AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is being entered into as of June 23, 1998, by and among Unitrode
Corporation, a Maryland corporation (the "Acquiror"), Merrimack
Corporation, a Delaware corporation and a wholly owned subsidiary of the
Acquiror ("Newco"), and BENCHMARQ Microelectronics, Inc., a Delaware
corporation (the "Company").
The Acquiror, Newco and the Company are parties to an Agreement
and Plan of Merger, dated as of March 2, 1998 (the "Agreement"), and desire
to amend certain terms and provisions of the Agreement as set forth
therein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein and the consummation of the transactions
contemplated by the Agreement, the Acquiror, Newco and the Company agree as
follows (with capitalized terms used and not defined herein having their
respective meanings ascribed to them in the Agreement):
1. Defined Terms. (a) The definition of "Acquiror's Disclosure
Letter" as set forth in Section 1.2 of the Agreement is hereby amended to
read in its entirety as follows:
"'Acquiror's Disclosure Letter' will mean a letter of even
date with the Amendment to this Agreement dated as of June 23, 1998, by and
among the Acquiror, Newco and the Company (the "Amendment") delivered by
the Acquiror to the Company concurrently with the execution of the
Amendment, which, among other things, will identify exceptions to the
Acquiror's representations and warranties contained in Article V by
specific section and subsection references."
(b) The definition of "Company's Disclosure Letter" as set forth
in Section 1.2 of the Agreement is hereby amended to read in its entirety
as follows:
"'Company's Disclosure Letter' will mean a letter of even
date with the Amendment delivered by the Company to the Acquiror Companies
concurrently with the execution of the Amendment, which, among other
things, will identify exceptions to the Company's representations and
warranties contained in Article IV by specific section and subsection
references."
(c) The definition of "Exchange Ratio" as set forth in Section
1.2 of the Agreement is hereby amended to read in its entirety as follows:
"'Exchange Ratio' will mean the ratio of conversion of
Company Common Stock into Acquiror Common Stock pursuant to the Merger as
provided in the first sentence of Subsection 3.1(a)."
2. Merger Consideration. (a) Section 3.1(a) of the Agreement
is hereby amended to read in its entirety as follows:
"Subject to the other provisions of this Article III, each share
of Company Common Stock issued and outstanding immediately prior
to the Effective Time (excluding any Company Common Stock
described in Subsection 3.1(c)) will be converted into the right
to receive one (1) share of Acquiror Common Stock (and the
associated Acquiror Right) (the "Exchange Ratio").
Notwithstanding the foregoing, if between the date of this
Agreement and the Effective Time the outstanding shares of the
Acquiror Common Stock or the Company Common Stock shall have been
changed into a different number of shares or a different class,
by reason of any stock dividend, subdivision, reclassification,
recapitalization, split, conversion, consolidation, combination
or exchange of shares, the Exchange Ratio will be correspondingly
adjusted to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, conversion,
consolidation, combination or exchange of shares."
(b) Section 3.2 of the Agreement is hereby amended to read in its
entirety as follows:
"[THIS SECTION INTENTIONALLY LEFT BLANK.]"
3. Representations and Warranties.
(a) Section 4.8(a) of the Agreement is hereby amended to read in
its entirety as follows:
"(a) except as set forth in Subsection 4.8(a) of the
Company's Disclosure Letter, since March 31, 1998,
(i) no event or events (other than any event that is
directly attributable to the prospect of consummation
of the Merger or is of general application to all or a
substantial portion of the Company's industry and other
than any event that is expressly subject to any other
representation or warranty contained in this
Article IV) have to the Knowledge of the Company,
occurred that, individually or in the aggregate, would
constitute or cause a Material Adverse Effect on the
Company and (ii) there have not been any change or
changes (other than any change that is directly
attributable to the prospect of consummation of the
Merger or is of general application to all or a
substantial portion of the Company's industry and other
than any change that is expressly subject to any other
representation or warranty contained in this
Article IV) in the business, condition (financial or
other), results of operations, properties, assets or
liabilities of the Company or its Subsidiaries which
would have, in the aggregate, a Material Adverse Effect
on the Company."
