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Exhibit 4.4
STOCKHOLDERS VOTING AGREEMENT
THIS STOCKHOLDERS VOTING AGREEMENT (this "AGREEMENT"), dated as of July 20,
1997, by and among TPG PARTNERS II, L.P. ("PARENT"), on the one hand, and
WARBURG, XXXXXX CAPITAL COMPANY, L.P. and WARBURG, XXXXXX & CO. (each a
"STOCKHOLDER" and, collectively, the "STOCKHOLDERS"), on the other hand,
W I T N E S S E T H:
WHEREAS, Parent, TPG and Zilog, Inc., a Delaware corporation (the "COMPANY"),
propose to enter into an Agreement and Plan of Merger dated as of the date
hereof (as the same may be amended or supplemented, the "MERGER AGREEMENT";
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement) providing for the merger (the "MERGER") of a
to-be-formed Delaware corporation and wholly owned subsidiary of Parent ("SUB")
with and into the Company with the Company being the surviving corporation
(hereinafter sometimes referred to as the "SURVIVING CORPORATION"), upon the
terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, each Stockholder owns beneficially and (except as set forth on
Schedule A attached hereto) of record the number of shares of Common Stock, par
value $.01 per share, of the Company (the "COMMON STOCK") set forth opposite its
name on Schedule A attached hereto (such shares of Common Stock, together with
any other shares of capital stock of the Company acquired (including, without
limitation, through the exercise of any option or by reason of any split,
reclassification, stock dividend or other distribution with respect to the
capital stock of the Company) by such Stockholder after the date hereof and
during the term of this Agreement, being collectively referred to herein as the
"SUBJECT SHARES"); and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement,
Parent has required that each Stockholder enter into this Agreement:
NOW, THEREFORE, to induce Parent to enter into, and in consideration of its
entering into, the Merger Agreement, and in consideration of the premises and
the representations, warranties and agreements contained herein, the parties
agree as follows:
1. Representations and Warranties of each Stockholder. Each Stockholder
hereby, severally and not jointly, represents and warrants to Parent as of the
date hereof in respect of itself as follows:
(a) Authority. The Stockholder has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Stockholder
(or in the case of a Stockholder which is a partnership, by a general partner on
behalf of such partnership) and constitutes a valid and binding obligation of
the Stockholder enforceable in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency,
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moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of equity.
The execution and delivery of this Agreement does not, and the consummation of
the transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of, or default (with or without
notice or lapse of time or both) under any provision of, any trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to the
Stockholder or to the Stockholder's property or assets the effect of which, in
any case, would be material and adverse to the ability of the Stockholder to
consummate the transactions contemplated hereby or to comply with the terms
hereof.
(b) The Subject Shares. The Stockholder is the beneficial and (except as set
forth on Schedule A attached hereto) record owner of, and has good and
marketable title to, the Subject Shares set forth opposite such Stockholder's
name on Schedule A attached hereto, free and clear of any claims, liens,
encumbrances and security interests whatsoever. The Stockholder does not own, of
record or beneficially, any shares of capital stock of the Company other than
the Subject Shares set forth opposite such Stockholder's name on Schedule A
attached hereto. The Stockholder has the sole right to vote such Subject Shares,
and none of such Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of such Subject
Shares, except as contemplated by this Agreement.
2. Representations and Warranties of Parent. Parent hereby represents and
warrants to each Stockholder that Parent has all requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent, and the
consummation of the transactions contemplated hereby, have been duly authorized
by all necessary action on the part of Parent. This Agreement has been duly
executed and delivered by Parent and constitutes a valid and binding obligation
of Parent enforceable in accordance with its terms, except that such
enforceability (a) may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of creditors' rights
generally and (b) is subject to general principles of equity. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time or both) under any provision of, any trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to Parent or to
Parent's property or assets the effect of which, in any case, would be material
and adverse to the ability of Parent to consummate the transactions contemplated
hereby or to comply with the terms hereof.
3. Covenants of each Stockholder. Until the termination of this Agreement in
accordance with Section 8, each Stockholder, severally and not jointly, agrees
as follows:
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(a) Vote for the Merger. At any meeting of stockholders of the Company called
to vote upon the Merger and the Merger Agreement or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, the Stockholder shall vote (or cause to be voted), or
execute a written consent in respect of, the Subject Shares in favor of the
Merger, the adoption by the Company of the Merger Agreement and the approval of
the terms thereof and each of the other transactions contemplated by the Merger
Agreement. The Stockholder hereby waives any appraisal rights granted pursuant
to Section 262 of the General Corporation Law of the State of Delaware (the
"DGCL") (or any successor provision) to which it may otherwise be entitled as a
result of the Merger or the other transactions contemplated by the Merger
Agreement.
(b) Vote Against Takeover Proposals. At any meeting of stockholders of the
Company or at any adjournment thereof or in any other circumstances upon which
the Stockholder's vote, consent or other approval is sought, the Stockholder
shall be present (in person or by proxy) and shall vote (or cause to be voted)
the Subject Shares against (and shall not execute any written consent in favor
of) (i) any merger agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company or
any other Takeover Proposal or (ii) any amendment of the Company's certificate
of incorporation or by-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal or
transaction would in any manner impede, frustrate, delay, prevent or nullify the
Merger, the Merger Agreement or any of the other transactions contemplated by
the Merger Agreement. The Stockholder further agrees not to commit or agree to
take any action inconsistent with the foregoing.
(c) Transfer of Subject Shares. Except pursuant to this Agreement and except
as provided in the immediately succeeding sentence of this Section 3(c), the
Stockholder agrees not to (i) transfer, sell, pledge, assign or otherwise
dispose of (including by gift) (collectively, "TRANSFER"), or enter into any
contract, option or other arrangement (including any profit sharing arrangement)
with respect to the Transfer of, any of the Subject Shares to any person other
than pursuant to the terms of the Merger or (ii) enter into any voting
arrangement, whether by proxy, power-of-attorney, voting agreement, voting trust
or otherwise, in connection with, directly or indirectly, any Takeover Proposal,
and agrees not to commit or agree to take any of the foregoing actions.
(d) No Solicitation. During the term of this Agreement, the Stockholder shall
not (i) directly or indirectly solicit, initiate or encourage the submission of,
any Takeover Proposal or (ii) directly or indirectly participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Takeover Proposal.
(e) The Stockholders shall each execute and deliver an "affiliate letter" in
the form attached as an exhibit to the Merger Agreement as contemplated by the
Merger Agreement.
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4. Election to Retain Company Stock and Stockholders Agreement. Each
Stockholder hereby agrees that it will make and not revoke an effective Non-Cash
Election with respect to and otherwise cause that number of Subject Shares
specified as "Number of Pre-Closing Electing Shares" on Schedule A hereof
(subject to adjustment in accordance with the adjustment mechanism set forth in
Section 2.4 of the Merger Agreement) to be "Electing Shares" under the Merger
Agreement. Each of the Stockholders and Parent agrees that it and the Company
will prior to the Effective Time enter into a Stockholders Agreement consistent
with the provisions of Schedule B hereto (all of the material terms of which are
summarized therein).
5. Grant of Irrevocable Proxy.
(a) Existing Proxies Revoked. The Stockholders represent that any proxies
heretofore given in respect of the Subject Shares are not irrevocable, and that
any such proxies are hereby revoked.
(b) Grant of Irrevocable Proxy to Parent. Upon Parent's request, each
Stockholder hereby agrees to irrevocably grant to, and appoint, Parent, and any
person who may hereafter be designated by Parent as permitted under applicable
law, and each of them individually, the Stockholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
Stockholder, to vote the Stockholder's Subject Shares, or grant a consent or
approval in respect of such Subject Shares, in favor of or against, as the case
may be, the matters set forth in Sections 3(a) and 3(b), and to execute and
deliver an appropriate instrument irrevocably granting such proxy. The proxy
granted herein shall terminate upon any termination of this Agreement in
accordance with its terms.
(c) Affirmations. Each Stockholder hereby affirms that any irrevocable proxy
granted pursuant to Section 5(b) will be given in connection with the execution
of the Merger Agreement, and that such irrevocable proxy will be given to secure
the performance of the duties of the Stockholder under this Agreement. If so
granted, the Stockholder hereby ratifies and confirms all that such irrevocable
proxy may lawfully do or cause to be done by virtue thereof. Such irrevocable
proxy, if and when executed, is intended to be irrevocable in accordance with
the provisions of Section 212(e) of the DGCL.
6. Further Assurances. Each Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Parent may reasonably request for
the purpose of effectively carrying out the transactions contemplated by this
Agreement.
7. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that Parent may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to any
direct or indirect wholly owned subsidiary of Parent or Sub or to any affiliate
of Parent or Sub. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
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8. Termination. This Agreement shall terminate upon the earlier of (a) the
termination of the Merger Agreement (for any reason, including a termination
pursuant to Section 8.1(d) or Section 8.1(e) thereof) and (b) the Effective Time
of the Merger.
9. General Provisions.
(a) Amendments. This Agreement may not be amended except by an instrument in
writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by overnight courier (providing proof of delivery) to Parent
in accordance with the notification provision contained in the Merger Agreement
and to the Stockholders at their respective addresses set forth on Schedule A
attached hereto (or at such other address for a party as shall be specified by
like notice).
(c) Interpretation. When a reference is made in this Agreement to Sections,
such reference shall be to a Section to this Agreement unless otherwise
indicated. 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. Wherever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) 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 of the counterparts have been signed by each of the
parties and delivered to the other party, it being understood that each party
need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement (including
the documents and instruments referred to herein) (i) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof and (ii)
is not intended to confer upon any person other than the parties hereto and
other than Sub, which is an express beneficiary of this Agreement, any rights or
remedies hereunder.
(f) 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 law thereof.
(g) Severability. If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law, and the parties hereto shall
reasonably negotiate in good faith a substitute term or provision that comes as
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close as possible to the invalidated and unenforceable term or provision, and
that puts each party in a position as nearly comparable as possible to the
position each such party would have been in but for the finding of invalidity or
unenforceability, while remaining valid and enforceable.
