SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
BENCHMARQ MICROELECTRONICS, INC.
--------------------------------
(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
00 00816031
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(CUSIP Number of Class of Securities)
Allan R. Campbell, Esq.
Unitrode Corporation
7 Continental Boulevard
Merrimack, New Hampshire 03054
(603)424-2410
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to:
Margaret A. Brown, Esq.
Skadden, Arps, Slate, Meagher & Flom, LLP
One Beacon St., 31st Floor
Boston, MA 02108-3194
(617) 573-4800
June 23, 1998
-----------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Statement because of
Rule 13d-1(b)(3) or (4), check the following:
( )
Check the following box if a fee is being paid with this Statement:
( )
CUSIP No. 13D
0000816031
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(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
UNITRODE CORPORATION
042271186
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS*
WC/00
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
( )
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
MARYLAND
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: (7) SOLE VOTING POWER
:
: 955,158(1)
:--------------------------------------------
NUMBER OF SHARES : (8) SHARED VOTING POWER
BENEFICIALLY OWNED BY :
EACH REPORTING PERSON WITH : 1,460,609(2)
:--------------------------------------------
: (9) SOLE DISPOSITIVE POWER
:
: 955,158(1)
:--------------------------------------------
: (10) SHARED DISPOSITIVE POWER
:
: 1,460,609(2)
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,415,767(1 AND 2)
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(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
EXCLUDES CERTAIN SHARES* ( )
N/A
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
APPROXIMATELY 29.9%(3)
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(14) TYPE OF REPORTING PERSON*
CO
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* SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) 955,158 of the shares of Issuer common stock covered by this report
are purchasable by the Reporting Person upon exercise of an option
originally granted to the Reporting Person as of March 2, 1998, and
described in Item 4 of this report. Prior to the exercise of the
option, the Reporting Person is not entitled to any rights as a
stockholder of Issuer as to the shares covered by the option. The
option may only be exercised upon the happening of certain events
referred to in Item 4, none of which has occurred as of the date
hereof. The Reporting Person expressly disclaims beneficial ownership
of any of the shares of common stock of Issuer which are purchasable
by the Reporting Person upon exercise of the option until such time as
the Reporting Person purchases any such shares upon any such exercise.
The number of shares indicated represents 13.4% of the total
outstanding shares of common stock of Issuer as of March 2, 1998,
excluding shares issuable upon exercise of the option.
(2) 1,460,609 of the shares of the Issuer common stock covered by this
report are subject to a Voting Agreement entered into by certain
stockholders of the Issuer with the Reporting Person pursuant to which
such stockholders have agreed to vote all of the shares beneficially
owned by such stockholders in favor of certain matters, including
without limitation the proposed merger of Merrimack Corporation, a
wholly owned subsidiary of the Reporting Person, with and into the
Issuer, and against, among other things, any action or agreement that
could reasonably be executed to result, directly or indirectly, in a
breach in any material respect of any covenant, representation or
warranty or any obligation of the Issuer under the Agreement and Plan
of Merger dated as of March 2, 1998, as amended on June 23, 1998,
between the Issuer, Merrimack Corporation and the Reporting Person
described in Item 3 hereof. The Reporting Person expressly disclaims
beneficial ownership of any of the shares of Issuer common stock
covered by the Voting Agreement. The number of shares indicated
represents approximately 20.6% of the outstanding shares of common
stock of the Issuer as of March 2, 1998, excluding the shares issuable
upon exercise of the Option (as described above).
(3) After giving effect to the exercise of the option as described herein.
This Amendment No. 1 to Schedule 13D restates in its entirety the Schedule
13D dated March 2, 1998 previously filed by Unitrode Corporation.
ITEM 1. Security and Issuer.
This statement on Schedule 13D (the "Schedule 13D") relates to
the common stock, par value $.001 per share (the "Shares" or the "Issuer
Common Stock"), of BENCHMARQ Microelectronics, Inc., a Delaware corporation
(the "Issuer"). The principal executive office of the Issuer is located at
17919 Waterview Parkway, Dallas, Texas 75252.
The information set forth in the Exhibits hereto is hereby
expressly incorporated herein by reference and the responses to each item
of this Schedule 13D are qualified in their entirety by the provisions of
such Exhibits.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(c) This Schedule 13D is filed by Unitrode Corporation, a
Maryland corporation (the "Reporting Person").
The business address of the Reporting Person is 7 Continental
Boulevard, Merrimack, New Hampshire 03054. The principal business of the
Reporting Person is the design and manufacture of analog/linear integrated
circuits.
To the best of the Reporting Person's knowledge as of the date
hereof, the name, business address, present principal occupation or
employment, name, principal business and address of any corporation or
other organization in which such employment is conducted, and citizenship
of each executive officer and director of the Reporting Person is set forth
in Schedule I hereto. The information contained in Schedule I is
incorporated herein by reference.
