EXHIBIT 3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of March 2, 1998 (this "Voting
Agreement") by and among Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, X.X. Xxxxx,
Xxxxxx X. Xxxx, Xxxxxxxx Xxxxxxx, Xxxx Xxxxx and Xxxxxxx X. Xxxxxx (the
"Stockholders"), and Unitrode Corporation, a Maryland corporation
("Acquiror").
WHEREAS, BENCHMARQ Microelectronics, Inc., a Delaware corporation,
Acquiror and Merrimack Corporation, a Delaware corporation and a wholly
owned subsidiary of Acquiror ("Newco"), have contemporaneously with the
execution of this Voting Agreement, entered into an Agreement and Plan of
Merger dated March 2, 1998 (the "Merger Agreement") which provides, among
other things, that Newco shall be merged (the "Merger")with and into the
Company pursuant to the terms and conditions thereof;
WHEREAS, as an essential condition and inducement to Acquiror to
enter into the Merger Agreement and in consideration therefor, the
undersigned Stockholders have agreed to enter into this Voting Agreement;
and
WHEREAS, as of the date hereof, the Stockholders own of record and
beneficially the shares of common stock, par value $.001 per share, of
the Company (the "Company Common Stock") set forth opposite their
respective names on Schedule A hereto and wish to enter into this
Agreement with respect to such shares of Company Common Stock and the
options to purchase shares of Company Common Stock ("Options");
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and in the Merger Agreement,
and intending to be legally bound hereby, the parties hereto hereby agree
as follows:
ARTICLE I
Voting of Shares
Section 1.1 Voting Agreement. Each Stockholder hereby agrees to:
(a) appear, or cause the holder of record on the applicable record date
(the "Record Holder") to appear for the purpose of obtaining a quorum at
any annual or special meeting of stockholders of the Company and at any
adjournment thereof; (b) vote, or cause the Record Holder to vote, in
person or by proxy, at every meeting of the stockholders of the Company
at which such matters are considered and at every adjournment thereof,
all of the shares of the Company Common Stock owned or with respect to
which such Stockholder has or shares voting power or control and all of
the shares of Company Common Stock which shall, or with respect to which
voting power or control shall, hereafter be acquired by such Stockholder
(collectively, the "Shares") in favor the Merger, the Merger Agreement
and the transactions contemplated by the Merger Agreement; and (c) vote,
or cause the Record Holder to vote, in person or by proxy, at every
meeting of the stockholders of the Company at which such matters are
considered and at every adjournment thereof, such Stockholder's Shares
against any action, proposal or agreement that could reasonably be
expected to result, directly or indirectly, in a breach in any material
respect of any covenant, representation or warranty or any other
obligation of the Company under the Merger Agreement or the Stock Option
Agreement dated March 2, 1998 between the Company and Acquiror (the
"Option Agreement"), or which could reasonably be expected to result in
any of the conditions to the Company's obligations under the Merger
Agreement or the Option Agreement not being fulfilled.
Section 1.2 No Ownership Interest. Nothing contained in this Voting
Agreement shall be deemed to vest in Acquiror any direct or indirect
ownership or incidence of ownership of or with respect to any Shares. All
rights, ownership, and economic benefits of and relating to the Shares or
Options shall remain and belong to the Stockholders, and Acquiror shall
have no authority to manage, direct, superintend, restrict, regulate,
govern, or administer any of the policies or operations of the Company or
exercise any power or authority to direct the Stockholders in the voting
of any of the Shares, except as otherwise provided herein, or the
performance of the Stockholders' duties or responsibilities as
stockholders of the Company.
Section 1.3 Evaluation of Investment. Each Stockholder, by reason
of its knowledge and experience in financial and business matters,
believes itself capable of evaluating the merits and risks of the
investment in shares of common stock, par value $.01 per share, of
Acquiror ("Acquiror Common Stock"), contemplated by the Merger Agreement.
