IRREVOCABLE VOTING TRUST AGREEMENT
This IRREVOCABLE VOTING TRUST AGREEMENT (this "Agreement") is made as of
this 13th day of January, 1998 by and between Raytheon TI Systems, Inc., a
Delaware corporation (the "Seller"), and State Street Bank & Trust Company, a
Massachusetts trust company, and its successors in trust (the "Trustee").
WHEREAS, Seller is subject to a Final Judgment filed in the US District
Court for the district of Columbia on July 2, 1997 in connection with the
matter of United States of America v. Raytheon Company, et al., Civil Action
No. 97515 (the "Final Judgment") related to the sale of the MMIC Business (as
defined in the Final Judgment) currently owned and operated by Seller in
accordance with a Hold Separate and Partition Plan entered in the same case on
July 2, 1997;
WHEREAS, pursuant to and in accordance with the Final Judgment, Seller
and TriQuint Semiconductor, Inc., a Delaware corporation (the "Buyer"), have
entered into an Asset Purchase Agreement dated as of January 8, 1998 (the
"Asset Purchase Agreement") providing for the sale of
Seller's MMIC Business;
WHEREAS, in connection with the Asset Purchase Agreement the Buyer will
issue to the Seller as partial consideration for the MMIC Business shares of
the Buyer's Common Stock, par value $.001 per share (the "Voting Stock");
WHEREAS, in connection with the Final Order the Department of Justice has
required that the Seller place all such shares of Voting Stock received from
the Buyer into trust in order to divest itself of voting power with respect to
the Voting Stock;
WHEREAS, the Trustee has consented to act under this Agreement in the
manner and for the purposes provided herein; and
NOW, THEREFORE, in consideration of the covenants, promises and
agreements herein which are mutually and severally made by, and to be kept,
observed and performed by the parties hereto, it is hereby agreed as follows:
1. Transfer of Shares of Voting Stock to Trustee.
1.1. The Seller hereby assigns and transfers (or, promptly upon receipt
hereof, will promptly assign and transfer) to the Trustee the Voting Stock to
be received by the Trustee pursuant to the Asset Purchase Agreement (at any
time the Voting Stock then held by the Trustee hereunder, the "Shares").
1.2. It is hereby expressly acknowledged and agreed by the parties to
this Agreement that (i) the transfer of any and all shares of Voting Stock to
the Trustee and the registration of such shares of Voting Stock in the name of
the Trustee pursuant to this Section 1 are being effected solely for purposes
of implementing this Agreement and (ii) the Trustee shall hold such shares of
Voting Stock subject to all of the provisions of this Agreement.
2. Withdrawal or Release of Shares of Voting Stock.
2.1. No shares of Voting Stock shall be released or withdrawn from the
trust established by this Agreement, or shall be sold, assigned or transferred,
except as directed by the Seller in compliance with this Agreement.
2.2. The Trustee agrees to cooperate with the Seller, and to enter into
any agreement or execute any instruments required by the Seller, to effect any
sale, assignment or transfer of the Shares, all at the expense of the Seller in
accordance with Section 6. In the event that the Seller directs the Trustee to
transfer any of the Shares to the Seller, the Trustee shall not do so unless it
has received a written certification from an officer of the Seller certifying
that such transfer to the Seller does not conflict with or violate the Final
Order. No such certification shall be required for any transfer of Shares to a
third party. The Seller shall indemnify the Trustee pursuant to Section 6 below
for any losses, costs or expenses incurred by the Trustee in connection with or
as a result of any act performed by the Trustee pursuant to this Section 2 at
the request or direction of the Seller.
2.3. In order to effect the withdrawal or release of any Shares from this
Agreement pursuant to this Section 2, or any transfer of Shares pursuant to
this Section 2, the Trustee shall promptly, upon written request by the Seller
and receipt of a certificate of the Seller if required pursuant to Section 2.2
above, take all such steps as shall be reasonably required to (i) assign and
transfer to the applicable transferee (or the Seller) the number of Shares
which are to be withdrawn, released or transferred and (ii) either (A) cause a
stock certificate or stock certificates representing such Shares to be issued
in the name of such transferee (or the Seller) or (B) deliver or cause to be
delivered to such transferee (or the Seller) the stock certificate or stock
certificates representing such Shares, together with duly executed stock powers
for the transfer of such Shares to such transferee (or the Seller).
2.4. Upon the withdrawal, release or transfer of any Shares pursuant to
this Section 2, the Trustee shall amend Schedule 1 hereof to reflect such
withdrawal, release or transfer.
2.5. The Trustee agrees not to effect any sale, assignment or transfer of
any Shares, or any release or withdrawal of Shares, except for a sale,
assignment or transfer, or a release or withdrawal, of Shares effected as
provided above in this Section 2.
3. Dividends; Proceeds upon Transfers
of Shares of Voting Stock.
