Exhibit 5
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Execution Copy
COMPANY VOTING AGREEMENT
AGREEMENT, dated as of March 10, 2002 (this "Agreement"), by and among
Intersil Corporation, a Delaware corporation ("Parent"), Echo Acquisition, Inc.,
a Delaware corporation and wholly-owned subsidiary of Parent ("Merger Sub"),
Elantec Semiconductor, Inc., a Delaware corporation ("Company"), and the
stockholders of the Company set forth in Annex A hereto (each a "Stockholder"
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and, collectively, the "Stockholders").
WHEREAS, the Board of Directors of Parent and the Board of Directors of
Company have approved an Agreement and Plan of Merger, dated as of even date
herewith (the "Merger Agreement") (capitalized terms used but not defined herein
having the respective meanings given to them in the Merger Agreement), providing
for the merger of the Company with and into Merger Sub;
WHEREAS, the Stockholder is the record and beneficial owner of shares
of Company common stock, par value $.01 per share ("Company Common Stock"),
Company Options, warrants to purchase Company Common Stock and/or interests in
Company Common Stock through the Company 423 Plan or the Company's 401(k) plan,
in the amounts and of the types set forth opposite the Stockholder's name on
Annex A hereto (the "Shares");
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WHEREAS, as a condition to Parent's entering into the Merger Agreement,
Parent has required that the Stockholder agree, and the Stockholder has agreed,
to enter into this Agreement.
NOW, THEREFORE, to induce Parent to enter into the Merger Agreement and
in consideration of the premises herein contained, the parties agree as follows:
1. Grant of Irrevocable Proxy. (a) Until this Agreement is terminated,
the Stockholder hereby irrevocably appoints Merger Sub, its officers, agents and
nominees, with full power of substitution, as proxy for and attorney in fact of
the Stockholder to act with respect to and vote the Shares, if any, owned by the
Stockholder for and in the name, place and stead of the Stockholder at any
annual, special or other meeting of the holders of shares of the Company Common
Stock and at any adjournment or postponement thereof or pursuant to any written
consent in lieu of a meeting, to the fullest extent that the Shares are entitled
to be voted, in favor of the Merger, the Merger Agreement and the transactions
contemplated thereby. In all other matters, the Shares shall be voted by and in
the manner determined by the Stockholder upon written notice to Merger Sub. The
Stockholder hereby represents that he has not heretofore granted any irrevocable
proxy with respect to the Shares and hereby revokes any and all proxies which
may heretofore have been granted with respect to the Shares.
(b) The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder's execution
and delivery of this Agreement. The Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1 is given in
connection with and as an inducement for the execution by Parent of the Merger
Agreement and to secure the performance of the duties of the Stockholder under
this Agreement. The Stockholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may not be revoked. The Stockholder hereby
ratifies and confirms all that such proxy may lawfully do or cause to be done by
virtue hereof. This proxy is executed and intended to be irrevocable in
accordance with the provisions of the DGCL.
2. Additional Covenants of the Stockholder. The Stockholder hereby
covenants and agrees with Parent and Merger Sub that, until this Agreement
terminates:
(a) The Stockholder will deliver to Parent at Parent's request a written
representation confirming, as of immediately prior to the Effective Time, the
accuracy of the representations and warranties contained in Section 3.
(b) As of the date hereof, the Stockholder will execute the Company
Affiliate Letter promptly upon request therefor, which letter shall be in the
form attached as an exhibit to the Merger Agreement.
3. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent and Merger Sub that:
(a) (i) The Shares listed on Annex A opposite the Stockholder's name are
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the only shares of Company capital stock, securities convertible into Company
capital stock, or other rights in respect of Company capital stock
(collectively, "Company Securities") owned of record or beneficially by the
Stockholder or in which the Stockholder has any interest; (ii) except as set
forth on Annex A, such Shares are owned by the Stockholder, free and clear of
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all liens, claims, charges and encumbrances of any kind whatsoever except for
liens, claims or charges arising from margin loans from a bank or brokerage firm
and except as contemplated by this Agreement, and none of such Shares is subject
to any voting trust or other agreement or arrangement (except as created by this
Agreement) with respect to the voting of such Shares; and (iii) the Stockholder
does not presently own any options to purchase or rights to subscribe for or
otherwise acquire any other shares of Company Common Stock except as set forth
in Annex A.
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(b) The Stockholder has full right, power and authority to execute and
deliver this Agreement and to perform all of such Stockholders' obligations
hereunder, and such execution, delivery and performance have been duly
authorized by all requisite action of the Stockholder and no other legal
proceedings are necessary therefor.
(c) This Agreement has been duly and validly executed and delivered by the
Stockholder and represents a valid and legally binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights
generally or laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
(d) Except as noted on Annex A, the execution, delivery and performance of
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this Agreement by the Stockholder will not constitute a violation of, conflict
with or result in a default under (i) any contract, understanding or arrangement
to which the Stockholder is a party or by which the Stockholder is bound or
require the consent of any other person or any party pursuant thereto, (ii) any
judgment, decree or order applicable to the Stockholder, or (iii) any applicable
law, statute, rule or regulation.