(b) Section 4.22 of the Agreement is hereby amended to read in
its entirety as follows:
"The Board of Directors of the Company has received the opinion
of Prudential Securities, Inc., the Company's financial advisor,
substantially to the effect that, as of June 23, 1998, the
consideration to be received by the holders of Company Common
Stock in the Merger is fair to such holders from a financial
point of view, a copy of which opinion has been provided to the
Acquiror."
(c) Section 5.8(a) of the Agreement is hereby amended to read in
its entirety as follows:
"(a) Except as set forth in Subsection 5.8(a) of the
Acquiror's Disclosure Letter, since May 2, 1998, (i) no
event or events (other than any event that is directly
attributable to the prospect of consummation of the
Merger or is of general application to all or a
substantial portion of the Acquiror's industry and
other than any event that is expressly subject to any
other representation or warranty continued in this
Article V) have to the Knowledge of the Acquiror,
occurred that, individually or in the aggregate, would
constitute or cause a Material Adverse Effect on the
Acquiror and (ii) there have not been any change or
changes (other than any change that is directly
attributable to the prospect of consummation of the
Merger or is of general application to all or a
substantial portion of the Acquiror's industry and
other than any change that is expressly subject to any
other representation or warranty contained in this
Article V) in the business, condition (financial or
other), results of operations, properties, assets or
liabilities of the Acquiror or its Subsidiaries which
would have, in the aggregate, a Material Adverse Effect
on the Acquiror."
(d) Section 5.14 of the Agreement is hereby amended to read in
its entirety as follows:
"The Board of Directors of the Acquiror has received the opinion
of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc., the Acquiror's financial
advisor, substantially to the effect that, as of June 23, 1998,
the consideration to be received by the holders of Acquiror
Common Stock in the Merger is fair to such holders from a
financial point of view, a copy of which opinion has been
provided to the Company."
4. Covenants. Section 6.1 of the Agreement is hereby amended in
its entirety to read:
"(a) Each of the Company and the Acquiror hereby covenants and
agrees that, except as set forth in Section 6.1(a) of the
Company's Disclosure Letter or Section 6.1(a) of the Acquiror's
Disclosure Letter, as the case may be, prior to the Effective
Time, unless otherwise expressly contemplated by this Agreement
or consented to in writing by the other, it will and will cause
its Subsidiaries to operate its business in the usual and
ordinary course consistent with past practice and use all
reasonable efforts to preserve substantially intact its business
organization, maintain its rights and franchises, retain the
services of its respective key employees and preserve the
goodwill of those having business relationships with it,
including customers and suppliers. The Company further covenants
and agrees that prior to the Effective Time, except as otherwise
consented to in writing by the Acquiror, it will and will cause
its Subsidiaries to maintain and keep its properties and assets
in as good repair and condition as at present, ordinary wear and
tear excepted, and use all reasonable efforts to keep in full
force and effect insurance and bonds comparable in amount and
scope of coverage to that currently maintained, except in each
case for any matters that, individually or in the aggregate,
would not have a Material Adverse Effect on the Company."
5. Termination. (a) Section 9.1(h) of the Agreement is hereby
amended to read in its entirety as follows:
"[THIS SECTION INTENTIONALLY LEFT BLANK.]"
(b) Section 9.1(j) of the Agreement is hereby amended to read in
its entirety as follows:
"(j) by the Company, if from and after the date of the
Amendment, the Board of Directors of the Acquiror fails
to recommend approval by the stockholders of the
Acquiror of the issuance of shares of Acquiror Common
Stock pursuant to this Agreement or withdraws or
modifies (or publicly announces an intention to
withdraw or modify) its approval and recommendation in
a manner materially adverse to the Company or shall
have resolved to do any of the foregoing;".