Section 1.4 Documents Delivered. Each Stockholder acknowledges
receipt of copies of the following documents:
(a) the Merger Agreement and all Annexes thereto;
(b) the Option Agreement;
(c) Acquiror's 1996 Annual Report (including Annual Report
on Form 10-K for the year ended January 31, 1996);
(d) Acquiror's Proxy Statement dated for the stockholders
meeting dated June 2, 1997; and
(e) Acquiror's Quarterly Report for the quarter ended
November 1, 1997 (including Report on Form 10-Q).
Section 1.5 No Inconsistent Agreements. Each Stockholder hereby
covenants and agrees that, except as contemplated by this Voting
Agreement and the Merger Agreement, the Stockholder (a) has not entered,
and shall not enter at any time while this Voting Agreement remains in
effect into any voting agreement and (b) has not granted, and shall not
grant at any time while this Voting Agreement remains in effect, a proxy
or power of attorney, in either case which is inconsistent with this
Agreement.
ARTICLE II
Restrictions on Transfer
Section 2.1 Transfer of Title.
(a) Each Stockholder hereby covenants and agrees that such
Stockholder will not, prior to the termination of this Voting Agreement,
either directly or indirectly, offer or otherwise agree to sell, assign,
pledge, hypothecate, transfer, exchange, or dispose of any Shares or
Options or any other securities or rights convertible into or
exchangeable for shares of Company Common Stock, owned either directly or
indirectly by such Stockholder or with respect to which such Stockholder
has the power of disposition, whether now or hereafter acquired, without
the prior written consent of Acquiror (provided nothing contained herein
will be deemed to restrict the exercise of Options).
(b) Each Stockholder hereby agrees and consents to the entry
of stop transfer instructions with the Company against the transfer of
any Shares consistent with the terms of Section 2.1(a) hereof.
ARTICLE III
Representations and Warranties
of the Stockholders
Each Stockholder hereby severally represents and warrants to
Acquiror as follows:
Section 3.1 Authority Relative to This Agreement. Such Stockholder
is competent to execute and deliver this Voting Agreement, to perform it
obligations hereunder and to consummate the transactions contemplated
hereby. This Voting Agreement has been duly and validly executed and
delivered by such Stockholder and, assuming the due authorization,
execution and delivery by Acquiror, constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms except that (i) the
enforceability thereof may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereinafter in effect affecting
creditors' rights generally and (ii) the availability of the remedy of
specific performance or injunctive or other forms of equitable relief may
be subject to equitable defenses and would be subject to the discretion
of the court before which any proceeding therefor may be brought.
Section 3.2 No Conflict. The execution and delivery of this Voting
Agreement by such Stockholder does not, and the performance of this
Voting Agreement by such Stockholder shall not result in any breach of or
constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance, on any of the Shares or Options
pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which such Stockholder is a party or by which such Stockholder or the
Shares or Options are bound or affected.
Section 3.3 Title to the Shares. The Shares and Options held by
such Stockholder are owned free and clear of all security interests,
liens, claims, pledges, options, rights of first refusal, agreements,
limitations on such Stockholder's voting rights, charges and other
encumbrances of any nature whatsoever and such Stockholder has not
appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Shares.
ARTICLE IV
Miscellaneous
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Merger Agreement in
accordance with its terms or (b) the Effective Time (as defined in the
Merger Agreement). Upon such termination, no party shall have any further
obligations or liabilities hereunder, provided that no such termination
shall relieve any party from liability for any breach of this Agreement
prior to such termination.
Section 4.2 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of
this Voting Agreement were not performance in accordance with its
specified 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 Voting Agreement and to specific performance of the
terms and provisions hereof in addition to any other remedy to which they
are entitled at law or in equity.
