, initiate, or knowingly encourage or induce the making
of any Acquisition Proposal (as defined in Section 1.1(e)), including without
limitation to amend or grant any waiver or release under any standstill or
similar agreement with respect to any equity securities of the Company; or
(ii) enter into, continue or otherwise participate in any
discussions or negotiations regarding, furnish to any person any information
with respect to, assist or participate in any effort by any person with respect
to, or otherwise cooperate in any way with, any Acquisition Proposal.
Notwithstanding the foregoing, during the Exclusivity Period, the
Company may, to the extent required by the fiduciary obligations of the board of
directors of the Company (the "Company Board"), as determined in good faith by
the Company Board after consultation with outside counsel, in response to a
Superior Proposal (as defined in Section 1.1(e)) that did not result from a
breach by Company of this Section 1.1, and subject to compliance with Section
1.1(c), (x) furnish information with respect to the Company to the person making
such Superior Proposal and its Representatives pursuant to a customary
confidentiality agreement not less restrictive of the other party than the
Confidentiality Agreement (as defined in Section 1.1(e)), provided that any such
information not previously provided to Parent shall be concurrently provided to
Parent as well, (y) participate in discussions or negotiations with such person
and its Representatives regarding any Superior Proposal, and (z) enter into a
definitive agreement or other documents with respect to such Superior Proposal
with such person after complying with all applicable obligations of the Company
set forth in Article II hereof. Without limiting the foregoing, it is agreed
that any violation of the restrictions set forth in this Section 1.1(a) by any
Representative of the Company or any of its subsidiaries, whether or not such
person is purporting to act on behalf of the Company or otherwise, shall be
deemed to be a breach of this Section 1.1(a) by the Company.
(b) No Alternative Acquisition Agreement. During the Exclusivity
Period, neither the Company Board nor any committee thereof shall:
(i) cause or permit the Company to enter into any letter of intent,
memorandum of understanding, agreement in principle, acquisition agreement,
merger agreement or similar agreement constituting or relating to any
Acquisition Proposal (other than a confidentiality agreement referred to in
Section 1.1(a) entered into in the circumstances referred to in Section 1.1(a));
or
(ii) adopt, approve or recommend, or propose to adopt, approve or
recommend, any Acquisition Proposal.
Notwithstanding the foregoing, during the Exclusivity Period, the
Company Board may, in response to a Superior Proposal that did not result from a
breach by the Company of this Section 1.1, take any action described in clauses
(i) or (ii) of the first sentence of this Section 1.1(b), but only to the extent
that the Company Board determines in good faith (after consultation with outside
counsel)
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that its fiduciary obligations require it to do so, and only after (A) the fifth
business day following receipt by Parent of written notice advising it that the
Company Board desires to take such action due to the existence of a Superior
Proposal, specifying the action proposed to be taken by the Company Board, the
material terms and conditions of such Superior Proposal and the identity of the
person making such Superior Proposal, and (B) the Company has satisfied in all
respects any and all of its applicable obligations to Parent pursuant to Article
II hereof. Nothing in this Section 1.1 shall be deemed to affect any obligation
of the Company under this Agreement except as explicitly set forth above.
Notwithstanding the foregoing, the notice contemplated by clause (A) above need
not be given with respect to any Third Party Offer (as defined in Section 2.2)
during any period in which Article II is not applicable by virtue of Section
2.4.