3.1. If the Buyer shall declare or pay a dividend on the Shares, whether
in cash or other property (other than property described in Section 3.2), the
Trustee shall pay or distribute such dividend to the Seller promptly upon
receipt of such dividend by the Trustee.
3.2. If the Buyer shall declare or pay a dividend on the Shares in voting
capital stock (or securities convertible into or exchangeable for voting
capital stock ), or shall otherwise distribute shares of voting capital stock
(or securities convertible into or exchangeable for voting capital stock) on
the Shares, the Trustee shall (i) receive and hold such shares of voting
capital stock or other securities subject to the terms of this Agreement and
(ii) amend Schedule 1 to include such additional shares of voting capital
stock, whereupon such additional shares of voting capital stock shall for all
purposes constitute "Shares" hereunder.
3.3. Upon any sale, assignment, conversion, redemption or other transfer
of the Shares, whether pursuant to merger, sale of the Shares, recapitalization
or reorganization involving the Shares, the Trustee will receive all
securities, cash and other property deliverable in respect of or issuable upon
such Shares, and will (i) distribute to the Seller all cash, securities and
other property (other than voting capital stock and securities convertible into
or exchangeable for voting capital stock), (ii) hold such voting capital stock
and other securities in accordance with this Agreement, and (iii) amend
Schedule 1 to include such additional shares of voting capital stock and other
securities, whereupon such additional shares of voting capital stock and other
securities shall constitute "Shares" hereunder.
3.4. With respect to any matter for which any vote or consent is
requested from holders of Voting Stock, the Trustee agrees that it will vote
the Shares as nearly as practicable in the same proportion as the Buyer's other
holders of the applicable class of Voting Securities with respect to such
matter. The Trustee may after the date hereof and after receipt of any
additional Voting Stock in trust hereunder, at the expense of the Seller, grant
an irrevocable proxy in respect of the Shares held in trust hereunder to an
officer or other designee of the Buyer, but only if such proxy is consistent
with the preceding sentence. Any irrevocable proxy entered into by the Trustee
in accordance with this Section 3.4 shall terminate upon any sale, assignment
or transfer of such Shares, and upon any release or withdrawal of such Shares
from this Agreement.
4. Trustee: In General; Powers.
4.1. The Trustee hereby accepts the trust hereunder, subject to all the
terms, provisions and conditions set forth herein, and agrees that it will
exercise the powers and perform the duties of a Trustee as set forth herein.
4.2. The Trustee shall have full power, at any time and from time to
time, to cause certificates of shares of Voting Stock held by it as Trustee
hereunder to be transferred on the books of the Buyer into its own name as
Trustee hereunder; provided, however, that as holder of such shares of Voting
Stock the Trustee shall assume no liability as stockholder, its interest
hereunder being solely that of Trustee.
4.3. The Trustee irrevocably shall, in person or by its nominee, in
respect of any and all such Shares held by the Trustee under this Agreement,
and subject to the terms hereof (including Section 3.4), possess and be
entitled to exercise all stockholder rights, including the right to vote and to
give any consent for every purpose as fully as any stockholder might do and to
waive any stockholder's rights or privileges in respect thereof and to consent
to any act of the Buyer, as though absolute owner of such Voting Stock, and
Trustee shall, subject to the terms hereof (including Section 3.4), exercise
all such rights in its absolute discretion. This irrevocable right to vote
shall include, without being limited, the right to vote in favor of or against
the dissolution, reorganization, merger, consolidation or recapitalization of
the Buyer.
4.4. The Trustee is hereby expressly authorized to do any and all acts
which it deems reasonably necessary or advisable in connection with the
carrying out of the terms, provisions and conditions of this Agreement.
5. Trustee: Procedure.
5.1. The Trustee may vote or may act in person, by consent or by proxy.
5.2. The Trustee may employ counsel and agents whose reasonable expenses
and compensation shall be paid by the Trustee and shall be chargeable as a
proper expense to the Seller, as provided in Section 6.2 hereof.
5.3. The Trustee may resign as Trustee hereunder upon delivery to the
Seller of a letter stating the intention of the Trustee to resign and stating
the date (which shall be not less than ten days after the date of delivery of
such letter) of the effectiveness of such resignation. A successor Trustee
shall be named by the Seller on or prior to such tenth day.
6. Trustee: Compensation, Expenses, Indemnification.
6.1. The Trustee shall be entitled to compensation for services rendered
or duties performed under this Agreement as provided in Schedule 2 hereto.
6.2. (a) The Seller shall reimburse the Trustee upon request for all
reasonable disbursements and expenses incurred or made by it in connection
with the performance of its duties hereunder. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Seller shall indemnify the Trustee against any and all
losses and liabilities incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Agreement,
including liabilities incurred by Trustee in connection with the
enforcement of this Agreement against the Seller (including this Section
6), and in connection with defending itself against any claim asserted by
any third party. The Trustee shall notify the Seller promptly of any claim
for which it may seek indemnity. Any failure or delay by the Trustee so to
notify the Seller shall not relieve the Seller of its obligations
hereunder, except to the extent the Seller is actually disadvantaged by
such failure or delay. The Seller shall have the right to control any
litigation arising out of any such claim (including the selection of
counsel reasonably acceptable to the Trustee in respect thereof). The
Trustee may engage one counsel of its choice to participate in any
litigation arising out of any such claim (subject to the foregoing
sentence), and the Seller will reimburse the Trustee for any reasonable
costs of such counsel's participation.
(c) The obligations of the Seller under this Section 6 shall survive
the resignation or removal of the trustee and the satisfaction and
discharge or termination of this Agreement.
(d) Notwithstanding subparagraphs (a) or (b) above, the Seller need
not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee or the Trustee's agents or counsel through its or
their own gross negligence or willful misconduct. The Trustee shall not be
liable to any Seller for any act or failure to act under this Agreement,
except for any such act or failure to act that constitutes willful
misconduct or gross negligence.
6.3. The Trustee shall not incur or be subject to any liability or
responsibility as stockholder, trustee or otherwise by reason of any act,
failure to act, error of judgment, error of law or other error under this
Agreement, except for its own gross negligence or willful misconduct.
6.4. The Trustee shall not be required to give any bond for the faithful
performance and discharge of its duties hereunder.
7. Successor Trustees.
7.1. In the event of the death, disability, resignation or refusal to act
of the Trustee under the provisions of this Agreement, a successor Trustee
shall be designated or appointed by the Seller.
7.2. Any successor Trustee appointed or designated under the provisions
of this Section 7 shall succeed to and have all of the rights, powers,
privileges and duties of the Trustee named herein, with the same force and
effect as though such successor Trustee had originally been a party to this
Agreement.
7.3. Any corporation or association which succeeds to the corporate trust
business of the Trustee as a whole or substantially as a whole, whether by
sale, merger, consolidation or otherwise, shall thereby become vested with all
the property, rights and powers of the Trustee under this Agreement, without
any further act or conveyance.
8. Termination; Amendment.
8.1. This Agreement and the trust established hereby, unless sooner
terminated by law or in accordance with Section 8.2 hereof, shall terminate on
December 31, 2008.
8.2. This Agreement shall terminate prior to the date specified in
Section 8.1 upon the withdrawal or release of all Shares held by the Trustee
under this Agreement pursuant to Section 2 hereof.
8.3. This Agreement may be amended only by a written instrument signed by
the Seller and the Trustee.
9. Successors and Assigns.
All of the terms, provisions and conditions of this Agreement shall apply
to, be binding upon and inure to the benefit of (i) the Trustee and any
successor Trustee appointed or designated under the provisions of Section 7
hereof and (ii) the Seller and its successors or assigns.
10. Governing Law.
The validity, enforceability and interpretation of any and all of the
provisions of this Agreement issued hereunder shall be determined in accordance
with and governed by the internal substantive laws of The Commonwealth of
Massachusetts.
11. Notices.
Any offer, acceptance, notice of communication required or permitted to
be given pursuant to this Agreement shall be in writing and unless otherwise
provided shall be deemed to have been duly and sufficiently given for all
purposes if delivered personally to the party or to an officer, trustee or
other representative of the party to whom such notice shall be directed or if
sent by first-class mail, postage prepaid, to such party's regular business
address, or such other address as such party may designate by notice to the
Trustee.
If to the Trustee,
State Street Bank & Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Seller:
Raytheon TI Systems, Inc.
c/o Raytheon Company
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
12. Agreement.
12.1.This Agreement may be executed in any number of counterparts, each
of which shall be an original and all of which, taken together, shall
constitute but one and the same instrument. This Agreement shall become
effective as of January 13, 1998.
12.2.This Agreement contains the entire agreement and understanding of
the parties with respect to the transactions contemplated hereby. No prior
agreement, whether written or oral, shall be construed to change, amend, alter,
repeal or invalidate this Agreement.
13. Separability.
If any provision of this Agreement issued hereunder shall, in whole or in
part, prove to be invalid for any reason, such invalidity shall affect only the
portion of such provision which shall be invalid, and in all other respects
this Agreement shall stand as if such invalid provision had not been made, and
they shall fail to the extent, and only to the extent, of such invalid
provision, and no other portion or provision of this Agreement shall be
invalidated, impaired or affected thereby.
[Remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed and delivered, as an instrument under seal, as of the date
first above written.
THE SELLER:
RAYTHEON TI SYSTEMS, INC.
By:/s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Controller
THE TRUSTEE:
STATE STREET BANK AND TRUST
COMPANY
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Schedule 1
The Shares
Certificate No. No. of Shares
FBU1817 844,613
Schedule 2
Compensation
See Attached
