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EXHIBIT 2.4
AMENDMENT NUMBER THREE TO THE
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NUMBER THREE TO THE AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT"), dated as of January 26, 1998, by and among 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"),
WITNESSETH:
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, dated as of November 18, 1997, and Amendment Number Two, dated as of
December 10, 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
shall the meanings set forth in the Merger Agreement.
SECTION 2. Amendment to the Merger Agreement. The third sentence of
Section 2.1(c)(ii) of the Merger Agreement shall be amended and restated in
its entirety, and shall be replaced by the following:
"Any such holder's election to retain Non-Cash Election Shares shall
have been properly made only if the Exchange Agent (as defined in
Section 2.3(a)) shall have received at its designated office by 5:00
p.m., New York City time on February 20, 1998 (the "Election Date"), a
Form of Election properly completed and signed and accompanied by
certificates for the Shares to which such Form of Election relates, duly
endorsed in blank or otherwise in form acceptable for transfer on the
books of the Company (or by an appropriate guarantee of delivery of such
certificates as set forth in such Form of Election from a firm which is
a member of a registered national securities exchange or of the National
Association of Securities Dealers, Inc. or a commercial bank or trust
company having an office or correspondent in the United States, provided
such certificates are in fact delivered to the Exchange Agent within
three New York Stock Exchange trading days after the date of execution
of such guarantee of delivery)."
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SECTION 3. Representations and Warranties.
(a) The Company. The execution, delivery and performance of this
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
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.
SECTION 4. Miscellaneous.
(a) Other than as set forth in Section 2, 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.
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IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Amendment
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/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
TPG ZEUS ACQUISITION CORPORATION
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: President
ZILOG, INC.
By:
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Name:
Title:
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IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Amendment 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
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
TPG ZEUS ACQUISITION CORPORATION
By
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Name: Xxxxx X. Xxxxxxx
Title: President
ZILOG, INC,
By /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Chairman of the Board
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