(c) Notices; Additional Negotiations. The Company shall promptly
advise Parent orally, with written confirmation to follow promptly (and in any
event within one business day), of any Acquisition Proposal or any request for
nonpublic information, or of any inquiry with respect to, or that could
reasonably be expected to lead to, any Acquisition Proposal, the material terms
and conditions of any such Acquisition Proposal or inquiry and the identity of
the person making any such Acquisition Proposal or inquiry. The Company shall
not provide any information to or participate in discussions or negotiations
with the person or entity making any Superior Proposal until two business days
after the Company has first notified Parent of such Acquisition Proposal as
required by the preceding sentence. The Company shall (i) keep Parent fully
informed, on a current basis, of the status and details (including any change to
the terms) of any such Acquisition Proposal or inquiry, (ii) provide to Parent
as soon as practicable after receipt or delivery thereof copies of all
correspondence and other written material (A) sent or provided to the Company
from any third party in connection with any Acquisition Proposal (other than
confidential due diligence materials regarding such third party sent to the
Company by such third party in connection with an Acquisition Proposal) or (B)
sent or provided by the Company to any third party in connection with any
Superior Proposal, and (iii) if Parent shall make a counterproposal, consider
and cause its financial and legal advisors to negotiate on its behalf in good
faith with respect to the terms of such counterproposal. Contemporaneously with
providing any information to a third party in connection with any such Superior
Proposal or inquiry, the Company shall furnish a copy of such information to
Parent to the extent that such copy has not previously been provided to Parent.
In addition to the foregoing, the Company shall provide Parent with at least 24
hours prior notice (or such lesser prior notice as provided to the members of
the Company Board but in no event less than eight hours) of any meeting of the
Company Board at which the Company Board is reasonably expected to consider a
Superior Proposal or to recommend a Superior Proposal to its stockholders and
together with such notice a copy of the definitive documentation relating to
such Superior Proposal to the extent that such copy has not previously been
provided to Parent.
(d) Cessation of Ongoing Discussions. The Company shall, and shall
cause its subsidiaries and its and their Representatives to, cease immediately
all discussions and negotiations existing as of the date of this Agreement
regarding any proposal that constitutes, or could reasonably be expected to lead
to, an Acquisition Proposal. As of the date of this Agreement, the Company
represents that neither it nor any of its subsidiaries nor their Representatives
is engaged, directly or indirectly, in any discussions or negotiations with any
other party (other than Parent) with respect to an Acquisition Proposal.
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(e) Definitions. For purposes of this Agreement:
"Acquisition Proposal" means (i) any inquiry, proposal or offer for a
merger, consolidation, dissolution, sale of substantial assets, tender offer,
recapitalization, share exchange or other business combination involving the
Company or any of its subsidiaries, (ii) any proposal for the issuance by the
Company or any of its subsidiaries of over 15% of its equity securities or (iii)
any proposal or offer to acquire in any manner, directly or indirectly, over 15%
of the equity securities or assets (on a book or market value basis) of the
Company, in each case other than a proposal or offer by Parent.
"Confidentiality Agreement" means that certain letter agreement between
the parties hereto and dated the date hereof regarding their mutual
non-disclosure obligations.
"Superior Proposal" means any unsolicited, bona fide written proposal
made by a third party to acquire more than 50% of the equity securities or
assets of the Company, pursuant to a tender or exchange offer, a merger, a
consolidation or a sale of its assets or otherwise, (i) on terms which the
Company Board determines in its good faith judgment to be materially more
favorable to the stockholders of the Company than the Transaction as then
currently proposed by Parent in a Definitive Agreement or otherwise, taking into
account all the terms and conditions of such third party proposal and the
Transaction as then currently proposed by Parent in a Definitive Agreement or
otherwise (including any proposal by Parent to amend the terms of the
Transaction or the Definitive Agreement in response to the third party proposal)
and (ii) that in the good faith judgment of the Company Board is reasonably
capable of being completed on the terms proposed, taking into account all
financial, regulatory, legal and other aspects of such proposal; provided,
however, that no Acquisition Proposal shall be deemed to be a Superior Proposal
if any financing required to consummate the Acquisition Proposal is not
committed, unless the Company Board determines in its good faith judgment (after
consultation with a nationally recognized financial adviser) that such financing
is more likely than not to be obtained upon reasonable terms and on a timely
basis.
(f) Anti-Takeover Statutes. The Company hereby represents to Parent
that the entry by the parties into this Agreement, the Loan Agreement and the
other documents and instruments contemplated thereby will not result in the
applicability of any State of Colorado super-majority vote requirement,
interested stockholder statute, anti-takeover statute or similar law or
regulation to the parties or the Transaction.