6. Termination Fees. (a) Section 9.2(b) of the Agreement is
hereby amended to read in its entirety as follows:
"(b) If this Agreement is terminated: (i) by the Acquiror
pursuant to clause (i) of Subsection 9.1(i) hereof (except if
circumstances exist that would allow the Company to terminate
this Agreement pursuant to Subsection 9.1(c) hereof as a result
of a Material Adverse Effect on the Acquiror); (ii) by the
Acquiror pursuant to Subsection 9.1(i) hereof under any
circumstances other than those described in clause (i) of this
Subsection 9.2(b); (iii) by Acquiror or Company pursuant to
Subsection 9.1(f) hereof because of the failure to obtain the
required approval from the Company stockholders and at the time
of such termination or prior to the Company Stockholders' Meeting
there shall have been an Acquisition Proposal (whether or not
such offer, proposal, announcement or agreement shall have been
rejected or shall have been withdrawn prior to the time of such
termination or of the Company Stockholders' Meeting); or (iv) by
Acquiror as a result of Company's material breach of Section 7.3
or Subsection 7.1(a) hereof, the Company shall promptly pay to
Acquiror or the Company by wire transfer of same day funds not
later than two Business Days after the date of such termination a
termination fee of $4,528,000 (the "Termination Fee"), provided,
however, that if this Agreement is terminated by Acquiror or the
Company pursuant to Subsection 9.1(f) hereof under the
circumstances described in Subsection 9.2(b)(iii) hereof, and at
the time of such termination the stockholders of the Acquiror
shall have failed to approve the issuance of Acquiror Common
Stock pursuant to this Agreement, the Acquiror shall not be
entitled to the Termination Fee."
(b) Section 9.2(c) of the Agreement is hereby amended to read
in its entirety as follows:
"(c) If this Agreement is terminated by the Company
pursuant to: (i) Subsection 9.1(c) hereof as a result
of the Acquiror's material breach of Subsection 7.1(b)
or Section 7.3 hereof or (ii) Subsection 9.1(j) hereof
(except in the case of any termination pursuant to
Subsection 9.1(j) hereof described below), the Acquiror
shall promptly pay to the Company by wire transfer of
same day funds not later than two Business Days after
written demand therefor, up to $500,000 to reimburse
the Company for up to that amount of the Company's
actual, verifiable out-of-pocket expenses incurred by
the Company in connection with the Merger. If this
Agreement is terminated by the Company pursuant to
Subsection 9.1(g), the Acquiror shall promptly pay to
the Company by wire transfer of same day funds not
later than two Business Days after written demand
therefor, up to $250,000 to reimburse the Company for
up to that amount of the Company's actual, verifiable
out-of-pocket expenses incurred by the Company in
connection with the Merger. If this Agreement is
terminated by the Company pursuant to Subsection 9.1(j)
hereof, and at the time of such termination there shall
have been an Acquiror Acquisition Proposal (whether or
not such offer, proposal, announcement or agreement
shall have been rejected or shall have been withdrawn
prior to the time of such termination), and the
stockholders of Acquiror shall have failed to approve
the issuance of Acquiror Common Stock pursuant to this
Agreement, the Acquiror shall promptly pay to the
Company by wire transfer of same day funds not later
than two Business Days after the date of such
termination fee of $2,000,000.
7. Agreement in Full Force and Effect.
(a) The Company hereby represents and warrants to the Acquiror
Companies that (i) each of the representations and warranties of the
Company contained in the Agreement, as amended hereby, is true and correct
as of the date hereof and (ii) each of the agreements and covenants of the
Company required by the Agreement, as amended hereby, to have been complied
with prior to the date hereof has been complied with in all respects.
(b) The Acquiror Companies hereby represent and warrant to the
Company that (i) each of the representations and warranties of the Acquiror
Companies contained in the Agreement, as amended hereby, is true and
correct as of the date hereof and (ii) each of the agreements and covenants
of the Acquiror Companies required by the Agreement, as amended hereby, to
have been complied with prior to the date hereof has been complied with in
all respects.
(c) The Agreement, as amended by this Amendment, shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be signed by their duly authorized officers as of the date first above
written.
UNITRODE CORPORATION
By________________________
Name:
Title:
MERRIMACK CORPORATION
By________________________
Name:
Title:
BENCHMARQ MICROELECTRONICS,
INC.
By__________________________
Name:
Title: