FORM OF TENDER AND VOTING AGREEMENT
Exhibit
4
Execution Version
FORM OF TENDER AND VOTING AGREEMENT
THIS TENDER AND VOTING AGREEMENT (this “Agreement”) dated March 22, 2010, among INTERSIL
CORPORATION, a Delaware corporation (“Parent”); NAVAJO MERGER SUB, INC., a Delaware corporation and
an indirect wholly-owned subsidiary of Parent (“Purchaser”); TECHWELL, INC., a Delaware corporation
(the “Company”) (only with respect to Section 6 and Section 11 hereof and as a third party
beneficiary of Section 4(f) hereof); and the undersigned stockholder of the Company
(“Stockholder”).
BACKGROUND
A. Concurrently herewith, Parent, Purchaser and the Company are entering into an Agreement and
Plan of Merger (as such agreement may hereafter be amended from time to time, the “Merger
Agreement), pursuant to which Purchaser will be merged with and into the Company (the “Merger”).
B. On the terms and subject to the conditions set forth in the Merger Agreement, Purchaser has
agreed to commence an offer to purchase for cash all of the issued and outstanding shares of the
Common Stock, including all of the outstanding Shares Beneficially Owned by Stockholder.
C. As a condition and material inducement to entering into the Merger Agreement, Parent and
Purchaser have required that Stockholder agree, and Stockholder has agreed, to enter into this
Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as follows:
1. Definitions. For purposes of this Agreement:
(a) “Beneficially Own” or “Beneficial Ownership” with respect to any securities shall mean
having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a Person shall include
securities Beneficially Owned by all other Persons with whom such Person would constitute a “group”
within the meaning of Section 13(d)(3) of the Exchange Act and Rule 13d-5(b)(1) under the Exchange
Act.
(b) Capitalized terms used and not defined herein and defined in the Merger Agreement have the
respective meanings ascribed to such terms in the Merger Agreement notwithstanding any termination
of the Merger Agreement.
2. Tender of Shares.
(a) Stockholder shall validly tender or cause to be tendered to Purchaser pursuant to and in
accordance with the terms of the Offer, not later than the 5th business day after
commencement of the Offer pursuant to Section 1 of the Merger Agreement and Rule 14d-2 under the
Exchange Act, the number of outstanding shares of Company Common Stock Beneficially Owned by him,
her or it as set forth on the signature page hereto (the “Existing Shares”), and not to withdraw
the Existing Shares, or cause the Existing Shares to be withdrawn, from the Offer at any time
(except following the termination or expiration of the Offer without Purchaser purchasing all
shares of Company Common Stock tendered pursuant to the Offer in accordance with its terms). If
Stockholder acquires Beneficial Ownership of any outstanding shares of Company Common Stock after
the date hereof and prior to the termination of this Agreement, whether upon the exercise of
options, warrants or rights, the conversion or exchange of convertible or exchangeable securities,
or by means of purchase, dividend, distribution or otherwise (together with the Existing Shares,
the “Shares”; provided, that, solely for purposes of this Section 2(a), the term “Shares” shall not
include any shares of Company Common Stock that are subject of a restricted stock award if such
shares are unvested or are subject to repurchase option, risk of forfeiture or other condition on
title or ownership under any applicable restricted stock purchase agreement or other Contract with
the Company), Stockholder shall validly tender such Shares or cause such Shares to be tendered to
Purchaser pursuant to and in accordance with the Offer, not later than the 5th business
day after commencement of the Offer pursuant to Section 1 of the Merger Agreement and Rule 14d-2 of the
Exchange Act or, if acquired later than such time, on or before the 5th business day
after such acquisition but in any event prior to the Expiration Date and not withdraw such Shares,
or cause such Shares to be withdrawn, from the Offer at any time (except in accordance with the
provisions of this Agreement). Stockholder shall not withdraw any Shares so tendered unless this
Agreement is terminated or otherwise terminates in accordance with its terms under Section 7 hereof
or otherwise or the Offer is terminated or has expired without Purchaser purchasing all shares of
Company Common Stock validly tendered in the Offer and not withdrawn. Notwithstanding the
foregoing, Stockholder may decline to tender, or may withdraw, any and all of the Stockholder’s
Shares if, without the consent of Stockholder, Purchaser amends the Offer to (i) reduce the Per
Share Amount, (ii) reduce the number of shares of Company Common Stock subject to the Offer, (iii)
change the form of consideration payable in the Offer or (iv) amend or modify any term or condition
of the Offer or the Merger Agreement in a manner adverse to Stockholder (other than insignificant
changes or amendments or other than to waive any condition other than the Minimum Condition which
the parties agree cannot be waived or reduced). Stockholder shall give Purchaser at least two (2)
business days’ prior notice of any withdrawal of its Shares pursuant to the immediately preceding
proviso (or such shorter time as may be necessary in order to permit Stockholder to validly
exercise its withdrawal rights hereunder).
(b) Stockholder hereby acknowledges and agrees that the obligation of Purchaser to accept for
payment and pay for any Shares in the Offer, including the Shares Beneficially Owned by
Stockholder, shall be subject to the terms and conditions of the Offer.
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(c) Parent and Purchaser shall return to Stockholder all materials tendered by Stockholder to
Purchaser promptly after the termination or expiration of the Offer without Purchaser purchasing
all Shares of Company Common Stock tendered pursuant to the Offer in accordance with its terms.
(d) Stockholder hereby agrees to permit Parent and Purchaser to publish and disclose in the
Offer Documents, and, if the approval of the Company’s stockholders is required under applicable
Legal Requirements, the Proxy Statement (including all documents and schedules filed with the SEC),
his, her or its identity and ownership of Company Common Stock and the nature of his, her or its
obligations, commitments, arrangements and understandings under this Agreement. Parent, Purchaser
and the Company each hereby agrees to permit Stockholder to publish and disclose its identity, the
nature of its obligations, commitments, arrangements and understandings under this Agreement and
any other information, in each case that Stockholder reasonably determines is required to be
disclosed by applicable Legal Requirements (including in any Statement on Schedule 13D or 13G or
amendments thereto).
3. Provisions Concerning Company Common Stock.
(a) Except as otherwise agreed to in writing by Parent in advance, during the term of this
Agreement, the Stockholder irrevocably agrees to vote (or cause to be voted) the Shares, whether
issued, heretofore owned or hereafter acquired, at any meeting of the holders of Company Common
Stock, however called, or in connection with any written consent of the holders of Company Common
Stock: (i) in favor of the adoption of the Merger Agreement and the approval of the terms thereof,
the approval of the Merger and each of the other actions contemplated by the Merger Agreement and
this Agreement and any actions required in furtherance thereof and hereof; (ii) against the
following actions, agreements or transactions (other than the Merger, and the transactions
contemplated by the Merger Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or any of its
Subsidiaries, (B) a sale, lease or transfer of a material amount of assets of the Company or any of
its Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation of the Company
or any of its Subsidiaries, (C) (1) any change in a majority of the persons who constitute the
Company Board, (2) any change in the present capitalization of the Company or any amendment of the
Organizational Documents of the Company, (3) any other material change in the Company’s corporate
structure or business, or (4) any other action requiring the approval of the Company’s Common
Stockholders which, in the case of each of the matters referred to in clauses (C) (1), (2) or (3),
is intended or could reasonably be expected to impede, interfere with, delay, postpone, discourage,
frustrate the purpose of or adversely affect the Merger or the other transactions contemplated by
this Agreement and the Merger Agreement. Stockholder shall not enter into any Contract with any
Person, the effect of which would reasonably be expected to be inconsistent with or violative of
the provisions and agreements contained in this Section 3.
(b) Stockholder hereby irrevocably appoints Parent and each of its executive officers, in
their capacities as officers of Parent, and any of them (the
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“Grantees”), as Stockholder’s proxy and attorney-in-fact (with full power of substitution and re-substitution), for and in the name,
place and stead of Stockholder, to vote the Shares or grant a consent or approval or dissent or
disapproval in respect of such Shares in accordance with the express provisions of Section 3(a)
hereof and in the discretion of the Grantees on any adjournment proposal as shall properly be
presented at any meeting of stockholders of the Company at which any of the matters expressly
described in Section 3(a) hereof is to be considered and at any adjournment or postponement
thereof. Stockholder represents that any proxies granting the authority to vote heretofore given in
respect of the Shares that may still be in effect are not irrevocable, and such proxies are hereby
revoked. Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(b) is
given in connection with the execution of the Merger Agreement, that such irrevocable proxy is
given to secure the performance of the duties of Stockholder under this Agreement and that such
irrevocable proxy is coupled with an interest and may under no circumstances be revoked prior to
termination of this Agreement in accordance with Section 7. Stockholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of
Section 212 of the General Corporation Law of the State of Delaware. Notwithstanding this Section
3(b), the proxy granted by Stockholder shall be revoked upon termination of this Agreement in
accordance with its terms. The Grantees may not exercise this irrevocable proxy on any other matter
except as expressly provided above. Stockholder shall retain at all times the right to vote the
Shares in Stockholder’s sole discretion and without any other limitation on all matters other than
those expressly set forth in Section 3(a) that are at any time or from time to time presented for
consideration to the Company’s stockholders generally. Parent may terminate this proxy with respect
to Stockholder at any time at its sole election by written notice provided to Stockholder. If
Stockholder is not the record owner of all the Shares, the Stockholder shall cause the record owner
thereof to execute and grant an irrevocable proxy conforming to the above provisions of this
Section 3(b).
(c) Nothing contained in this Agreement shall in any way restrict or limit Stockholder from
taking (or omitting to take) any action in his or her capacity as a director or officer of the
Company or otherwise fulfilling his or her fiduciary obligations as a director or officer of the
Company. For the avoidance of doubt, to the extent that an affiliate of Stockholder serves on the
Company Board nothing contained in this Agreement shall in any way restrict or limit such affiliate
of Stockholder serving on the Company Board from taking (or omitting to take) any action in his or
her capacity as a director of the Company or otherwise fulfilling his or her fiduciary obligations
as a director of the Company.
4. Other Covenants, Representations and Warranties. As of the date of this Agreement,
Stockholder hereby represents, warrants, covenants and agrees as follows:
(a) Ownership of Shares. Stockholder is either (i) the record and Beneficial Owner of, or
(ii) the Beneficial Owner but not the record holder of the Shares set forth on the signature page
hereto. On the date hereof, the Existing Shares set forth on the signature page hereto constitute
all of the outstanding Shares owned of record or knowingly Beneficially Owned by Stockholder.
Stockholder has good, valid and
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marketable title to the Existing Shares and, immediately prior to the transfer of Shares
to Purchaser in the Offer, will have good, valid and marketable title to the Shares, in each case,
free and clear of all Encumbrances (other than Encumbrances created by the Merger Agreement or this
Agreement and other than restrictions on transfer under applicable securities laws). Without
limiting the foregoing, Stockholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Section 2 and Section 3 hereof, sole power of disposition, sole
power of conversion, sole power to demand appraisal rights and sole power to enter into and perform
all of his, her or its obligations under this Agreement, in each case, with respect to all of the
Existing Shares set forth on the signature page hereto, with no limitations, qualifications or
restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the full legal capacity, power and
authority to enter into and perform all of Stockholder’s obligations under this Agreement. The
execution, delivery and performance of this Agreement by Stockholder will not violate any other
agreement to which Stockholder is a party, including any voting agreement, stockholders agreement
or voting trust. This Agreement has been duly and validly executed and delivered by Stockholder and
constitutes a valid and binding agreement of Stockholder, enforceable against Stockholder in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other
laws relating to creditors’ rights and to general principles of equity. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which Stockholder is trustee
whose consent is required for the execution and delivery of this Agreement or the consummation by
Stockholder of the transactions contemplated hereby. If Stockholder is married and Stockholder’s
Shares constitute community property, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, Stockholder’s spouse, enforceable
against such person in accordance with its terms.
(c) No Conflicts. Except for filings under the HSR Act or any other Antitrust Laws, if
applicable, (i) no filing with, and no permit, authorization, consent or approval of, any state or
federal public body or authority is necessary for the execution of this Agreement by Stockholder
and the consummation by Stockholder of the transactions contemplated hereby, and (ii) none of the
execution and delivery of this Agreement by Stockholder, the consummation by Stockholder of the
transactions contemplated hereby or compliance by Stockholder with any of the provisions hereof
shall (A) conflict with or result in any breach of any applicable organizational documents of
Stockholder, if any, (B) result in a violation or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms, conditions or
provisions of any Contract or other instrument or obligation of any kind to which Stockholder is a
party or by which Stockholder or any of Stockholder’s properties or assets may be bound, or (C)
violate any Legal Requirements or Governmental Authorizations applicable to Stockholder or any of
Stockholder’s properties or assets.
(d) No Encumbrances. Except as applicable in connection with the transactions
contemplated by Section 2 hereof, Stockholder’s Shares and any certificates
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representing such Shares are now, and at all times during the term of this Agreement will be, held by Stockholder, or
by a nominee or custodian for the benefit of Stockholder, free and clear of all Encumbrances,
proxies, voting trusts or agreements, understandings or arrangements, except for any such
Encumbrances, proxies, voting trusts or agreements, understandings or arrangements arising
hereunder.
(e) No Finder’s Fees. No broker, investment banker, financial adviser or other Person
is entitled to any broker’s, finder’s, financial adviser’s or other similar fee or commission from
Parent, Purchaser or the Company in connection with the transactions contemplated hereby based upon
arrangements made by Stockholder.
(f) No Solicitation. Except and only to the extent that the Company and its
Representatives would be expressly permitted to do so under Section 6.1 of the Merger Agreement,
Stockholder shall not solicit, initiate, or knowingly or intentionally encourage or facilitate any
inquiry, offer or proposal that constitutes, or would reasonably be expected to lead to, any
Acquisition Proposal, or, 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 or attempt by any Person with respect to, or otherwise knowingly or
intentionally cooperate in any way with, any Acquisition Proposal. If Stockholder receives any such
inquiry, offer or proposal, then Stockholder shall promptly advise the Company of the existence
thereof. Stockholder will immediately cease any existing discussions or negotiations with any
Person (other than Parent and its affiliates) conducted by Stockholder heretofore with respect to
any Acquisition Proposal.
(g) Restrictions on Transfer, Proxies and Non-interference. Except as applicable in
connection with the transactions contemplated by Section 2 hereof, Stockholder shall not, directly
or indirectly: (i) except (A) as contemplated by this Agreement, and (B) for transfers to
Stockholder’s family or trusts established for the benefit of members of Stockholder’s family
(provided that the transferee of such shares agrees in writing to be bound by the terms hereof in
form and substance satisfactory to Parent), offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any Contract or other arrangement or
understanding with respect to, or consent to the offer for sale, sale, transfer, trade, pledge,
encumbrance, assignment or other disposition of, any or all of the Shares or any interest therein;
(ii) except as contemplated by this Agreement, grant any proxies or powers of attorney, deposit any
Shares into a voting trust or enter into a voting agreement with respect to any Shares; or (iii)
take any action that would make any representation or warranty of Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling Stockholder from performing
Stockholder’s obligations under this Agreement.
(h) Waiver of Appraisal Rights. Stockholder hereby waives any rights of appraisal in
connection with, or rights to dissent from, the Merger that Stockholder may have.
(i) Reliance on Agreement. Stockholder understands and acknowledges that Parent is
entering into, and causing Purchaser to enter into, the Merger
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Agreement in reliance upon Stockholder’s execution and delivery of this Agreement and acknowledges that this Agreement is
granted in consideration for the execution and delivery of the Merger Agreement by Parent and
Purchaser.