(d)-(e) During the last five years, neither the Reporting Person
nor, to the best knowledge of the Reporting Person, any of the executive
officers or directors of the Reporting Person, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors),
or been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, Federal or State
securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Reporting Person entered into an Agreement and Plan of Merger
dated as of March 2, 1998, as amended by an Amendment to Agreement and Plan
of Merger dated as of June 23, 1998, by and among the Reporting Person,
Merrimack Corporation, a Delaware corporation and wholly owned subsidiary
of the Reporting Person ("Merger Sub"), and the Issuer (as amended, the
"Merger Agreement"), providing for the merger (the "Merger") of the Merger
Sub with and into the Issuer with the Issuer as the surviving corporation,
pursuant to which each outstanding Share will be converted into the right
to receive one share of common stock, par value $0.01 per share, of the
Reporting Person (the "Reporting Person Common Stock") and one associated
preferred stock purchase right (a "Right") issued in accordance with the
Rights Agreement (the "Rights Agreement"), dated as of May 2, 1990, as
amended from time to time, between the Reporting Person and the First
National Bank of Boston (references to shares of the Reporting Person
Common Stock issuable in the Merger are deemed to include the associated
Rights). The Merger is subject to the approval of the Merger by the
Issuer's stockholders, the approval by the Reporting Person's stockholders
of the issuance of Reporting Person Common Stock in the Merger, and any
other required regulatory approvals, and the satisfaction or waiver of
certain other conditions as more fully described in the Merger Agreement.
The foregoing summary of the Merger and the Merger Agreement is qualified
in its entirety by reference to the Merger Agreement, a copy of which is
included as Exhibit 1 to this Schedule 13D and is incorporated herein in
its entirety by reference.
As a further inducement for the Reporting Person to enter into
the Merger Agreement and in consideration thereof, Issuer and the Reporting
Person entered into that certain Stock Option Agreement, dated as of March
2, 1998, as amended June 23, 1998 (the "Option Agreement"), whereby Issuer
granted to the Reporting Person an option (the "Option") to purchase, under
certain circumstances described therein, up to 955,158 Shares at a purchase
price per Share equal to $11.38, as adjusted as provided therein (the
"Purchase Price"). Based on the number of Shares outstanding on March 2,
1998, the Option would be exercisable for approximately 13.4% of the
outstanding Shares, or approximately 10% of the Shares on a fully diluted
basis after giving effect to the exercise of the Option.
None of the Triggering Events (defined in Item 4 below)
permitting the exercise of the Option has occurred as of the date hereof.
In the event that the Option becomes exercisable and the Reporting Person
wishes to purchase the Shares subject thereto, the Reporting Person
anticipates that it would fund the exercise price with working capital or
through other financing sources available to the Reporting Person at the
time of exercise. See also Item 4 below.
As a further inducement for the Reporting Person to enter into
the Merger Agreement, Alan R. Schuele, Derrell C. Coker, L.J. Sevin, Harvey
B. Cash, Dietrich Erdmann, Jack Kilby and Charles H. Phipps, stockholders
of the Issuer (the "Stockholders") entered into a Voting Agreement, dated
as of March 2, 1998, as amended June 23, 1998 (the "Voting Agreement"),
with the Reporting Person whereby the Stockholders agreed to vote all of
the Shares beneficially owned by them in favor of certain matters,
including without limitation, the approval and adoption of the Merger
Agreement, and against, among other things, any action 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
obligation of the Issuer under the Merger Agreement or the Option
Agreement. The Reporting Person did not pay additional consideration to
any Stockholder in connection with the execution and delivery of the Voting
Agreement.
ITEM 4. PURPOSE OF THE TRANSACTION.
(a)-(j) The information set forth in Item 3 is hereby
incorporated herein by reference.
Pursuant to the Option Agreement, the Issuer has granted the
Reporting Person the Option, which, based on the number of Shares
outstanding on March 2, 1998, would be exercisable for approximately 13.4%
of the outstanding Shares, or approximately 10% of the Shares on a fully
diluted basis after giving effect to the exercise of the Option.
The Reporting Person may exercise the Option, in whole or in
part, at any time and from time to time following the occurrence of certain
events (each, a "Triggering Event"), provided that the Reporting Person
provides notice of such exercise in accordance with the Option Agreement.