10. Stockholder Representatives. Each Stockholder signs solely in its capacity
as the record holder and beneficial owner of, or the general partner of a
partnership which is the beneficial owner of, such Stockholder's Subject Shares
and nothing contained herein shall limit or affect any actions taken by any
officer, director, partner, affiliate or representative of a Stockholder who is
or becomes an officer or a director of the Company in his or her capacity as an
officer or director of the Company and none of such actions in such capacity
shall be deemed to constitute a breach of this Agreement.
11. Enforcement. The parties agree, and the beneficiaries of each trust which
is a party hereto have agreed, 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
of this Agreement in any court of the United States located in the State of
Delaware or in a Delaware state court, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit such party to the personal jurisdiction of
any Federal court located in the State of Delaware or any Delaware state court
in the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (b) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (c) agrees that such party will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than a
Federal court sitting in the state of Delaware or a Delaware state court, (d)
waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or
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any of the transactions contemplated hereby, and (e) appoints The Corporation
Trust Company as such party's agent for service of process in the state of
Delaware.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the
date first written above.
TPG PARTNERS II, L.P.
By: TPG GenPar II, L.P.
its General Partner,
By: TPG Advisors II, Inc.
its General Partner
By: /s/ XXXXX X. XXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
STOCKHOLDERS:
WARBURG, XXXXXX CAPITAL COMPANY,
L.P.
By: Warburg, Xxxxxx & Co.,
its General Partner,
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: A General Partner
WARBURG, XXXXXX & CO.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: A General Partner
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SCHEDULE A
Number of
Shares of Pre-Closing
Name Common Stock Electing Share
----------- ----------
WARBURG, XXXXXX CAPITAL 5,378,004 400,000
COMPANY, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
WARBURG, XXXXXX & CO. 99,500 0
----------- ----------
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TOTAL 5,477,504 400,000
X-0
0
XXXXXXXX X
SUMMARY OF PRINCIPAL TERMS
OF
SHAREHOLDERS AGREEMENT
PARTIES The Company, TPG Partners II, L.P., together
with its affiliates ("TPG"), Warburg, Xxxxxx
Capital Company, L.P. ("Warburg") and other
shareholders who receive Shares in the Merger
(the "Investors").
RIGHT OF FIRST OFFER Warburg and the Investors will
grant to the Company (or an affiliate
thereof) a right of first offer with respect
to any proposed sales by them of Shares.
Reasonable and customary procedures
concerning this right of first offer will be
set forth in the Shareholders Agreement.
RIGHT TO CAUSE SALE If TPG decides to sell all of its remaining
Shares received in the Merger (other than a
sale to an affiliate), and holds at that time
(prior to giving effect of the proposed sale)
more than 40% of such Shares, then TPG shall
have the right to require Warburg and the
Investors to sell their remaining Shares as
part of that sale on the same price and terms
(or to vote in favor of any merger or other
transaction which would effect such a sale).
RIGHT TO PARTICIPATE IN SALE In the event that, during the period
beginning immediately after the closing of
the Merger and ending upon a Public Offering,
TPG holds 40% or more of the voting power of
the Company and proposes to engage in a sale
of equity interests which would result in a
transfer of 40% or more of the voting power
of the Company to an unaffiliated purchaser,
then Warburg and the Investors shall have the
right to participate pro rata in such sale
transaction on the same price and terms as
TPG. (As used herein, "Public Offering" shall
mean a registered offering of equity
securities of the Company or an institutional
private placement or 144A offering of such
equity securities with or without
registration rights.)
REGISTRATION RIGHTS In the Shareholders Agreement (or by separate
registration rights agreement) the Company
will grant to Warburg and the Investors
"piggyback" registration rights at the
Company's expense (other than underwriting
discounts and selling commissions), with
customary
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provisions regarding notice of intent to file
a registration statement, cutbacks in the
event of an underwritten offering,
indemnification and other customary
provisions.
Warburg and the Investors will, if requested
by the underwriters for an underwritten
public offering of equity securities of the
Company, agree not to sell or transfer any
equity securities of the Company (other than
equity securities, if any, including in such
offering), without the consent of the
underwriters, for a period of not more than
180 days following effectiveness of the
registration statement relating to a Public
Offering.
FACILITATION OF DISPOSITION If a Public Offering shall have not occurred
within five years of the Closing of the
Merger, the Company will reimburse Warburg
for the cost of investment banking fees, in
an amount not to exceed $50,000, in
connection with an analysis of Warburg's
ownership position and disposition
strategies.
AFFILIATE TRANSACTIONS The Shareholders Agreement will provide that
agree- ments or transactions between the
Company and TPG or any of its affiliates
shall require the prior approval of the
holders of a majority of the voting common
stock of the Company (excluding stock held by
TPG and its affiliates) other than agreements
or transactions which are on arms- length
terms or consulting fees with terms which are
customary as between TPG and its portfolio
companies.
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