4. Representations, Warranties and Covenants of Parent and Merger Sub.
Parent and Merger Sub hereby represent and warrant to the Stockholder that (i)
Parent and Merger Sub each have full corporate right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder,
(ii) such execution, delivery and performance have been duly authorized by all
requisite corporate action by Parent and Merger Sub, and no other corporate
proceedings are necessary therefor, (iii) this Agreement has been duly and
validly executed and delivered by Parent and Merger Sub and represents a valid
and legally binding obligation of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with its terms; except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally or laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (iv) the execution, delivery and performance of
this Agreement by Parent and Merger Sub will not constitute a violation of,
conflict with or result in a default under (A) any contract, understanding or
arrangement to which either Parent or Merger Sub is a party or by which either
is bound or require the consent of any other person or any party pursuant
thereto, (B) any judgment, decree or order applicable to Parent or Merger Sub,
or (C) any applicable law, statute, rule or regulation.
5. Termination. This Agreement, other than the obligations set forth in
Section 7, shall terminate at the earlier of the Effective Time or after
termination of the Merger Agreement pursuant to its terms.
6. Severability. Any term, provision, covenant or restriction contained in
this Agreement held by a court or other Governmental Authority of competent
jurisdiction to be invalid, void or unenforceable shall be ineffective to the
extent of such invalidity, voidness or unenforceability, but neither the
remaining terms, provisions, covenants or restrictions contained in this
Agreement nor the validity or enforceability thereof in any other jurisdiction
shall be affected or impaired thereby. Any term, provision, covenant or
restriction contained in this Agreement that is so found to be so broad as to be
unenforceable shall be interpreted to be as broad as is enforceable.
7. Expenses. Each of the parties hereto shall pay all costs and expenses
incurred by such person or on such person's behalf in connection with the
transactions contemplated hereunder, including fees and expenses of such
person's own financial consultants, investment bankers, accountants and counsel,
except as otherwise provided herein.
8. Entire Agreement. This Agreement (including the documents and the
instruments referred to therein) constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, agreements or
representations by or between the parties, written and oral, with respect to the
subject matter hereof and thereof.
9. Successors; No Third Party Beneficiaries. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party, other than the
parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
10. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or dispatched by a nationally recognized overnight courier service to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(i) if to Parent or Merger Sub, to:
Intersil Corporation
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No: (000) 000-0000
with a copy to:
Dechert
0000 Xxxx Xxxxxx
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: G. Xxxxxx X'Xxxxxxx, Esquire
Xxxxxxxxxxx X. Xxxxxx, Esquire
Facsimile No.: (000) 000-0000
(ii) if to the Stockholder:
to the address set forth opposite the name on Annex A.
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with a copy to:
Fenwick & West LLP
Embarcadero Center West
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esquire
Facsimile No: 000-000-0000
11. Counterparts. This Agreement may be executed in counterparts, and each
such counterpart shall be deemed to be an original instrument, but both such
counterparts together shall constitute but one agreement.
12. Specific Performance. The parties hereto agree that if for any reason
Parent or the Stockholder shall have failed to perform their obligations under
this Agreement, then the party hereto seeking to enforce this Agreement against
such non-performing party shall be entitled to specific performance and
injunctive and other equitable relief, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. This provision
is without prejudice to any other rights that any party hereto may have against
any other party hereto for any failure to perform its obligations under this
Agreement.
13. Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to the conflict of laws principles
thereof.
14. Waiver and Amendment. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits of such provision. This
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the parties hereto.
15. Duties. Parent and Merger Sub acknowledge and agree that the
Stockholder has entered into this Agreement in his capacity as a stockholder of
Company and that this Agreement shall in no way restrict the Stockholder in such
Stockholder's capacity as a director or officer of Company and the performance
of such person's duties to Company and its stockholders.
16. Additional Shares. Notwithstanding the provisions of Section 15, in the
event that the Stockholder acquires any additional Company Securities, such
securities shall, without further action of the parties, be subject to the
provisions of this Agreement, and Annex A will be deemed amended accordingly. If
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the Stockholder acquires additional Company Securities, such Stockholder shall
promptly notify Parent in writing of such acquisition.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
INTERSIL CORPORATION
By: XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President, General Counsel and
Secretary
ECHO ACQUISITION, INC.
By: XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President, Secretary and
Treasurer
ELANTEC SEMICONDUCTOR, INC.
By: XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
STOCKHOLDER
XXXXX XXXXXXXXXX
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Xxxxx Xxxxxxxxxx
ANNEX A
Securities (in number of shares)
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Common- Common- Common-
Record and Beneficial Owner Direct By Options By Company 423
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Xxxxxxx X. Xxxxx 71,500 298,532 1,036
00000 Xxxxxxx Xxxx
Xxx Xxxxx Xxxxx, XX 00000
Xxxxx X. Xxxx 19,571 90,417 0
0000 Xxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Xxxxx Xxxxxxx, Xx. 65,523 91,429 1,942
0000 Xxxxxx Xxxx Xxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxx 277,480 812,083 0
000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Xxxx X. Xxxx 40,000 74,583 0
00000 Xxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxx 0 50,000 457
000 Xx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Xxxxx Xxxxxxxxxx 0 48,666 0
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx XxXxxxxx 0 64,500 457
0000 Xxxxxxxxx Xxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxx 0 42,499 0
0000 Xxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
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Total 474,074 1,572,709 4,315