A Triggering Event includes the following:
(i) any Person (as defined in the Merger Agreement) (other than
the Reporting Person or any subsidiary of the Reporting Person) shall
have commenced (as such term is defined in Rule 14d-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) or
shall have filed a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), with respect to a tender
offer or exchange offer to purchase any shares of Issuer Common Stock
such that, upon consummation of such offer, such Person would own or
control 10% or more of the then outstanding Issuer Common Stock;
(ii) the Issuer or any subsidiary of the Issuer shall have
authorized, recommended, proposed or publicly announced an intention
to authorize, recommend or propose, or entered into, an agreement with
any Person (other than the Reporting Person or any subsidiary of the
Reporting Person) to (A) effect a merger, reorganization,
consolidation, share exchange or other business combination or similar
transaction involving the Issuer or any of its Significant
Subsidiaries (within the meaning of Rule 1-02 of Regulation S-X of the
Securities and Exchange Commission), (B) sell, lease or otherwise
dispose of assets of the Issuer or its subsidiaries representing 10%
or more of the consolidated assets of the Issuer other than in the
ordinary course of business or (C) issue, sell or otherwise dispose of
(including by way of merger, reorganization, consolidation, share
exchange or other business combination or any similar transaction)
securities (or options, rights or warrants to purchase, or securities
convertible into or exchangeable for, such securities) representing
10% or more of the voting power of the Issuer or any of its
Significant Subsidiaries; or
(iii) any Person (other than the Reporting Person or any
subsidiary of the Reporting Person or the Issuer or, in a fiduciary
capacity, any subsidiary of the Issuer) shall have, subsequent to the
date of the Option Agreement, acquired beneficial ownership (as such
term is defined in Rule 13d-3 under the Exchange Act) or the right to
acquire beneficial ownership of, or any "Group" (as such term is
defined under the Exchange Act) shall have been formed which
beneficially owns or has the right to acquire beneficial ownership of,
10% or more of the then outstanding Issuer Common Stock.
provided, that the Option will terminate either (i)immediately prior to the
Effective Time (as defined in the Merger Agreement) of the Merger; or (ii)
at the time of termination of the Merger Agreement (A) by the Issuer or the
Reporting Person pursuant to Subsection 9.1(d) of the Merger Agreement,
provided that the matter giving rise to the Order (as defined in the Merger
Agreement) providing the basis for termination under Subsection 9.1(d) of
the Merger Agreement shall not have been initiated by the Issuer or any
Person who initiates an Acquisition Proposal (as such item is defined in
the Merger Agreement), (B) by the Issuer pursuant to Subsection 9.1(c) or
Subsection 9.1(j) of the Merger Agreement, (C) by either the Issuer or the
Reporting Person pursuant to Subsection 9.1(g) of the Merger Agreement, (D)
by both the Issuer and the Reporting Person pursuant to Subsection 9.1(a)
of the Merger Agreement, (E) by the Issuer or the Reporting Person pursuant
to Subsection 9.1(e) of the Merger Agreement (if there then exists
circumstances that would permit termination of the Merger Agreement by the
Issuer pursuant to Subsection 9.1(e) of the Merger Agreement), (F) by the
Reporting Person pursuant to Subsection 9.1(i)(i) of the Merger Agreement
(if circumstances exist that would allow the Company to terminate the
Merger Agreement pursuant to Subsection 9.1(c) of the Merger Agreement as a
result of a change that would have a Material Adverse Effect with respect
to the Reporting Person) or (G) by either party pursuant to any other
provision of the Merger Agreement; provided (in the case of subsection (G))
such termination occurs prior to the occurrence of an Acquisition Proposal.
Upon the occurrence of certain events set forth in the Option
Agreement, the Issuer is required to repurchase the Option (the
"Repurchase") or to cause the Option to be converted into, or exchanged
for, an option of another corporation (the "Substitute Option"). In
addition, the Option Agreement grants certain registration rights (the
"Registration Rights") to the Reporting Person with respect to the Shares
represented by the Option. Also, under certain circumstances, the Issuer
is entitled to a right of first refusal (the "Right of First Refusal") if
the Reporting Person desires to sell all or any part of the Option or
Shares acquired by it pursuant thereto. Notwithstanding any other
provisions of the Option Agreement, the Total Profit (as defined therein)
which the Reporting Person may realize from the Option may not exceed
$7,278,000. The terms of such Repurchase, Substitute Option, Registration
Rights, Right of First Refusal and limitations on Total Profit are set
forth in the Option Agreement. The foregoing summary of the Amendment to
Option Agreement is qualified in its entirety by reference to the copy of
the Option Agreement included as Exhibit 2 of this Schedule 13D and
incorporated herein in its entirety by reference.
Pursuant to the Voting Agreement, the Stockholders agreed to vote
all of the Shares beneficially owned by them in favor of certain matters,
including without limitation, the approval and adoption of the Merger
Agreement, and against, among other things, any action 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
obligation of the Issuer under the Merger Agreement or the Option
Agreement. The Voting Agreement terminates upon the earlier to occur of
the Effective Time or the termination of the Merger Agreement. The name of
each Stockholder and the number of outstanding shares of Issuer Common
Stock held by each Stockholder are set forth on Schedule A to the Amendment
to Voting Agreement which is incorporated herein by reference. The
foregoing summary of the Amendment to Voting Agreement is qualified in its
entirety by reference to the copy of the Voting Agreement included as
Exhibit 3 of this Schedule 13D and incorporated herein in its entirety by
reference.
The purpose of the Option Agreement and the Voting Agreement are
to facilitate consummation of the Merger.