(j) Absence of Litigation. As of the date hereof, there is no Legal Proceeding
pending against, or, to the knowledge of Stockholder, threatened against or otherwise affecting,
Stockholder or any of its or his properties or assets (including such Stockholder’s Shares) that
could reasonably be expected to impair in any material respect the ability of Stockholder to
perform its or his obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
5. Parent and Purchaser Representations and Warranties. As of the date of this
Agreement, Parent and Purchaser each hereby represent and warrant as follows:
(a) Power; Binding Agreement. Parent and Purchaser each is a corporation duly
organized and validly existing under the laws of the State of Delaware. Parent and Purchaser each
have the full legal capacity, power and authority to enter into and perform all of Parent’s and
Purchaser’s respective obligations under this Agreement. The execution, delivery and performance of
this Agreement by Parent and Purchaser will not violate any other agreement to which Parent or
Purchaser is a party. This Agreement has been duly and validly executed and delivered by each of
Parent and Purchaser and constitutes a valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization and other laws relating to creditors’ rights and to general principles of equity.
(b) No Conflicts. Except for filings under the HSR Act or any other Antitrust Laws, if
applicable, (i) no filing with, and no permit, authorization, consent or approval of, any state or
federal public body or authority is necessary for the execution of this Agreement by Parent and
Purchaser and the consummation by Parent or Purchaser of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by Parent and Purchaser, the consummation
by Parent and Purchaser of the transactions contemplated hereby or compliance by Parent and
Purchaser with any of the provisions hereof shall (A) conflict with or result in a breach of any
applicable organizational documents of Parent or Purchaser, if any, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise
to any third party right of termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any Contract or other instrument or obligation of any
kind to which Parent or Purchaser is a party or by which Parent or Purchaser or any of their
respective material properties or assets may be bound, or (C) violate any Legal Requirements or
Government Authorizations applicable to Parent or Purchaser or any of Parent’s or Purchaser’s
respective material properties or assets.
6. No Transfer Requests. Stockholder covenants and agrees that Stockholder shall not
request that the Company, and the Company shall not, register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of
Stockholder’s Shares, unless such transfer is made in compliance with this Agreement
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(including the provisions of Section 2 and Section 4(g) hereof). In the event of a stock dividend or distribution,
or any change in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term “Shares” shall be deemed to
refer to and include the Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Shares may be changed or exchanged. While this
Agreement is in effect, Stockholder will notify Parent promptly (and in any event within two
business days after the acquisition thereof) if Stockholder acquires legal or Beneficial Ownership
of any Shares after the date of this Agreement. Each stock certificate evidencing Shares that is
issued in the name of Stockholder on or after the date of this Agreement shall bear a legend
indicating that such Shares are subject to the terms of this Agreement and any transferee of the
Shares evidenced by the stock certificate takes the Shares subject to the terms of this Agreement.
7. Termination. The covenants and agreements contained herein shall terminate upon the
earliest of (i) the Effective Time (except for Section 4(h) hereof, which shall continue in effect
after the Effective Time), (ii) the mutual written agreement of Parent and Stockholder, (iii) the
termination of the Offer prior to the Acceptance Date, (iv) the termination of the Merger Agreement
in accordance with its terms, (v) the occurrence of any of the events described in the penultimate
sentence of Section 2(a) permitting Stockholder to decline to tender or withdraw its Shares and
(vi) the date that is six months after the date hereof; provided, however, that (i) nothing herein
shall relieve any party from liability for any material breach of this Agreement prior to such
termination, and (ii) this Section 7, Section 3(c) and Section 11 shall survive any termination of
this Agreement.
8. Stockholder Capacity. No Person executing this Agreement who is or becomes during
the term hereof a director of the Company makes any agreement or understanding herein in his or her
capacity as such director. Stockholder is signing this Agreement solely in his or her capacity as
the record and Beneficial Owner of, or the trustee of a trust whose beneficiaries are the
Beneficial Owners of, Shares.
