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EXHIBIT
10.1
V OTING A
GREEMENT
T HIS S
TOCKHOLDER V OTING A
GREEMENT (this “ Agreement
”) is made and entered into as of December 13, 2007, by
and among ON S EMICONDUCTOR C
ORPORATION , a Delaware corporation (“
Parent ”), AMIS H OLDINGS , I
NC . , a Delaware corporation (the “
Company ”) (only with respect to
Section 2(b) hereof), and the undersigned stockholder
(“ Stockholder ”) of the
Company.
R
ECITALS
A. Concurrently with the
execution and delivery hereof, Parent, Apple Acquisition
Corporation, a Delaware corporation and an indirect wholly owned
subsidiary of Parent (“ Merger Sub ”),
and the Company are entering into an Agreement and Plan of Merger
and Reorganization of even date herewith (as it may be amended or
supplemented from time to time pursuant to the terms thereof, the
“ Merger Agreement ”), which provides for
the merger (the “ Merger ”) of Merger Sub
with and into the Company in accordance with its terms ( the
Merger, Merger Agreement and the transactions contemplated thereby
referred to collectively as the “ Proposed
Transaction ”).
B. Stockholder has sole voting
power over such number of shares of each class of capital stock of
the Company beneficially owned (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) by Stockholder as is
indicated on the signature page of this Agreement.
C. In consideration of the
execution and delivery of the Merger Agreement by Parent and Merger
Sub, Stockholder desires to agree to vote the Shares (as defined
herein) over which Stockholder has sole voting power so as to
facilitate the consummation of the Merger.
N OW , T
HEREFORE , intending to be legally bound, the
parties hereto hereby agree as follows:
1. Certain Definitions
.
(a) Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed
thereto in the Merger Agreement. For all purposes of and under this
Agreement, the following terms shall have the following respective
meanings:
“ Constructive
Sale ” means with respect to any security, a short
sale with respect to such security, entering into or acquiring an
offsetting derivative contract with respect to such security,
entering into or acquiring a futures or forward contract to deliver
such security or entering into any other hedging or other
derivative transaction that has the effect of either directly or
indirectly materially reducing the economic benefits or risks of
ownership.
“ Shares
” means (i) all outstanding shares of capital stock of
the Company owned, beneficially or of record, by Stockholder as of
the date hereof, and (ii) all additional outstanding shares of
capital stock of the Company acquired by Stockholder, beneficially
or of record, during the period commencing with the execution and
delivery of this Agreement and expiring on the Expiration Date (as
such term is defined in Section 7 below), in the case
of each of clauses (i) and (ii) as to which (and only as
to which) Stockholder has sole voting power; but in each case
excluding shares of capital stock of the Company that, by virtue of
Stockholder’s ownership of options or other convertible
securities, are deemed to be beneficially owned by Stockholder
pursuant to Rules 13d-3(d)(1)(i)(A) or (B) prior to the time
at which Stockholder exercises such options or other convertible
securities and receives the underlying capital stock of the
Company.
“
Transfer ” means, with respect to any security,
the direct or indirect assignment, sale, transfer, tender,
exchange, pledge, hypothecation, or the gift, placement in trust,
or the Constructive Sale or other disposition of such security
(excluding transfers: (i) by testamentary or intestate
succession, (ii) otherwise by operation of law, or
(iii) under any written trading plan adopted prior to the date
of this Agreement under Rule 10b5-1 of the Securities Exchange Act
of 1934, as amended) or any right, title or interest therein
(including, but not limited to, any right or power to vote to which
the holder thereof may be entitled, whether such right or power is
granted by proxy or otherwise), or the record or beneficial
ownership thereof, and each agreement, arrangement or
understanding, whether or not in writing, to effect any of the
foregoing.
2. Transfer and Voting
Restrictions .
(a) At all times during the
period commencing with the execution and delivery of this Agreement
and expiring on the Expiration Date, Stockholder shall not, except
in connection with the Merger, Transfer any of the Shares, or enter
into an agreement, commitment or other arrangement with respect
thereto. Notwithstanding the foregoing or anything to the contrary
set forth in this Agreement, Stockholder may Transfer any or all of
the Shares (i) by will, or by operation of law, in which case
this Agreement shall bind the transferee, or (ii) in
connection with estate and charitable planning purposes, including
Transfers to relatives, trusts and charitable organizations, so
long as the transferee, prior to such Transfer executes a
counterpart of this Agreement (with such modifications as Parent
may reasonably request solely to reflect such transfer).