Upon consummation of the Merger as contemplated by the Merger
Agreement, (a) a new subsidiary of the Reporting Person will be merged into
the Issuer, (b) the Board of Directors of the Issuer will be replaced by
the Board of Directors of Merger Sub, (c) the Certificate of Incorporation
and Bylaws of the Issuer will be replaced by the Certificate of
Incorporation and Bylaws of the Merger Sub, (d) the Shares will cease to be
authorized for listing on the Nasdaq National Market and (e) the Shares
will become eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(b) The number of Shares covered by the Option is 955,158,
which constitutes approximately (i) 13.4% of Issuer Common Stock based on
the Shares issued and outstanding on March 2, 1998, or (ii) 10% of the
shares of Issuer Common Stock that would be outstanding after giving effect
to the exercise of the Option.
Prior to the exercise of the Option, the Reporting Person (i) is
not entitled to any rights as a stockholder of Issuer as to the Shares
covered by the option and (ii) disclaims any beneficial ownership of the
shares of Issuer Common Stock which are purchasable by the Reporting Person
upon exercise of the Option because the Option is exercisable only in the
limited circumstances referred to in Item 4 above, none of which has
occurred as of the date hereof. If the Option were exercised, the
Reporting Person would have the sole right to vote or to dispose of the
shares of Issuer Common Stock issued as a result of such exercise.
The number of Shares covered by the Voting Agreement is
1,460,609, which constitutes approximately 20.6% of the Issuer Common
Stock, based on the number of Shares outstanding as of March 2, 1998.
The Reporting Person (i) is not entitled to any rights as a
stockholder of Issuer as to the Shares covered by the Voting Agreement and
(ii) disclaims any beneficial ownership of the shares of Issuer Common
Stock which are by the Voting Agreement.
(c) Other than as set forth in this Item 5, to the best of the
Reporting Person's knowledge as of the date hereof (i) neither the
Reporting Person nor any subsidiary or affiliate of the Reporting Person
nor any of the Reporting Person's executive officers or directors,
beneficially owns any shares of Issuer Common Stock, and (ii) there have
been no transactions in the shares of Issuer Common Stock effected during
the past 60 days by the Reporting Person, nor to the best of the Reporting
Person's knowledge, by any subsidiary or affiliate of the Reporting Person
or any of the Reporting Person's executive officers of directors.
(d) No other person is known by the Reporting Person to have the
right to receive or the power to direct the receipt of dividends from, or
the proceeds from the sale of, the Issuer Common Stock obtainable by the
Reporting Person upon exercise of the Option.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Copies of the Merger Agreement, the Option Agreement and the Voting
Agreement are attached as Exhibits hereto and, to the best of the Reporting
Person's knowledge, there are at present no contracts, arrangements,
understandings or relationship (legal or otherwise) among the persons named
in Item 2 above and between any such persons and any person which respect
to any securities to the Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT DESCRIPTION
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1 Amendment to Agreement and Plan of Merger, dated as of June 23,
1998 by and among Unitrode Corporation, Merrimack Corporation and
BENCHMARQ Microelectronics, Inc., without exhibits thereto.
2 Amendment to Stock Option Agreement, dated as of June 23, 1998 by
and between Unitrode Corporation as "Grantee" and BENCHMARQ
Microelectronics, Inc. as "Issuer."
3 Amendment to Voting Agreement, dated as of June 23, 1998, by and
between Unitrode Corporation and Alan R. Schuele, Derrell C.
Coker, L.J. Sevin, Harvey B. Cash, Dietrich Erdmann, Jack Kilby
and Charles H. Phipps.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that this statement is true, complete and correct.
UNITRODE CORPORATION
By: ______________________________
Name: Allan R. Campbell
Title: Senior Vice President
Dated: June 30, 1998
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF UNITRODE CORPORATION
The following table sets forth the name, business address and
present principal occupation or employment of each director and executive
officer of the Reporting Person. Each such person is a U.S. citizen, and
the business address of each such person is 7 Continental Boulevard,
Merrimack, New Hampshire 03054.
Name and Business Present Principal
Address Occupation
------------------ -----------------
Peter A. Brooke Director of the Reporting Person
Kenneth Hecht Director of the Reporting Person
Louis E. Lataif Director of the Reporting Person
James T. Vanderslice Director of the Reporting Person
Robert L. Gable Director and Chairman of the Reporting
Person
Robert J. Richardson Director, President and Chief Executive
Officer of the Reporting Person
Allan R. Campbell Senior Vice President and General Counsel
of the Reporting Person
S. Kelley MacDonald Vice President Corporate Communications
of the Reporting Person
Patrick J. Moquin Vice President Human Resources of the
Reporting Person
Cosmo S. Trapani Executive Vice President and Chief
Financial Officer of the Reporting Person
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
------- ----------- ----
1 Amendment to Agreement and Plan of Merger, dated as
of June 23, 1998 by and among Unitrode Corporation,
Merrimack Corporation and BENCHMARQ Microelectronics,
Inc., without exhibits thereto.