Section 4.3 Successors and Affiliates. This Voting Agreement shall
inure to the benefit of and shall be binding upon the parties hereto and
their respective heirs, legal representatives and assigns. If any
Stockholder shall at any time hereafter acquire ownership of, or voting
power with respect to, any additional Shares in any manner, whether by
the exercise of any Options or any securities or rights convertible into
or exchangeable for shares of Company Common Stock, operation of law or
otherwise, such Shares shall be held subject to all of the terms and
provisions of this Voting Agreement. Without limiting the foregoing, each
Stockholder specifically agrees that the obligations of such Stockholder
hereunder shall not be terminated by operation of law, whether by death
or incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Voting Agreement constitutes the
entire agreement among Acquiror and the Stockholders with respect to the
subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, among Acquiror and the
Stockholders with respect to the subject matter hereof.
Section 4.5 Captions and Counterparts. The captions in this Voting
Agreement are for convenience only and shall not be considered a part of
or affect the construction of interpretation of any provision of this
Voting Agreement. This Voting Agreement may be executed in several
counterparts, each of which shall constitute one in the same instrument.
Section 4.6 Amendment. This Voting Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
Section 4.7 Waivers. Except as provided in this Voting Agreement,
no action taken pursuant to this Voting Agreement, including without
limitation any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Voting Agreement. The wavier by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a
wavier of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.8 Severability. If any term of other provision of this
Voting Agreement is invalid, illegal or incapable of being enforced by
any rule of law, or public policy, all other conditions and provisions of
this Voting Agreement shall nevertheless remain in full force and effect.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Voting Agreement so as to effect
the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in a mutually acceptable manner in
order that the terms of this Voting Agreement remain as originally
contemplated to the fullest extent possible.
Section 4.9 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been
duly given or made and shall be effective upon receipt, if delivered
personally, mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like changes
of address) or sent by electronic transmission (provided that a
confirmation copy is sent by another approved means) to the telecopier
number specified below:
If to a Stockholder:
c/o Benchmarq Microelctronics, Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to Acquiror:
Unitrode Corporation
0 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Section 4.10 Governing Law. This Voting 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.
Section 4.11 Definitions. Capitalized terms used and not defined
herein shall have the meaning set forth in the Merger Agreement.
Section 4.12 Obligations of Stockholders. The obligations of the
Stockholders hereunder shall be "several" and not (i) "joint" or (ii)
"joint and several." Without limiting the generality of the foregoing,
under no circumstances will any Stockholder have any liability or
obligation with respect to any misrepresentation or breach of covenant of
any other Stockholder.
Section 4.13 Officers and Directors. No person who is or becomes
(during the term hereof) a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director
or officer, and nothing herein will limit or affect any actions taken by
any Stockholder in his or her capacity as an officer or director of the
Company in exercising its rights under the Merger Agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Voting Agreement to be duly executed as of the date first written above.
By: /s/ Xxxx X. Xxxxxxx
_________________________________
Name: Xxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxxx
_________________________________
Name: Xxxxxxx X. Xxxxx
By: /s/ X. X. Xxxxx
_________________________________
Name: X. X. Xxxxx
By: /s/ Xxxxxx X. Xxxx
_________________________________
Name: Xxxxxx X. Xxxx
By: /s/ Xxxxxxxx Xxxxxxx
_________________________________
Name: Xxxxxxxx Xxxxxxx
By: /s/ Xxxx Xxxxx
_________________________________
Name: Xxxx Xxxxx
By: /s/ Xxxxxxx X. Xxxxxx
_________________________________
Name: Xxxxxxx X. Xxxxxx
UNITRODE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief
Executive Officer
VOTING AGREEMENT
SCHEDULE A
Number of Shares of Company Common
Stockholder: Stock Owned by Stockholder:
------------ ---------------------------
X.X. Xxxxx 695,120
Xxxx Xxxxx 6,250
Xxxxxxx X. Xxxxx 72,755
Xxxxxxxx Xxxxxxx 602,212
Xxxxxx X. Xxxx 43,850
Xxxxxxx X. Xxxxxx 40,422
Xxxx X. Xxxxxxx 0