(b) Stockholder understands
and agrees that if Stockholder attempts to Transfer, vote or
provide any other person with the authority to vote any of the
Shares other than in compliance with this Agreement, the Company
shall not, and Stockholder hereby unconditionally and irrevocably
instructs the Company to not, (i) permit any such Transfer on
its books and records, (ii) issue a new certificate
representing any of the Shares or (iii) record such vote, in
each case, unless and until Stockholder shall have complied with
the terms of this Agreement. Each stock certificate evidencing
Shares that is issued in the name of Stockholder on or after the
date of this Agreement shall bear a legend indicating that such
Shares are subject to the terms of this Agreement and any
transferee of the Shares evidenced by the stock certificate takes
the Shares subject to the terms of this Agreement.
(c) Except as otherwise
permitted by this Agreement or by order of a court of competent
jurisdiction, each Stockholder will not commit any act that could
restrict or affect such Stockholder’s legal power, authority
and right to vote all of the Shares then owned of record or
beneficially by Stockholder or otherwise prevent or disable
Stockholder from performing any of his obligations under this
Agreement. Without limiting the generality of the foregoing, except
for this Agreement and as otherwise permitted by this Agreement,
each Stockholder will not enter into any voting agreement with any
Person with respect to any of the Shares, grant any Person any
proxy (revocable or
2
irrevocable) or power of
attorney with respect to any of the Shares, deposit any of the
Shares in a voting trust or otherwise enter into any agreement or
arrangement with any Person limiting or affecting
Stockholder’s legal power, authority or right to vote the
Shares in favor of the approval of the Proposed
Transaction.
3. Agreement to Vote
Shares .
(a) Prior to the Expiration
Date, at every meeting of the stockholders of the Company called,
and at every adjournment or postponement thereof, and on every
action or approval by written consent of the stockholders of the
Company, Stockholder (in Stockholder’s capacity as such)
shall appear at the meeting or otherwise cause the Shares to be
present thereat for purposes of establishing a quorum and, to the
extent not voted by the Persons appointed as proxies pursuant to
this Agreement, vote (i) in favor of approval of the Proposed
Transaction, (ii) against the approval or adoption of any
proposal made in opposition to, or in competition with, the
Proposed Transaction, and (iii) against any of the following
(to the extent unrelated to the Proposed Transaction): (A) any
merger, consolidation or business combination involving the Company
or any of its subsidiaries other than the Proposed Transaction;
(B) any sale, lease or transfer of all or substantially all of
the assets of the Company or any of its subsidiaries; (C) any
reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any of its subsidiaries; or
(D) any other action that is intended, or could reasonably be
expected, to otherwise impede, interfere with, delay, postpone,
discourage or adversely affect the consummation of the Proposed
Transaction.
(b) If Stockholder is the
beneficial owner, but not the record holder, of the Shares,
Stockholder agrees to take all actions necessary to cause the
record holder and any nominees to vote all of the Shares in
accordance with Section 3(a) .
4. Grant of Irrevocable
Proxy .
(a) Stockholder hereby
irrevocably (to the fullest extent permitted by law) grants to, and
appoints, Parent and each of its executive officers and any of
them, in their capacities as officers of Parent (the “
Grantees ”), as Stockholder’s proxy and
attorney-in-fact (with full power of substitution and
re-substitution), for and in the name, place and stead of
Stockholder, to vote the Shares, to instruct nominees or record
holders to vote the Shares, or grant a consent or approval or
dissent or disapproval in respect of such Shares in accordance with
Section 3 hereof and, in the discretion of the
Grantees, with respect to any proposed adjournments or
postponements of any meeting of stockholders of the Company at
which any of the matters described in Section 3 hereof
is to be considered.
(b) Stockholder represents
that any proxies heretofore given in respect of the Shares that may
still be in effect are not irrevocable, and such proxies are hereby
revoked.
(c) Stockholder hereby
affirms that the irrevocable proxy set forth in this
Section 4 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of Stockholder under this
Agreement. Stockholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be
revoked. Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212
of the Delaware General Corporation Law. Notwithstanding this
Section 4(c) , the proxy granted by Stockholder shall
be revoked upon termination
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