2 Amendment to Stock Option Agreement, dated as of
June 23, 1998 by and between Unitrode Corporation as
"Grantee" and BENCHMARQ Microelectronics, Inc. as
"Issuer."
3 Amendment to Voting Agreement, dated as of June 23,
1998, by and between Unitrode Corporation and
Alan R. Schuele, Derrell C. Coker, L.J. Sevin,
Harvey B. Cash, Dietrich Erdmann, Jack Kilby and
Charles H. Phipps.
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is being entered into as of June 23, 1998, by and among Unitrode
Corporation, a Maryland corporation (the "Acquiror"), Merrimack
Corporation, a Delaware corporation and a wholly owned subsidiary of the
Acquiror ("Newco"), and BENCHMARQ Microelectronics, Inc., a Delaware
corporation (the "Company").
The Acquiror, Newco and the Company are parties to an Agreement
and Plan of Merger, dated as of March 2, 1998 (the "Agreement"), and desire
to amend certain terms and provisions of the Agreement as set forth
therein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein and the consummation of the transactions
contemplated by the Agreement, the Acquiror, Newco and the Company agree as
follows (with capitalized terms used and not defined herein having their
respective meanings ascribed to them in the Agreement):
1. Defined Terms. (a) The definition of "Acquiror's Disclosure
Letter" as set forth in Section 1.2 of the Agreement is hereby amended to
read in its entirety as follows:
"'Acquiror's Disclosure Letter' will mean a letter of even
date with the Amendment to this Agreement dated as of June 23, 1998, by and
among the Acquiror, Newco and the Company (the "Amendment") delivered by
the Acquiror to the Company concurrently with the execution of the
Amendment, which, among other things, will identify exceptions to the
Acquiror's representations and warranties contained in Article V by
specific section and subsection references."
(b) The definition of "Company's Disclosure Letter" as set forth
in Section 1.2 of the Agreement is hereby amended to read in its entirety
as follows:
"'Company's Disclosure Letter' will mean a letter of even
date with the Amendment delivered by the Company to the Acquiror Companies
concurrently with the execution of the Amendment, which, among other
things, will identify exceptions to the Company's representations and
warranties contained in Article IV by specific section and subsection
references."
(c) The definition of "Exchange Ratio" as set forth in Section
1.2 of the Agreement is hereby amended to read in its entirety as follows:
"'Exchange Ratio' will mean the ratio of conversion of
Company Common Stock into Acquiror Common Stock pursuant to the Merger as
provided in the first sentence of Subsection 3.1(a)."
2. Merger Consideration. (a) Section 3.1(a) of the Agreement
is hereby amended to read in its entirety as follows:
"Subject to the other provisions of this Article III, each share
of Company Common Stock issued and outstanding immediately prior
to the Effective Time (excluding any Company Common Stock
described in Subsection 3.1(c)) will be converted into the right
to receive one (1) share of Acquiror Common Stock (and the
associated Acquiror Right) (the "Exchange Ratio").
Notwithstanding the foregoing, if between the date of this
Agreement and the Effective Time the outstanding shares of the
Acquiror Common Stock or the Company Common Stock shall have been
changed into a different number of shares or a different class,
by reason of any stock dividend, subdivision, reclassification,
recapitalization, split, conversion, consolidation, combination
or exchange of shares, the Exchange Ratio will be correspondingly
adjusted to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, conversion,
consolidation, combination or exchange of shares."
(b) Section 3.2 of the Agreement is hereby amended to read in its
entirety as follows:
"[THIS SECTION INTENTIONALLY LEFT BLANK.]"
3. Representations and Warranties.
(a) Section 4.8(a) of the Agreement is hereby amended to read in
its entirety as follows:
"(a) except as set forth in Subsection 4.8(a) of the
Company's Disclosure Letter, since March 31, 1998,
(i) no event or events (other than any event that is
directly attributable to the prospect of consummation
of the Merger or is of general application to all or a
substantial portion of the Company's industry and other
than any event that is expressly subject to any other
representation or warranty contained in this
Article IV) have to the Knowledge of the Company,
occurred that, individually or in the aggregate, would
constitute or cause a Material Adverse Effect on the
Company and (ii) there have not been any change or
changes (other than any change that is directly
attributable to the prospect of consummation of the
Merger or is of general application to all or a
substantial portion of the Company's industry and other
than any change that is expressly subject to any other
representation or warranty contained in this
Article IV) in the business, condition (financial or
other), results of operations, properties, assets or
liabilities of the Company or its Subsidiaries which
would have, in the aggregate, a Material Adverse Effect
on the Company."
(b) Section 4.22 of the Agreement is hereby amended to read in
its entirety as follows:
"The Board of Directors of the Company has received the opinion
of Prudential Securities, Inc., the Company's financial advisor,
substantially to the effect that, as of June 23, 1998, the
consideration to be received by the holders of Company Common
Stock in the Merger is fair to such holders from a financial
point of view, a copy of which opinion has been provided to the
Acquiror."
(c) Section 5.8(a) of the Agreement is hereby amended to read in
its entirety as follows:
"(a) Except as set forth in Subsection 5.8(a) of the
Acquiror's Disclosure Letter, since May 2, 1998, (i) no
event or events (other than any event that is directly
attributable to the prospect of consummation of the
Merger or is of general application to all or a
substantial portion of the Acquiror's industry and
other than any event that is expressly subject to any
other representation or warranty continued in this
Article V) have to the Knowledge of the Acquiror,
occurred that, individually or in the aggregate, would
constitute or cause a Material Adverse Effect on the
Acquiror and (ii) there have not been any change or
changes (other than any change that is directly
attributable to the prospect of consummation of the
Merger or is of general application to all or a
substantial portion of the Acquiror's industry and
other than any change that is expressly subject to any
other representation or warranty contained in this
Article V) in the business, condition (financial or
other), results of operations, properties, assets or
liabilities of the Acquiror or its Subsidiaries which
would have, in the aggregate, a Material Adverse Effect
on the Acquiror."
(d) Section 5.14 of the Agreement is hereby amended to read in
its entirety as follows:
"The Board of Directors of the Acquiror has received the opinion
of Adams, Harkness & Hill, Inc., the Acquiror's financial
advisor, substantially to the effect that, as of June 23, 1998,
the consideration to be received by the holders of Acquiror
Common Stock in the Merger is fair to such holders from a
financial point of view, a copy of which opinion has been
provided to the Company."
4. Covenants. Section 6.1 of the Agreement is hereby amended in
its entirety to read:
"(a) Each of the Company and the Acquiror hereby covenants and
agrees that, except as set forth in Section 6.1(a) of the
Company's Disclosure Letter or Section 6.1(a) of the Acquiror's
Disclosure Letter, as the case may be, prior to the Effective
Time, unless otherwise expressly contemplated by this Agreement
or consented to in writing by the other, it will and will cause
its Subsidiaries to operate its business in the usual and
ordinary course consistent with past practice and use all
reasonable efforts to preserve substantially intact its business
organization, maintain its rights and franchises, retain the
services of its respective key employees and preserve the
goodwill of those having business relationships with it,
including customers and suppliers. The Company further covenants
and agrees that prior to the Effective Time, except as otherwise
consented to in writing by the Acquiror, it will and will cause
its Subsidiaries to maintain and keep its properties and assets
in as good repair and condition as at present, ordinary wear and
tear excepted, and use all reasonable efforts to keep in full
force and effect insurance and bonds comparable in amount and
scope of coverage to that currently maintained, except in each
case for any matters that, individually or in the aggregate,
would not have a Material Adverse Effect on the Company."
5. Termination. (a) Section 9.1(h) of the Agreement is hereby
amended to read in its entirety as follows:
"[THIS SECTION INTENTIONALLY LEFT BLANK.]"
(b) Section 9.1(j) of the Agreement is hereby amended to read in
its entirety as follows:
"(j) by the Company, if from and after the date of the
Amendment, the Board of Directors of the Acquiror fails
to recommend approval by the stockholders of the
Acquiror of the issuance of shares of Acquiror Common
Stock pursuant to this Agreement or withdraws or
modifies (or publicly announces an intention to
withdraw or modify) its approval and recommendation in
a manner materially adverse to the Company or shall
have resolved to do any of the foregoing;".
6. Termination Fees. (a) Section 9.2(b) of the Agreement is
hereby amended to read in its entirety as follows:
"(b) If this Agreement is terminated: (i) by the Acquiror
pursuant to clause (i) of Subsection 9.1(i) hereof (except if
circumstances exist that would allow the Company to terminate
this Agreement pursuant to Subsection 9.1(c) hereof as a result
of a Material Adverse Effect on the Acquiror); (ii) by the
Acquiror pursuant to Subsection 9.1(i) hereof under any
circumstances other than those described in clause (i) of this
Subsection 9.2(b); (iii) by Acquiror or Company pursuant to
Subsection 9.1(f) hereof because of the failure to obtain the
required approval from the Company stockholders and at the time
of such termination or prior to the Company Stockholders' Meeting
there shall have been an Acquisition Proposal (whether or not
such offer, proposal, announcement or agreement shall have been
rejected or shall have been withdrawn prior to the time of such
termination or of the Company Stockholders' Meeting); or (iv) by
Acquiror as a result of Company's material breach of Section 7.3
or Subsection 7.1(a) hereof, the Company shall promptly pay to
Acquiror or the Company by wire transfer of same day funds not
later than two Business Days after the date of such termination a
termination fee of $4,528,000 (the "Termination Fee"), provided,
however, that if this Agreement is terminated by Acquiror or the
Company pursuant to Subsection 9.1(f) hereof under the
circumstances described in Subsection 9.2(b)(iii) hereof, and at
the time of such termination the stockholders of the Acquiror
shall have failed to approve the issuance of Acquiror Common
Stock pursuant to this Agreement, the Acquiror shall not be
entitled to the Termination Fee."
(b) Section 9.2(c) of the Agreement is hereby amended to read
in its entirety as follows:
"(c) If this Agreement is terminated by the Company
pursuant to: (i) Subsection 9.1(c) hereof as a result
of the Acquiror's material breach of Subsection 7.1(b)
or Section 7.3 hereof or (ii) Subsection 9.1(j) hereof
(except in the case of any termination pursuant to
Subsection 9.1(j) hereof described below), the Acquiror
shall promptly pay to the Company by wire transfer of
same day funds not later than two Business Days after
written demand therefor, up to $500,000 to reimburse
the Company for up to that amount of the Company's
actual, verifiable out-of-pocket expenses incurred by
the Company in connection with the Merger. If this
Agreement is terminated by the Company pursuant to
Subsection 9.1(g), the Acquiror shall promptly pay to
the Company by wire transfer of same day funds not
later than two Business Days after written demand
therefor, up to $250,000 to reimburse the Company for
up to that amount of the Company's actual, verifiable
out-of-pocket expenses incurred by the Company in
connection with the Merger. If this Agreement is
terminated by the Company pursuant to Subsection 9.1(j)
hereof, and at the time of such termination there shall
have been an Acquiror Acquisition Proposal (whether or
not such offer, proposal, announcement or agreement
shall have been rejected or shall have been withdrawn
prior to the time of such termination), and the
stockholders of Acquiror shall have failed to approve
the issuance of Acquiror Common Stock pursuant to this
Agreement, the Acquiror shall promptly pay to the
Company by wire transfer of same day funds not later
than two Business Days after the date of such
termination fee of $2,000,000.
7. Agreement in Full Force and Effect.
(a) The Company hereby represents and warrants to the Acquiror
Companies that (i) each of the representations and warranties of the
Company contained in the Agreement, as amended hereby, is true and correct
as of the date hereof and (ii) each of the agreements and covenants of the
Company required by the Agreement, as amended hereby, to have been complied
with prior to the date hereof has been complied with in all respects.
(b) The Acquiror Companies hereby represent and warrant to the
Company that (i) each of the representations and warranties of the Acquiror
Companies contained in the Agreement, as amended hereby, is true and
correct as of the date hereof and (ii) each of the agreements and covenants
of the Acquiror Companies required by the Agreement, as amended hereby, to
have been complied with prior to the date hereof has been complied with in
all respects.
(c) The Agreement, as amended by this Amendment, shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be signed by their duly authorized officers as of the date first above
written.
UNITRODE CORPORATION
By________________________
Name:
Title:
MERRIMACK CORPORATION
By________________________
Name:
Title:
BENCHMARQ MICROELECTRONICS,
INC.
By__________________________
Name:
Title:
AMENDMENT TO STOCK OPTION AGREEMENT
THIS AMENDMENT TO STOCK OPTION AGREEMENT (this "Amendment") is
being entered into as of June 23, 1998, by and between Unitrode
Corporation, a Maryland corporation ("Grantee"), and BENCHMARQ
Microelectronics, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company, Grantee and Merrimack Corporation, a Delaware
corporation and a wholly owned subsidiary of Grantee ("Newco"), entered
into an Agreement and Plan of Merger dated as of March 2, 1998 (the
"Original Agreement"), which provides, among other things, that Newco shall
be merged with and into the Company pursuant to the terms and conditions
thereof; and
WHEREAS, as an essential condition and inducement to Grantee to enter
into the Original Agreement and in consideration therefor, the Company
entered into a Stock Option Agreement as of March 2, 1998 (the "Stock
Option Agreement"); and
WHEREAS, the Company, Grantee and Newco are contemporaneously with the
execution of this Amendment entering into an Amendment to the Original
Agreement amending certain provisions of the Original Agreement (as so
amended, the "Amended Agreement"); and
WHEREAS, as an essential condition and inducement to Grantee to enter
into the Amended Agreement and in consideration therefor, the Company has
agreed to enter into this Amendment;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and in the Amended Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows (with capitalized terms used and not defined herein having their
respective meanings ascribed to them in the Amended Agreement):
1. References to the Merger Agreement. All references to the
Merger Agreement in the Stock Option Agreement are hereby amended to refer
to the Amended Agreement.
2. Grant of Option. Section 1 of the Stock Option Agreement
is amended in its entirety to read as follows:
"The Company hereby grants to Grantee an unconditional, irrevocable
option (the "Option") to purchase, subject to the terms hereof, 955,158
shares (such shares being referred to herein as the "Option Shares") of
fully paid and nonassessable common stock, par value $.001 per share, of
the Company ("Company Common Stock"), equal to approximately ten percent
(10%) of the number of shares of Company Common Stock issued and
outstanding (on a fully diluted basis after giving effect to the exercise
of the Option) as of March 2, 1998 at a purchase price of $11.13 per share
of Company Common Stock, as adjusted in accordance with the provisions of
Section 8 (such price, as adjusted if applicable, the "Option Price")."
3. Option Termination Events. Section 2(b)(ii) of the Stock
Option Agreement is amended in its entirety to read as follows:
"(ii) termination of the Merger Agreement (A) by either party pursuant
to Subsection 9.1(d) of the Merger Agreement, provided that the matter
giving rise to the Order (as defined in the Merger Agreement) providing the
basis for termination under Subsection 9.1(d) of the Merger Agreement shall
not have been initiated by the Company or any Person who initiates an
Acquisition Proposal (as such term is defined in the Merger Agreement), (B)
by the Company pursuant to Subsection 9.1(c) or Subsection 9.1(j) of the
Merger Agreement, (C) by either the Company or the Grantee pursuant to
Subsection 9.1(g) of the Merger Agreement, (D) by both parties pursuant to
Subsection 9.1(a) of the Merger Agreement, (E) by the Company or the
Grantee pursuant to Subsection 9.1(e) of the Merger Agreement (if there
exists circumstances that would permit termination of the Merger Agreement
by the Company pursuant to Subsection 9.1(e) of the Merger Agreement), (F)
by the Grantee pursuant to Subsection 9.1(i)(i) of the Merger Agreement (if
circumstances exist that would allow the Company to terminate the Merger
Agreement pursuant to Subsection 9.1(c) of the Merger Agreement as a result
of a change that would have a Material Adverse Effect with respect to
Grantee) or (G) by either party pursuant to any other provision of the
Merger Agreement; provided (in the case of Subsection 2(b)(ii)(G) hereof)
such termination occurs prior to the occurrence of an Acquisition
Proposal."
4. Stock Option Agreement in Full Force and Effect. The Stock
Option Agreement, as amended by this Amendment, shall continue in full
force and effect.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
BENCHMARQ MICROELECTRONICS, INC.
By:__________________________________
Name: Alan R. Schuele
Title: President and Chief Executive
Officer
UNITRODE CORPORATION
By:__________________________________
Name: Robert J. Richardson
Title: President and Chief Executive
Officer
AMENDMENT TO VOTING AGREEMENT
THIS AMENDMENT TO VOTING AGREEMENT (this "Amendment") is being
entered into as of June 23, 1998, by and among Alan R. Schuele, Derrell C.
Coker, L.J. Sevin, Harvey B. Cash, Dietrich Erdmann, Jack Kilby and Charles
H. Phipps (the "Stockholders"), and Unitrode Corporation, a Maryland
corporation ("Unitrode").
WHEREAS, BENCHMARQ Microelectronics, Inc., a Delaware corporation (the
"Company"), Unitrode and Merrimack Corporation, a Delaware corporation and
a wholly owned subsidiary of Unitrode, entered into an Agreement and Plan
Merger dated as of March 2, 1998 (the "Original Agreement"), which
provides, among other things, that Newco shall be merged with and into the
Company pursuant to the terms and conditions thereof; and
WHEREAS, as an essential condition and inducement to Unitrode to enter
into the Original Agreement and in consideration therefor, the Stockholders
entered into a Voting Agreement dated as of March 2, 1998 (the "Voting
Agreement"); and
WHEREAS, the Company, Unitrode and Newco are contemporaneously with
the execution of this Amendment entering into an Amendment to the Original
Agreement amending certain terms and provisions of the Original Agreement
(as so amended, the "Amended Agreement"); and
WHEREAS, as an essential condition and inducement to Unitrode to enter
into the Amended Agreement and in consideration therefor, the Stockholders
have agreed to enter into this Amendment; 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 Amendment with
respect to such shares of Company Common Stock and options to purchase
shares of Company Common Stock;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and in the Amended Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows (with capitalized terms used and not defined herein having their
respective meanings ascribed to them in the Amended Agreement):
1. References to the Merger Agreement. All references to the
Merger Agreement in the Voting Agreement are hereby amended to refer to the
Amended Agreement.
2. Voting Agreement in Full Force and Effect. The Voting
Agreement, as amended by this Amendment, shall continue in full force and
effect.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
___________________________
Alan R. Schuele
__________________________
Derrell C. Coker
__________________________
L.J. Sevin
__________________________
Harvey B. Cash
__________________________
Dietrich Erdmann
__________________________
Jack Kilby
__________________________
Charles H. Phipps
UNITRODE CORPORATION
By:_________________________
Name: Robert J. Richardson
Title: President and Chief Executive
Officer
VOTING AGREEMENT
SCHEDULE A
Number of Shares of Company Common
Stockholder: Stock Owned by Stockholder:
L.J. Sevin 695,120
Jack Kilby 6,250
Derrell C. Coker 72,755
Dietrich Erdmann 605,212
Harvey B. Cash 43,850
Charles H. Phipps 40,422
Alan R. Schuele 0