1.2 Termination. This Article I shall terminate upon the earlier of the
date that Parent advises the Company in writing that (i) Parent is terminating
all negotiations with the Company regarding a Transaction, (ii) Parent is no
longer interested in pursuing the Transaction with the Company, or (iii) Parent
defaults on its obligations to make loans pursuant to the Loan Agreement.
ARTICLE II
RIGHT OF FIRST REFUSAL
2.1 Grant of Right of First Refusal. The Company hereby grants to
Parent a right of first refusal ("Right of First Refusal") as follows: the
Company shall not execute or enter into any definitive agreement providing for,
or redeem, amend or otherwise make its Rights Plan inapplicable
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to, an Acquisition Proposal unless a Third Party Sale Notice (as defined below)
shall have first been provided to Parent and all applicable terms of this
Article II shall have first been complied with by the Company. As used herein,
"Rights Plan" shall mean that certain Rights Agreement dated as of March 15,
1996 between the Company and American Securities Transfer, Inc., as amended from
time to time.
2.2 Notice of Offer. The "Third Party Sale Notice" required to be
delivered to Parent under Section 2.1 hereof shall include the following
elements: (a) a bona fide, written offer to the Company from a third party that
sets forth in reasonable detail the material terms of the contemplated
Acquisition Proposal, including, without limitation, the structure of the
proposed transaction, the form and amount of consideration to be received by the
Company and/or its shareholders, the material conditions to closing and pre and
post closing covenants, any indemnity, escrow and termination fee terms, the
material terms of any related agreements to be entered into in connection
therewith and the name and address of the offeror (collectively, a "Third Party
Offer"), (b) if such approval would be required to consummate the transaction
contemplated by the Acquisition Proposal under the terms of the Company's
charter documents or applicable law, written confirmation by an authorized
representative of the Company that the Third Party Offer has been approved by
resolution of the Company Board, (c) written confirmation by an authorized
representative of the Company that Parent has the right to exercise its Right of
First Refusal with regard to the Third Party Offer, and (d) copies of any
correspondence and other materials available to the Company relating to such
Third Party Offer (to the extent not previously provided).
2.3 Exercise of Right of First Refusal. Upon delivery of a Third Party
Sale Notice and within ten (10) business days of delivery thereof, Parent may
elect to exercise its Right of First Refusal by providing the Company with an
offer on terms and conditions which are in all material respects not less
favorable from a financial point of view to the stockholders of the Company than
those proposed by the Third Party Offer (the "Parent Offer"). The determination
of whether the terms and conditions of a Parent Offer are in all material
respects not less favorable from a financial point of view to the stockholders
of the Company than those proposed by the Third Party Offer shall be made in
good faith by the Company Board. Parent shall exercise its Right of First
Refusal, if at all, by delivery of written notice to the Company on or before
that date which is ten (10) business days following delivery of a Third Party
Sale Notice (the "Expiration Date"). Failure to deliver such written notice by
the Expiration Date shall be deemed conclusive evidence of Parent's intent not
to exercise such Right of First Refusal with respect to the Acquisition Proposal
specified in the Third Party Sale Notice. In the event that Parent exercises its
Right of First Refusal in accordance with this Article II, the Company shall use
its commercially reasonable efforts in good faith to negotiate and execute a
Definitive Agreement that reflects the Parent Offer, and the Company and its
Representatives shall, consistent with the fiduciary duties of the Company
Board, immediately terminate all current discussions with the third party
regarding the Third Party Offer.
2.4 Non-Exercise of a Right of First Refusal. In the event Parent does
not affirmatively exercise its Right of First Refusal by the Expiration Date,
the Company shall have the right, but not the obligation, to effect the
transaction contemplated by the Acquisition Proposal proposed in the Third Party
Offer on terms and conditions that are the same in all material respects to the
terms and conditions described in the Third Party Sale Notice and the Third
Party Offer. In the event such Acquisition Proposal is not (a) set forth in a
definitive and binding written agreement executed by all
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necessary parties thereto within thirty (30) days following the Expiration Date,
and (b) consummated within one hundred fifty (180) days following the Expiration
Date, then the provisions of this Article II shall once again apply to such
transaction and the Company shall be required to deliver a new Third Party Sale
Notice with respect thereto and to otherwise comply with the terms hereof with
respect thereto. If any new or modified Acquisition Proposal arises during the
pendency of such a Third Party Offer, such Acquisition Proposal shall be subject
to Article I (to the extent stated therein), Parent's Right of First Refusal and
this Article II as well.
