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Contract analysis / ftc-timing-agreement-draft.docx
ftc-timing-agreement-draft.docx
1001-00004 · 29 clauses
High · 0 Medium · 4 Standard · 2
I. Introduction
I. Introduction This firm represents Ardent Capital Partners III LP ("Ardent Capital" or the "Sponsor") and its wholly owned subsidiaries, Ardent Apex Holdings Inc. ("Parent") and Ardent Apex Merger Sub Inc. ("Merger Sub," and together with the Sponsor and Parent, the "Acquiring Persons"), in connection with the proposed acquisition of Luminex Systems Holdings Inc. ("Luminex" or the "Target") (the "Transaction"). Not
II. Summary of the Transaction Standard
⚑ Commercial term
II. Summary of the Transaction A. Transaction Overview Pursuant to an Agreement and Plan of Merger dated March 24, 2025 (the "Merger Agreement"), by and among Parent, Merger Sub, and Luminex, Merger Sub will merge with and into Luminex in a reverse triangular merger effected under the Delaware General Corporation Law (the "DGCL"), with Luminex surviving the merger as a wholly owned subsidiary of Parent (the "Merger")
III. Proposed Timing Agreement Framework
III. Proposed Timing Agreement Framework The Acquiring Persons respectfully propose the following framework for a timing agreement. The Acquiring Persons recognize that timing agreements are negotiated instruments and welcome Staff's input on all elements of this proposal. A. Second Request Compliance Period The Acquiring Persons propose that they shall have a compliance period of [60/90] calendar days from the date
1. Theodore ("Ted") Hargrove — Co-Founder & Managing Partner
1. Theodore ("Ted") Hargrove — Co-Founder & Managing Partner
2. Victoria Langford — Co-Founder & Managing Partner
2. Victoria Langford — Co-Founder & Managing Partner
3. Marcus Ellison — Partner, Head of Enterprise Technology Investments
3. Marcus Ellison — Partner, Head of Enterprise Technology Investments
4. Priya Chandrasekaran — Principal, Enterprise Technology Team
4. Priya Chandrasekaran — Principal, Enterprise Technology Team
5. David Ng — Vice President, Enterprise Technology Team
5. David Ng — Vice President, Enterprise Technology Team Vectis Solutions LLC:
6. Michael Parekh — Chief Executive Officer
6. Michael Parekh — Chief Executive Officer
7. Such additional Vectis custodians as may be identified cooperatively with Staff
7. Such additional Vectis custodians as may be identified cooperatively with Staff Luminex Systems Holdings Inc.:
8. Such Luminex personnel as may be identified cooperatively with Staff and with seller's Medium
⚑ Liability cap to check against exposure
8. Such Luminex personnel as may be identified cooperatively with Staff and with seller's counsel, taking into account the respective custodians designated by Luminex in its own Second Request compliance process The Acquiring Persons recognize that Staff may wish to add custodians or modify the proposed list and are willing to work cooperatively to reach agreement on a final custodian list that is both comprehensive
1. Theodore ("Ted") Hargrove — Co-Founder & Managing Partner, Ardent Capital Partners III
1. Theodore ("Ted") Hargrove — Co-Founder & Managing Partner, Ardent Capital Partners III LP
2. Victoria Langford — Co-Founder & Managing Partner, Ardent Capital Partners III LP
2. Victoria Langford — Co-Founder & Managing Partner, Ardent Capital Partners III LP
3. Michael Parekh — Chief Executive Officer, Vectis Solutions LLC
3. Michael Parekh — Chief Executive Officer, Vectis Solutions LLC
4. Such other persons as Staff may reasonably request, including additional Ardent Capita
4. Such other persons as Staff may reasonably request, including additional Ardent Capital investment professionals and Vectis executives The Acquiring Persons request that Staff provide at least ten (10) business days' advance notice before scheduling any investigational hearing, and that the parties cooperate in good faith to identify mutually convenient dates. The Acquiring Persons further request that, to the ext
IV. Certification
IV. Certification A. Certification of Substantial Compliance Upon completion of the production of all responsive documents and data, the Acquiring Persons shall certify substantial compliance with the Second Request in accordance with 16 C.F.R. § 803.20. The certification will be submitted by counsel on behalf of Parent and Merger Sub, attesting that the Acquiring Persons have made a good-faith effort to comply with
V. Pull-and-Refile Rights
V. Pull-and-Refile Rights A. Reservation of Pull-and-Refile Right The Acquiring Persons expressly reserve the right, at any time prior to certification of substantial compliance with the Second Request, to withdraw the pending HSR notification and refile a new Notification and Report Form, thereby restarting a new initial thirty (30) calendar-day waiting period under Section 7A(b)(1)(A) of the Clayton Act. This reser
VI. Contractual Timeline Considerations Standard
⚑ Commercial term
VI. Contractual Timeline Considerations The Acquiring Persons respectfully draw Staff's attention to the contractual timeline for consummation of the Transaction. The Merger Agreement provides for an outside date of September 10, 2025 (the "Outside Date"), after which either party may terminate the Merger Agreement if the closing has not occurred. The Outside Date may be extended by either party, at its sole election
VII. Parallel International Regulatory Proceedings Medium
⚑ Confidentiality undertaking
VII. Parallel International Regulatory Proceedings The Acquiring Persons note that the Transaction is the subject of regulatory filings in multiple jurisdictions outside the United States, reflecting the global scope of Luminex's operations. The following filings have been made or are anticipated: (a) Committee on Foreign Investment in the United States (CFIUS). A voluntary joint notice was filed with CFIUS on April
VIII. Cooperation Commitments
VIII. Cooperation Commitments The Acquiring Persons are committed to the highest level of cooperation throughout the FTC's review of the Transaction. Specifically, the Acquiring Persons commit to the following:
1. Single Point of Contact. The Acquiring Persons designate Elaine Forsythe, Partner, Ant
1. Single Point of Contact. The Acquiring Persons designate Elaine Forsythe, Partner, Antitrust & Competition Group, Calderwood & Harkness LLP, as the single point of contact for all communications related to the Second Request and the FTC's investigation. All communications from Staff regarding the investigation should be directed to Ms. Forsythe in the first instance. Ms. Forsythe will be supported by James Prentic
2. Prompt and Good Faith Responses. The Acquiring Persons will respond to all inquiries f
2. Prompt and Good Faith Responses. The Acquiring Persons will respond to all inquiries from Staff promptly and in good faith, and will endeavor to provide substantive responses to questions and requests within a reasonable timeframe.
3. Rolling Productions. The Acquiring Persons will provide rolling productions of respons
3. Rolling Productions. The Acquiring Persons will provide rolling productions of responsive documents and data on at least a weekly basis throughout the compliance period, commencing as soon as practicable following agreement on custodians and search terms. The Acquiring Persons will prioritize the production of materials that Staff has identified as most relevant to their competitive analysis.
4. Regular Status Calls. The Acquiring Persons propose that counsel be available for regu
4. Regular Status Calls. The Acquiring Persons propose that counsel be available for regular status calls with Staff to discuss the progress of the compliance effort, any production issues, and the overall timeline for the investigation. The Acquiring Persons propose a bi-weekly call schedule, or such other frequency as Staff may prefer.
5. Privilege Dispute Resolution. The Acquiring Persons will promptly identify and work to
5. Privilege Dispute Resolution. The Acquiring Persons will promptly identify and work to resolve any privilege disputes or other production issues that arise during the compliance process. The Acquiring Persons are committed to a transparent and good-faith approach to privilege claims and will provide detailed privilege log entries sufficient to permit Staff to evaluate the basis for any privilege assertion.
6. Engagement on Remedies. The Acquiring Persons will cooperate in good faith regarding a
6. Engagement on Remedies. The Acquiring Persons will cooperate in good faith regarding any potential remedies or structural solutions that may be proposed by Staff, including with respect to the competitive overlap between Luminex and Vectis Solutions LLC in the procurement-automation SaaS market. While the Acquiring Persons believe that the Transaction, as proposed, is unlikely to substantially lessen competition i
IX. Confidentiality Medium
⚑ Confidentiality undertaking
IX. Confidentiality The Acquiring Persons respectfully request that the FTC treat all information and materials provided by the Acquiring Persons in connection with the Second Request and the investigation as confidential commercial or financial information within the meaning of Section 6(f) of the FTC Act, 15 U.S.C. § 46(f), and the confidentiality provisions of the HSR Act, 15 U.S.C. § 18a(h). The Acquiring Persons
X. Contact Information
X. Contact Information For the convenience of Staff, the contact information for counsel and client representatives is set forth below: Lead Antitrust Counsel: Elaine Forsythe Partner, Antitrust & Competition Group Calderwood & Harkness LLP 7 Times Square New York, NY 10036 Telephone: (212) 558-4217 Email: eforsythe@calderwoodharkness.com Additional Counsel: James Prentice Partner (Responsible Partner, M&A) Calderwoo
XI. Conclusion and Request for Meeting Medium
⚑ Confidentiality undertaking
XI. Conclusion and Request for Meeting The Acquiring Persons respectfully request that, promptly upon issuance of any Second Request, Staff schedule an introductory meeting or conference call with the Acquiring Persons' counsel to discuss: (a) the proposed timing agreement framework outlined in this letter; (b) the process and timeline for custodian and search term negotiations; (c) any preliminary questions or areas