FORM OF SUPPORT AGREEMENT
Exhibit
2.2
FORM
OF SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this
“Agreement”),
dated as of December 5, 2009, is by and between IXYS Corporation, a Delaware
corporation (“Parent”) and the
individual set forth on Schedule A hereto
(the “Stockholder”).
WHEREAS, as of the date
hereof, the Stockholder is the holder of the number of shares of common stock,
par value $0.01 per share (“Common Stock”), of
Zilog, Inc., a Delaware corporation (the “Company”), set forth
opposite the Stockholder’s name on Schedule A (all such
shares set forth on Schedule A, together
with any shares of Common Stock of the Company that are hereafter issued to or
otherwise acquired or owned by the Stockholder prior to the termination of this
Agreement being referred to herein as the “Subject
Shares”);
WHEREAS, Parent, Zanzibar
Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent (“Merger
Sub”), and the Company propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the “Merger Agreement”),
which provides, among other things, for the merger of Merger Sub with and into
the Company, with the Company continuing as the surviving corporation (the
“Merger”), upon
the terms and subject to the conditions set forth in the Merger Agreement
(capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Merger Agreement);
and
WHEREAS, as a condition to its
willingness to enter into the Merger Agreement, Parent has required that the
Stockholder, and as an inducement and in consideration therefor, the Stockholder
(in the Stockholder’s capacity as a holder of the Subject Shares) has agreed to,
enter into this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the respective representations, warranties,
covenants and agreements set forth below and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as
follows:
ARTICLE
I
VOTING
AGREEMENT; GRANT OF PROXY
The
Stockholder hereby covenants and agrees that:
1.1. Voting of
Subject Shares. At every meeting of the holders of Company
Common Stock (the “Company
Stockholders”) called, and at every adjournment or postponement thereof,
the Stockholder shall, or shall cause the holder of record on any applicable
record date to, vote the Stockholder’s Subject Shares (i) in favor of (A)
adoption of the Merger Agreement and (B) approval of any proposal to adjourn or
postpone the meeting to a later date, if there are not sufficient votes for the
adoption of the Merger Agreement on the date on which such meeting is held; (ii)
against any Acquisition Proposal; and (iii) in favor of any other matter
necessary for consummation of the transactions contemplated by the Merger
Agreement, which is considered at any such meeting of the Company Stockholders,
and in connection therewith to execute any documents reasonably requested by
Parent that are necessary or appropriate in order to effectuate the
foregoing.
1.2. No
Inconsistent Arrangements. Except as provided hereunder or under the
Merger Agreement, the Stockholder shall not, directly or indirectly,
(i) create any Encumbrance other than restrictions imposed by applicable
Legal Requirement or pursuant to this Agreement on any Subject
Shares,
(ii) transfer, sell, assign, gift or otherwise dispose of (collectively,
“Transfer”), or
enter into any contract with respect to any Transfer of the Subject Shares or
any interest therein, (iii) grant or permit the grant of any proxy, power
of attorney or other authorization in or with respect to the Subject Shares,
(iv) deposit or permit the deposit of the Subject Shares into a voting
trust or enter into a voting agreement or arrangement with respect to the
Subject Shares, or (v) take or permit any other action that would in any
way restrict, limit or interfere with the performance of the Stockholder's
obligations hereunder or the transactions contemplated hereby or otherwise make
any representation or warranty of the Stockholder herein untrue or
incorrect. Notwithstanding the foregoing, the Stockholder may make
Transfers of Subject Shares by will, operation of law, Transfers for estate
planning purposes or Transfers for charitable purposes or as charitable gifts or
donations, in which case the Subject Shares shall continue to be bound by this
Agreement and provided that each transferee agrees in writing to be bound by the
terms and conditions of this Agreement.
1.3. No
Exercise of Appraisal Rights. The Stockholder agrees not to exercise any
appraisal rights or dissenter’s rights in respect of the Stockholder’s Subject
Shares that may arise with respect to the Merger.
1.4. Documentation
and Information. The Stockholder shall permit and hereby authorizes
Parent to publish and disclose in all documents and schedules filed with the
SEC, and any press release or other disclosure document that Parent reasonably
determines to be necessary in connection with the Merger and any transactions
contemplated by the Merger Agreement, the Stockholder’s identity and ownership
of the Subject Shares and the nature of the Stockholder’s commitments and
obligations under this Agreement.
1.5. Irrevocable
Proxy. The Stockholder
hereby revokes (or agrees to cause to be revoked) any proxies that the
Stockholder has heretofore granted with respect to the Subject
Shares. The Stockholder hereby irrevocably appoints Parent as
attorney-in-fact and proxy for and on behalf of the Stockholder, for and in the
name, place and stead of the Stockholder, to: (a) attend any and all
meetings of the Company Stockholders, (b) vote, express consent or dissent
or issue instructions to the record holder to vote the Stockholder’s Subject
Shares in accordance with the provisions of Section 1.1 at any and all
meetings of the Company Stockholders or in connection with any action sought to
be taken by written consent of the Company Stockholders without a meeting and
(c) grant or withhold, or issue instructions to the record holder to grant
or withhold, consistent with the provisions of Section 1.1, all written
consents with respect to the Subject Shares at any and all meetings of the
Company Stockholders or in connection with any action sought to be taken by
written consent without a meeting. Parent agrees not to exercise the
proxy granted herein for any purpose other than the purposes described in this
Agreement. The foregoing proxy shall be deemed to be a proxy coupled
with an interest, is irrevocable (and as such shall survive and not be affected
by the death, incapacity, mental illness or insanity of the Stockholder, as
applicable) until the termination of the Merger Agreement and shall not be
terminated by operation of law or upon the occurrence of any other event other
than the termination of this Agreement pursuant to Section 4.2. The
Stockholder authorizes such attorney and proxy to substitute any other Person to
act hereunder, to revoke any substitution and to file this proxy and any
substitution or revocation with the Secretary of the Company. The
Stockholder hereby affirms that the proxy set forth in this Section 1.5 is given
in connection with and granted in consideration of and as an inducement to
Parent and Merger Sub to enter into the Merger Agreement and that such proxy is
given to secure the obligations of the Stockholder under Section
1.1. The proxy set forth in this Section 1.5 is executed and intended
to be irrevocable, subject, however, to its automatic termination upon the
termination of this Agreement pursuant to Section 4.2.
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ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDERS
The
Stockholder represents and warrants to Parent that:
2.1. Authorization;
Binding Agreement. The Stockholder has full legal capacity,
right and authority to execute and deliver this Agreement and to perform his
obligations hereunder and to consummate the transactions contemplated
hereby. The Stockholder has full power and authority to execute,
deliver and perform this Agreement. This Agreement has been duly and
validly executed and delivered by the Stockholder, and constitutes a valid and
binding obligation of the Stockholder enforceable against the Stockholder in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law).
2.2. Non-Contravention.
The execution and delivery of this Agreement by the Stockholder does not, and
the performance by the Stockholder of the Stockholder's obligations hereunder
and the consummation by the Stockholder of the transactions contemplated hereby
will not, except as may be required by federal securities law, require any
consent, approval, order, authorization or other action by, or filing with or
notice to, (i) to the actual knowledge of the Stockholder, any Governmental
Body, and (ii) any other Person, constitute a default (with or without the
giving of notice or the lapse of time or both) under, or give rise to any right
of termination, cancellation or acceleration under any contract, agreement or
other instrument binding on the Stockholder or, to the actual knowledge of the
Stockholder applicable Legal Requirement, in each case, whether individually or
in the aggregate, that would reasonably be expected to prevent or materially
delay or impair the consummation by the Stockholder of the transactions
contemplated by this Agreement or otherwise negatively impact Stockholder’s
ability to perform its obligations hereunder.
2.3. Ownership
of Subject Shares; Total Shares. The Stockholder is the record or
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the
Stockholder’s Subject Shares and has good and marketable title to the Subject
Shares free and clear of any Encumbrance (including any restriction on the right
to vote or otherwise transfer the Subject Shares), except as (i) provided
hereunder, (ii) pursuant to any applicable restrictions on transfer under the
Securities Act, and (iii) subject to any risk of forfeiture with respect to any
shares of Common Stock granted to the Stockholder under an employee benefit plan
of the Company. The Subject Shares listed on Schedule A
opposite the Stockholder’s name constitute all of the shares of Common Stock of
the Company owned by the Stockholder as of the date hereof. Except
pursuant to this Agreement, no Person has any contractual or other right or
obligation to purchase or otherwise acquire any of the Stockholder’s Subject
Shares.
2.4. Voting
Power. Except as set forth on Schedule A, the
Stockholder has full voting power, with respect to the Stockholder's Subject
Shares, and full power of disposition, full power to issue instructions with
respect to the matters set forth herein and full power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Stockholder's Subject Shares. None of the Stockholder’s Subject
Shares are subject to any proxy, voting trust or other agreement or arrangement
with respect to the voting of the Subject Shares, except as provided
hereunder.
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2.5. Reliance. The
Stockholder has had the opportunity to review the Merger Agreement and this
Agreement with counsel of the Stockholder's own choosing. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder’s execution, delivery
and performance of this Agreement.
2.6 Absence
of Litigation. With respect to the Stockholder, as of the date
hereof, there is no action, suit, investigation or proceeding pending against,
or, to the knowledge of the Stockholder, threatened against, the Stockholder or
any of the Stockholder's properties or assets (including the Subject Shares)
that could reasonably be expected to prevent, delay or impair the ability of the
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby.
2.7. Finders’
Fees. No investment banker, broker, finder or other intermediary is
entitled to a fee or commission from Parent, Merger Sub or the Company in
respect of this Agreement based upon any arrangement or agreement made by or on
behalf of the Stockholder.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF PARENT AND PURCHASER
Parent
represents and warrants to the Stockholders that:
3.1. Organization;
Authorization. Parent is duly organized, validly existing and
in good standing under the laws of the State of Delaware. The
consummation of the transactions contemplated hereby are within Parent’s
corporate powers and have been duly authorized by all necessary corporate
actions on the part of Parent. Parent has full power and authority to
execute, deliver and perform this Agreement.
3.2. Binding
Agreement. This Agreement has been duly authorized, executed and
delivered by Parent, and constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law).
ARTICLE
IV
MISCELLANEOUS
4.1. Notices.
All notices, requests and other communications to either party hereunder shall
be in writing (including facsimile transmission) and shall be given, (i) if to
Parent, in accordance with the provisions of the Merger Agreement and (ii) if to
the Stockholder, to the Stockholder’s address or facsimile number set forth on a
signature page hereto, or to such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the other party
hereto.
4.2. Termination.
This Agreement shall terminate automatically, without any notice or other action
by any Person, upon the earlier of (i) the termination of the Merger
Agreement in accordance with its terms and (ii) the Effective
Time. Upon termination of this Agreement, neither party shall have
any further obligations or liabilities under this Agreement; provided, however,
that (x) nothing set forth in this Section 4.2 shall relieve either party from
liability for any intentional breach of this
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Agreement
prior to termination hereof, and (y) the provisions of this Article IV shall
survive any termination of this Agreement.
4.3. Amendments
and Waivers. Any provision of this Agreement may be amended or waived if
such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by the
party against whom the waiver is to be effective. No failure or delay
by either party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
4.4. Expenses.
All costs and expenses incurred in connection with this Agreement shall be paid
by the party incurring such cost or expense.
4.5. Binding
Effect; Benefit; Assignment. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. No provision of this Agreement is
intended to confer any rights, benefits, remedies, obligations or liabilities
hereunder upon any person other than the parties hereto and their respective
successors and assigns. Neither party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
the consent of the other party hereto, except that Parent may transfer or assign
its rights and obligations under this Agreement, in whole or from time to time
in part, to one or more of its Affiliates at any time; provided, that such
transfer or assignment shall not relieve Parent of any of its obligations
hereunder.
4.6. Governing
Law; Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to its rules
of conflict of laws. Parent and the Stockholder hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
courts of Delaware Court of Chancery, or if no such state court has
proper jurisdiction, then the Federal court of the U.S. located in the State of
Delaware, and appellate courts therefrom, (collectively, the “Delaware Courts”) for
any litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in any
inconvenient forum. Each of the parties hereto agrees (i) to the
extent such party is not otherwise subject to service of process in the State of
Delaware, to appoint and maintain an agent in the State of Delaware as such
party’s agent for acceptance of legal process and (ii) that service of process
may also be made on such party by prepaid certified mail with a proof of mailing
receipt validated by United States Postal Service constituting evidence of valid
service. Service made pursuant to (i) or (ii) above shall have the
same legal force and effect as if served upon such party personally within the
State of Delaware. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
4.7. Counterparts.
The parties may execute this Agreement in one or more counterparts, each of
which will be deemed an original and all of which, when taken together, will be
deemed to constitute one and the same agreement. Any signature page
hereto delivered by facsimile machine or by e-mail (including in portable
document format (pdf), as a joint photographic experts group (jpg) file, or
otherwise) shall be binding to the same extent as an original signature page,
with regard to any
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agreement
subject to the terms hereof or any amendment thereto and may be used in lieu of
the original signatures for all purposes. Each party that delivers
such a signature page agrees to later deliver an original counterpart to the
other party that requests it.
4.8. Entire
Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement and supersedes all
prior agreements and understandings, both oral and written, between the parties
with respect to its subject matter.
4.9. Severability.
If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Body to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to either party. Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
4.10. Specific
Performance. The parties hereto agree that Parent would be irreparably
damaged if for any reason any Stockholder fails to perform any of its
obligations under this Agreement and that Parent may not have an adequate remedy
at law for money damages in such event. Accordingly, Parent shall be entitled to
specific performance and injunctive and other equitable relief to prevent
breaches of this Agreement or to enforce specifically the performance of the
terms and provisions hereof in any Delaware Court, in addition to any other
remedy to which they are entitled at law or in equity, in each case without
posting bond or other security, and without the necessity of proving actual
damages.
4.11. Headings.
The Section headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this
Agreement.
4.12. No
Presumption. This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
4.13. Further
Assurances. Parent and the Stockholder will execute and deliver, or cause
to be executed and delivered, all further documents and instruments and use
their respective reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable Legal Requirements, to perform their respective
obligations as expressly set forth under this Agreement.
4.14. Interpretation. Unless
the context otherwise requires, as used in this Agreement: (i) “or” is not
exclusive; (ii) “including” and its variants mean “including, without
limitation” and its variants; (iii) words defined in the singular have the
parallel meaning in the plural and vice versa; (iv) words of one gender shall be
construed to apply to each gender; and (v) the terms “Article,” “Section” and
“Schedule” refer to the specified Article, Section or Schedule of or to this
Agreement.
4.15 Capacity
as Stockholder. The Stockholder signs this Agreement solely in
the Stockholder’s capacity as a Stockholder of the Company, and not in the
Stockholder’s capacity as a director, officer or employee of the Company or any
of its Subsidiaries or in the Stockholder’s capacity
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as
a trustee or fiduciary of any employee benefit plan or
trust. Notwithstanding anything herein to the contrary, nothing
herein shall in any way restrict a director or officer of the Company in the
exercise of his or her fiduciary duties as a director or officer of the Company
or in his or her capacity as a trustee or fiduciary of any employee benefit plan
or trust or prevent or be construed to create any obligation on the part of any
director or officer of the Company or any trustee or fiduciary of any employee
benefit plan or trust from taking any action in his or her capacity as such
director, officer, trustee or fiduciary.
4.16 No
Agreement Until Executed. Irrespective of negotiations among
the parties or the exchanging of drafts of this Agreement, this Agreement shall
not constitute or be deemed to evidence a contract, agreement, arrangement or
understanding between the parties hereto unless and until (a) the board of
directors of the Company has approved, for purposes of any applicable
anti-takeover laws and regulations, and any applicable provision of the
Company's organizational documents, the possible acquisition of the Company by
Parent pursuant to the Merger Agreement, (b) the Merger Agreement is executed by
all parties thereto, and (c) this Agreement is executed by all parties
hereto.
[SIGNATURE
PAGE FOLLOWS]
The
parties are executing this Agreement on the date set forth in the introductory
clause.
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IXYS
CORPORATION
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By:
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Name:
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Title:
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STOCKHOLDER
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By:
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Name:
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Title:
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[Signature
Page to Support Agreement]
Schedule
A
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Name of Stockholder
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No. Shares
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