9. Confidentiality. Stockholder recognizes that successful consummation of the
transactions contemplated by this Agreement may be dependent upon confidentiality with respect to
the matters referred to herein. In this connection, pending public disclosure thereof and subject
to Section 2(d) of this Agreement, Stockholder hereby agrees not to disclose or discuss such
matters with anyone not a party to this Agreement (other than Stockholder’s officers, directors,
members, affiliates, current or prospective limited partners, consultants, agents, representatives,
counsel and advisors, if any) without the prior written consent of Parent, except for disclosures
permitted by the Merger Agreement, filings required pursuant to the Exchange Act and the rules and
regulations thereunder or disclosures Stockholder’s counsel advises are necessary in order to
fulfill Stockholder’s obligations imposed by applicable Legal Requirements, in which event
Stockholder shall, to the extent legally permitted, give notice of such disclosure to Parent as promptly as practicable so as to enable Parent to seek a protective
order from a court of competent jurisdiction with respect thereto.
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10. Notices of Certain Events. Stockholder shall notify Parent of any development
occurring after the date hereof that it becomes aware that causes, or that would reasonably be
expected to cause, any breach of any of Stockholder’s representations or warranties in this
Agreement that, as a result of such breach, would reasonably be expected to impair in any material
respect the ability of Stockholder to perform its or his obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
11. Miscellaneous.
(a) Certain Events. Stockholder agrees that during the term of this Agreement, this
Agreement and the obligations hereunder shall attach to Stockholder’s Shares and shall be binding
upon any Person to which legal or Beneficial Ownership of such Shares shall pass, whether by
operation of law or otherwise, including Stockholder’s heirs, guardians, administrators or
successors. Notwithstanding any transfer of Shares, the transferor shall remain liable for the
performance of all obligations of the transferor (if any) under this Agreement.
(b) Amendments. This Agreement may not be amended, changed, supplemented, waived or
otherwise modified or terminated, except upon the execution and delivery of a written agreement
executed by Parent, Purchaser, Stockholder and, if creating or changing obligations of the Company,
the Company.
(c) Remedies Cumulative; Waiver. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither any failure nor any delay by any party in
exercising any right, power or privilege under this Agreement or any of the documents referred to
in this Agreement will operate as a waiver of such right, power or privilege and no single or
partial exercise of any such right, power or privilege will preclude any other or further exercise
of such right, power or privilege or the exercise of any other right, power or privilege. To the
maximum extent permitted by applicable Legal Requirements, (i) no waiver that may be given by a
party will be applicable except in the specific instance for which it is given; and (ii) no notice
to or demand on one party will be deemed to be a waiver of any obligation of that party or of the
right of the party giving such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
(d) Entire Agreement. This Agreement, together with the other documents referred to
herein, constitutes the entire agreement among the parties to this Agreement with respect to the
subject matter hereof and supersedes all other prior agreements and understandings, both written
and oral, between any of the parties with respect to the subject matter hereof.
(e) Execution of Agreement; Counterparts; Electronic Signatures. This Agreement may be
executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument, and shall become
effective when counterparts have been signed by each of the parties and delivered to the other
parties; it being understood that all parties need not sign the same counterpart. The
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exchange of copies of this Agreement and of signature pages by facsimile transmission (whether directly from
one facsimile device to another by means of a dial-up connection or whether mediated by the
worldwide web), by electronic mail in “portable document format” (“.pdf”) form, or by any other
electronic means intended to preserve the original graphic and pictorial appearance of a document,
or by a combination of such means, shall constitute effective execution and delivery of this
Agreement as to the parties and may be used in lieu of an original Agreement for all purposes.
Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures
for all purposes. Notwithstanding the Electronic Signatures in Global and National Commerce Act (15
U.S.C. Sec. 7001 et seq.), the Uniform Electronic Transactions Act, or any other Legal Requirement
relating to or enabling the creation, execution, delivery, or recordation of any contract or
signature by electronic means, and notwithstanding any course of conduct engaged in by the parties,
no party shall be deemed to have executed this Agreement or any other document contemplated by this
Agreement (including any amendment or other change thereto) unless and until such party shall have
executed this Agreement or such document on paper by a handwritten original signature or any other
symbol executed or adopted by a party with current intention to authenticate this Agreement or such
other document contemplated.
