EXHIBIT 2.02
FORM OF COMPANY VOTING AGREEMENT
AGREEMENT, dated as of March __, 2002 (this "Agreement"), by and among
Intersil Corporation, a Delaware corporation ("Parent"), Echo Acquisition, Inc.,
a Delaware corporation and wholly-owned subsidiary of Parent ("Merger Sub"),
Elantec Semiconductor, Inc., a Delaware corporation ("Company"), and the
stockholders of the Company set forth in Annex A hereto (each a "Stockholder"
and, collectively, the "Stockholders").
WHEREAS, the Board of Directors of Parent and the Board of Directors of
Company have approved an Agreement and Plan of Merger, dated as of even date
herewith (the "Merger Agreement") (capitalized terms used but not defined herein
having the respective meanings given to them in the Merger Agreement), providing
for the merger of the Company with and into Merger Sub;
WHEREAS, the Stockholder is the record and beneficial owner of shares of
Company common stock, par value $.01 per share ("Company Common Stock"), Company
Options, warrants to purchase Company Common Stock and/or interests in Company
Common Stock through the Company 423 Plan or the Company's 401(k) plan, in the
amounts and of the types set forth opposite the Stockholder's name on Annex A
hereto (the "Shares");
WHEREAS, as a condition to Parent's entering into the Merger Agreement,
Parent has required that the Stockholder agree, and the Stockholder has agreed,
to enter into this Agreement.
NOW, THEREFORE, to induce Parent to enter into the Merger Agreement and
in consideration of the premises herein contained, the parties agree as follows:
1. Grant of Irrevocable Proxy. (a) Until this Agreement is
terminated, the Stockholder hereby irrevocably appoints Merger Sub, its
officers, agents and nominees, with full power of substitution, as proxy for and
attorney in fact of the Stockholder to act with respect to and vote the Shares,
if any, owned by the Stockholder for and in the name, place and stead of the
Stockholder at any annual, special or other meeting of the holders of shares of
the Company Common Stock and at any adjournment or postponement thereof or
pursuant to any written consent in lieu of a meeting, to the fullest extent that
the Shares are entitled to be voted, in favor of the Merger, the Merger
Agreement and the transactions contemplated thereby. In all other matters, the
Shares shall be voted by and in the manner determined by the Stockholder upon
written notice to Merger Sub. The Stockholder hereby represents that he has not
heretofore granted any irrevocable proxy with respect to the Shares and hereby
revokes any and all proxies which may heretofore have been granted with respect
to the Shares.
(b) The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder's execution
and delivery of this Agreement. The Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1 is given in connection with and as
an inducement for the execution by Parent of the Merger Agreement and
to secure the performance of the duties of the Stockholder under this Agreement.
The Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may not be revoked. The Stockholder hereby ratifies and
confirms all that such proxy may lawfully do or cause to be done by virtue
hereof. This proxy is executed and intended to be irrevocable in accordance with
the provisions of the DGCL.
2. Additional Covenants of the Stockholder. The Stockholder hereby
covenants and agrees with Parent and Merger Sub that, until this Agreement
terminates:
(a) The Stockholder will deliver to Parent at Parent's request a
written representation confirming, as of immediately prior to the Effective
Time, the accuracy of the representations and warranties contained in Section 3.
(b) As of the date hereof, the Stockholder will execute the Company
Affiliate Letter promptly upon request therefor, which letter shall be in the
form attached as an exhibit to the Merger Agreement.
3. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent and Merger Sub that:
(a) (i) The Shares listed on Annex A opposite the Stockholder's name
are the only shares of Company capital stock, securities convertible into
Company capital stock, or other rights in respect of Company capital stock
(collectively, "Company Securities") owned of record or beneficially by the
Stockholder or in which the Stockholder has any interest; (ii) except as set
forth on Annex A, such Shares are owned by the Stockholder, free and clear of
all liens, claims, charges and encumbrances of any kind whatsoever except for
liens, claims or charges arising from margin loans from a bank or brokerage firm
and except as contemplated by this Agreement, and none of such Shares is subject
to any voting trust or other agreement or arrangement (except as created by this
Agreement) with respect to the voting of such Shares; and (iii) the Stockholder
does not presently own any options to purchase or rights to subscribe for or
otherwise acquire any other shares of Company Common Stock except as set forth
in Annex A.
(b) The Stockholder has full right, power and authority to execute
and deliver this Agreement and to perform all of such Stockholders' obligations
hereunder, and such execution, delivery and performance have been duly
authorized by all requisite action of the Stockholder and no other legal
proceedings are necessary therefor.
(c) This Agreement has been duly and validly executed and delivered
by the Stockholder and represents a valid and legally binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights
generally or laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
(d) Except as noted on Annex A, the execution, delivery and
performance of this Agreement by the Stockholder will not constitute a violation
of, conflict with or result in a default under (i) any contract, understanding
or arrangement to which the Stockholder is a party
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or by which the Stockholder is bound or require the consent of any other person
or any party pursuant thereto, (ii) any judgment, decree or order applicable to
the Stockholder, or (iii) any applicable law, statute, rule or regulation.
4. Representations, Warranties and Covenants of Parent and Merger
Sub. Parent and Merger Sub hereby represent and warrant to the Stockholder that
(i) Parent and Merger Sub each have full corporate right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder,
(ii) such execution, delivery and performance have been duly authorized by all
requisite corporate action by Parent and Merger Sub, and no other corporate
proceedings are necessary therefor, (iii) this Agreement has been duly and
validly executed and delivered by Parent and Merger Sub and represents a valid
and legally binding obligation of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with its terms; except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally or laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (iv) the execution, delivery and performance of
this Agreement by Parent and Merger Sub will not constitute a violation of,
conflict with or result in a default under (A) any contract, understanding or
arrangement to which either Parent or Merger Sub is a party or by which either
is bound or require the consent of any other person or any party pursuant
thereto, (B) any judgment, decree or order applicable to Parent or Merger Sub,
or (C) any applicable law, statute, rule or regulation.
5. Termination. This Agreement, other than the obligations set forth
in Section 7, shall terminate at the earlier of the Effective Time or after
termination of the Merger Agreement pursuant to its terms.
6. Severability. Any term, provision, covenant or restriction
contained in this Agreement held by a court or other Governmental Authority of
competent jurisdiction to be invalid, void or unenforceable shall be ineffective
to the extent of such invalidity, voidness or unenforceability, but neither the
remaining terms, provisions, covenants or restrictions contained in this
Agreement nor the validity or enforceability thereof in any other jurisdiction
shall be affected or impaired thereby. Any term, provision, covenant or
restriction contained in this Agreement that is so found to be so broad as to be
unenforceable shall be interpreted to be as broad as is enforceable.
7. Expenses. Each of the parties hereto shall pay all costs and
expenses incurred by such person or on such person's behalf in connection with
the transactions contemplated hereunder, including fees and expenses of such
person's own financial consultants, investment bankers, accountants and counsel,
except as otherwise provided herein.
8. Entire Agreement. This Agreement (including the documents and the
instruments referred to therein) constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, agreements or representations by or between the
parties, written and oral, with respect to the subject matter hereof and
thereof.
9. Successors; No Third Party Beneficiaries. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their
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respective successors and assigns. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party, other than the parties hereto and
their respective successors and assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
10. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or dispatched by a nationally recognized overnight courier service
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(i) if to Parent or Merger Sub, to:
Intersil Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Dechert
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: G. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Stockholder:
to the address set forth opposite the name on Annex A.
with a copy to:
Fenwick & West LLP
Embarcadero Center West
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
11. Counterparts. This Agreement may be executed in counterparts, and
each such counterpart shall be deemed to be an original instrument, but both
such counterparts together shall constitute but one agreement.
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12. Specific Performance. The parties hereto agree that if for any
reason Parent or the Stockholder shall have failed to perform their obligations
under this Agreement, then the party hereto seeking to enforce this Agreement
against such non-performing party shall be entitled to specific performance and
injunctive and other equitable relief, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. This provision
is without prejudice to any other rights that any party hereto may have against
any other party hereto for any failure to perform its obligations under this
Agreement.
13. Governing Law. This Agreement shall be governed by the laws of
the State of Delaware, without giving effect to the conflict of laws principles
thereof.
14. Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by the
parties hereto.
15. Duties. Parent and Merger Sub acknowledge and agree that the
Stockholder has entered into this Agreement in his capacity as a stockholder of
Company and that this Agreement shall in no way restrict the Stockholder in such
Stockholder's capacity as a director or officer of Company and the performance
of such person's duties to Company and its stockholders.
16. Additional Shares. Notwithstanding the provisions of Section 15,
in the event that the Stockholder acquires any additional Company Securities,
such securities shall, without further action of the parties, be subject to the
provisions of this Agreement, and Annex A will be deemed amended accordingly. If
the Stockholder acquires additional Company Securities, such Stockholder shall
promptly notify Parent in writing of such acquisition.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
INTERSIL CORPORATION
By:
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Name:
Title:
ECHO ACQUISITION, INC.
By:
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Name:
Title:
ELANTEC SEMICONDUCTOR, INC.
By:
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Name:
Title:
STOCKHOLDER
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ANNEX A
SECURITIES (IN NUMBER OF SHARES)
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COMMON-
BY
COMPANY
COMMON- COMMON- 423 PLAN OR
DIRECT BY OPTIONS 401(k) PLAN
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RECORD AND BENEFICIAL OWNER
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TOTAL
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