2.5 Termination. Parent's Right of First Refusal shall expire at the
earlier of: (i) the date that Parent advises the Company in writing that Parent
is terminating all negotiations with the Company regarding a Transaction, (ii)
the date that Parent advises the Company in writing that Parent is no longer
interested in pursuing the Transaction with the Company, (iii) such time as the
Loan Agreement has terminated and no loans remain outstanding thereunder, or
(iv) such time as Parent defaults on its obligations to make loans pursuant to
the Loan Agreement.
ARTICLE III
MISCELLANEOUS
3.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to Parent, to:
Sirenza Microdevices, Inc.
522 Almanor Avenue
Sunnyvale, CA 94085
Attention: Chief Financial Officer
Telephone No.: (408) 616-5441
Facsimile No.: (408) 739-0952
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
Attention: Steven V. Bernard
Telephone No.: (650) 493-9300
Facsimile No.: (650) 493-6811
(b) if to the Company, to:
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Vari-L Company, Inc.
4895 Peoria Street
Denver, CO 80239
Attention: Chief Financial Officer
Telephone No.: (303) 371-1560
Facsimile No.: (303) 373-3870
with a copy to:
Cooley Godward LLP
380 Interlocken Crescent, Suite 900
Broomfield, CO 80021
Attention: James Linfield
Telephone No.: (720) 566-4000
Facsimile No.: (650) 566-4099
3.2 Interpretation. The word "agreement" when used herein shall be
deemed in each case to mean any contract, commitment or other agreement, whether
oral or written, that is legally binding. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
3.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
3.4 Entire Agreement; Assignment. This Agreement and the documents and
instruments and other agreements among the parties hereto referenced herein: (a)
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof;
(b) are not intended to confer upon any other person any rights or remedies
hereunder; and (c) shall not be assigned by operation of law or otherwise except
as otherwise specifically provided, except that Parent may assign its rights and
delegate its obligations hereunder to its affiliates.
3.5 Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the greatest extent possible, the
economic, business and other purposes of such void or unenforceable provision.
3.6 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other
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remedy conferred hereby, or by law or equity upon such party, and the exercise
by a party of any one remedy will not preclude the exercise of any other remedy.
3.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
Each of the parties hereto agrees that process may be served upon them in any
manner authorized by the laws of the State of Delaware for such persons and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction and such process.
3.8 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
3.9 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
3.10 Termination. This Agreement may be terminated at any time by
mutual written consent of the Company and Parent, and otherwise shall terminate
at such time as all agreements contained in Articles I and II hereof have
terminated by their terms.
3.11 Amendment and Waiver. This Agreement may be amended (and
compliance with any provision hereof may be waived) by the parties hereto at any
time by execution of an instrument in writing signed on behalf of each of the
parties hereto.
3.12 No Obligation. The Company and Parent acknowledge and agree that
except as otherwise expressly provided herein, neither this Agreement nor any
action taken in connection with this Agreement will give rise to any obligation
on the part of either party (a) to continue discussions or negotiations with the
other with respect to the Transaction, or (b) to pursue or enter into the
Transaction or any other relationship of any nature with the other party.
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IN WITNESS WHEREOF, Parent and the Company have caused this Agreement
to be signed by their duly authorized respective officers, all as of the date
first written above.
Sirenza Microdevices
By: GERALD L. QUINNELL
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Name: Gerald L. Quinnell
Title: EVP Business Development
Vari-L Company, Inc.
By: /s/ CHARLES R. BLAND
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Name: Charles R. Bland
Title: CEO
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