(f) Governing Law; Jurisdiction. 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) Consent to Jurisdiction; Venue. In any action or proceeding between any of the
parties arising out of or relating to this Agreement or any of the transactions contemplated by
this Agreement, each of the parties: (a) irrevocably and unconditionally consents and submits to
the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware; (b) agrees
that all claims in respect of such action or proceeding may be heard and determined exclusively in
the Court of Chancery of the State of Delaware; (c) waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the laying of venue of
any such action or proceeding in the Court of Chancery of the State of Delaware; and (d) waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in the Court of Chancery of the State of Delaware. Each of the parties
hereto agrees that a final judgment in any such action or proceeding may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Each party to this
Agreement irrevocably consents to service of process in the manner provided for notices in Section
11(k). Nothing in this Agreement shall affect the right of any party to this Agreement to serve
process in any other manner permitted by Legal Requirements.
(h) Waiver of Jury Trial. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
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(i) Assignment. This Agreement shall not be assigned by any of the parties, by
operation of law or otherwise, without the prior written consent of all of the other parties to
this Agreement; provided, that Parent may assign, its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of Parent, but no such assignment shall relieve Parent
of its obligations hereunder if such assignee does not perform such obligations.
(j) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person (other than the parties hereto) any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
(k) Notices. All notices, Consents, waivers and other communications required or
delivered to the appropriate address by hand or by nationally recognized overnight courier service
(costs prepaid); or (b) sent by facsimile with confirmation of transmission by the transmitting
equipment confirmed with a copy delivered as provided in clause (a), in each case to the following
addresses or facsimile numbers and marked to the attention of the person (by name or title)
designated below (or to such other address, facsimile number, or person as a party may designate by
notice to the other parties):
If to Stockholder, to the address set forth on the signature pages hereto.
If to Parent or Purchaser:
Intersil Corporation
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 0
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Senior Vice President and General Counsel
Fax No.: (000) 000-0000
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 0
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Senior Vice President and General Counsel
Fax No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Dechert LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
Fax: (000) 000-0000
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
Fax: (000) 000-0000
If to the Company:
Techwell, Inc.
000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Fumihiro Kozato, President and Chief Executive Officer
Fax: (000) 000-0000
000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Fumihiro Kozato, President and Chief Executive Officer
Fax: (000) 000-0000
11
With a copy (which shall not constitute notice) to:
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. del Xxxxx
Fax: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. del Xxxxx
Fax: (000) 000-0000
(l) Headings. The headings contained in this Agreement are for convenience of
reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in
connection with the construction or interpretation of this Agreement.
(m) Enforcement. Stockholder acknowledges and agrees that Parent and Purchaser may be
irreparably damaged if any of the provisions of this Agreement are not performed in accordance with
their specific terms and that any breach of this Agreement by Stockholder may not be adequately
compensated by monetary damages alone. Accordingly, in addition to any other right or remedy to
which Parent or Purchaser may be entitled, at law or in equity, each shall be entitled to enforce
any provision of this Agreement by a decree of specific performance and temporary, preliminary and
permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of
this Agreement, without posting any bond or other undertaking.
(n) Severability. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement will remain in full
force and effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.
(o) Further Assurances. From time to time, at any party’s request and without further
consideration, each party hereto shall execute and deliver such additional documents and take all
such further lawful action as may be reasonably necessary or desirable to comply with such party’s
obligations under this Agreement in the most expeditious manner reasonably practicable.
[Signature page follows.]
12
IN WITNESS WHEREOF, Parent, Purchaser, Stockholder and the Company have caused this Agreement
to be duly executed as of the day and year first above written.
| PARENT: | STOCKHOLDER: | |||||
| INTERSIL CORPORATION | ||||||
By:
|
||||||
| Name: | Name: | |||||
| Title: | ||||||
| Address: | ||||||
| PURCHASER: | ||||||
| NAVAJO MERGER SUB, INC. | ||||||
By: |
||||||
| Name: | ||||||
| Title: | ||||||
| COMPANY: | ||||||
| TECHWELL, INC. | Shares Beneficially Owned by Stockholder | |||||
By:
|
shares of Company Common Stock | |||||
| Name: | shares subject to Company Options | |||||
| Title: | ||||||
13
