AMENDMENT NUMBER TWO TO THE
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NUMBER TWO TO THE AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT"), dated as of December 10, 1997, by and between TPG PARTNERS II,
L.P., a Delaware limited partnership ("PARENT"), TPG ZEUS ACQUISITION
CORPORATION, a Delaware corporation ("SUB") and ZILOG, INC., a Delaware
corporation (the "COMPANY"),
W I T N E S S E T H:
WHEREAS, Parent and the Company are parties to that certain Agreement
and Plan of Merger, dated as of July 20, 1997, as amended by Amendment Number
One to the Agreement and Plan of Merger, dated as of November 18, 1997 (the
"Merger Agreement"); and
WHEREAS, pursuant to Section 8.3 of the Merger Agreement, the parties
hereto wish to amend the Merger Agreement as provided herein:
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, the
parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein
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shall the meanings set forth in the Merger Agreement.
SECTION 2. Amendment to the Merger Agreement.
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SECTION 2.1. Section 1.5(a) of the Merger Agreement shall be amended
and restated in its entirety, and shall be replaced by the following:
"(a) The Certificate of Incorporation of the Company, as in
effect immediately prior to the Effective Time, shall be amended as of
the Effective Time so that Article IV of such Certificate of
Incorporation is amended to read in its entirety as follows:
FOURTH: The Corporation shall be authorized to issue 50,000,000 shares
of common stock and 5,000,000 shares of preferred stock. There shall be
two classes of common stock of the Corporation. The first class of
common stock of the Corporation shall have a par value of $0.01 and
shall be designated "Common Stock" and the number of shares
constituting such class shall be
35,000,000. The second class of stock of the Corporation shall have a
par value of $0.01 and shall be designated "Class A Non-Voting Common
Stock" and the number of shares constituting such class shall be
15,000,000. Holders of shares of Common Stock shall be entitled to one
vote for each share of such stock held on all matters as to which
stockholders may be entitled to vote pursuant to the Delaware General
Corporation Law. Holders of shares of Class A Non-Voting Common Stock
shall not have any voting rights, except that the holders of shares of
Class A Non-Voting Common Stock shall have the right to vote as a class
to the extent required by the Delaware General Corporation Law. In all
other respects the rights, powers, preferences and limitations of the
Common Stock and Class A Non-Voting Common Stock shall be identical.
The preferred stock shall have a par value of $100.00 and the board of
directors may authorize the issuance from time to time of the preferred
stock in one or more classes and/or series and with such powers,
designations, preferences, rights and qualifications, limitations or
restrictions (which may differ with respect to each such class and/or
series) as the board may fix by resolution."
"As so amended, such Certificate of Incorporation shall be the
Certificate of Incorporation of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable
law."
SECTION 3. Representations and Warranties.
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(a) The Company. The execution, delivery and performance of this
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Amendment by the Company have been duly authorized by the Board of Directors of
the Company and by all other necessary corporate action on the part of the
Company. This Amendment has been duly executed and delivered by the Company and
(assuming the valid authorization, execution and delivery of this Amendment by
Parent and Sub) constitutes the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of creditors' rights
generally and (ii) is subject to general principles of equity.
(b) Parent and Sub. The execution, delivery and performance of this
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Amendment by each of Parent and Sub have been duly authorized by the General
Partner of Parent and the Board of Directors of Sub, respectively, and by all
other necessary partnership or corporate action on the part of Parent or Sub,
respectively. This Amendment has been duly executed and delivered by each of
Parent and Sub and (assuming the valid authorization, execution and delivery of
this Amendment by the Company) constitutes the valid and binding obligation of
each of Parent and Sub enforceable against them in accordance with its terms,
except that such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of equity.
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SECTION 4. Miscellaneous.
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(a) Other than as set forth in Section 2.1, this Amendment does not
modify, change or delete any other addendum, term, provision, representation,
warranty or covenant (the "PROVISIONS") relating to or contained in the Merger
Agreement, and all such Provisions remain in full force and effect. For the
avoidance of doubt, all references in the Merger Agreement to "the date hereof"
or "the date of this Agreement" shall be deemed to be references to the date
July 20, 1997.
(b) This Amendment 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 laws thereof. This
Amendment may be executed in counterparts, all of which shall be considered one
and the same agreement, and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties.
(c) This Amendment and any of the provisions hereof may not be amended,
altered or added to in any manner except by a document in writing and signed by
each party.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Amendment
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to be signed by their respective officers thereunto duly authorized all as of
the date first written above.
TPG PARTNERS II, L.P.
By: TPG GenPar II, L.P., its General
Partner
By: TPG Advisors II, Inc., its General
Partner
By /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
TPG ZEUS ACQUISITION CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Secretary and Treasurer
ZILOG, INC.
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President and CEO
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