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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

LogicVision, Inc.

Date:

2004

Size:

Preview shows 35KB of 190KB total

Price:

$81

ID:

#1221142

► Plans ► Agreements ► Agreements & Plans of Merger
► Technology ► Semiconductors

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AGREEMENT AND PLAN OF MERGER

Among

LOGICVISION, INC.,

SIGNAL ACQUISITION CORPORATION

and

SIVERION, INC.

October 13, 2004

	Page

ARTICLE I THE MERGER	1
1.1 The Merger; the Second Step Merger	1
1.2 Closing	2
1.3 Effective Time	2
1.4 Corporate Organization	2

ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE COMPANY	2
2.1 Effect on Company Shares	2
2.2 Termination of Stock Options; Acceleration of Stock Options	8
2.3 Escrowed Consideration	9
2.4 Surrender and Payment	9
2.5 Dissenting Shares	10
2.6 Adjustments	11
2.7 Fractional Shares	11
2.8 Withholding Rights	11
2.9 Lost Certificates	11
2.10 Additional Cash Consideration Procedures	11

ARTICLE III THE SURVIVING CORPORATION	12
3.1 Certificate of Incorporation	12
3.2 Bylaws	12
3.3 Directors and Officers	12

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY	12
4.1 Organization and Qualification	12
4.2 Capital Structure	13
4.3 Subsidiaries; Equity Investments	14
4.4 Authority	14
4.5 No Conflict with Other Instruments	15
4.6 Consents	15
4.7 Financial Statements	16
4.8 Absence of Changes	16
4.9 Properties	18
4.10 Environmental Matters	18
4.11 Taxes	19
4.12 Employees and Employee Benefit Plans	21
4.13 Labor Matters	23
4.14 Compliance with Law	23
4.15 Litigation	23

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4.16 Contracts	23
4.17 No Default	24
4.18 Proprietary Rights	24
4.19 Insurance	27
4.20 Brokers or Finders	27
4.21 Related Parties	27
4.22 Certain Advances	28
4.23 Receivables	28
4.24 Bank Accounts, Powers, etc.	28
4.25 Underlying Documents	28
4.26 No Misleading Statements	28
4.27 Information Statement	29

ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUBSIDIARY	29
5.1 Organization	29
5.2 Authority	29
5.3 No Conflict with Other Instruments	30
5.4 Consents	30
5.5 SEC Documents	30
5.6 Shares of Parent Common	31
5.7 Brokers or Finders	31

ARTICLE VI CONDUCT PRIOR TO THE EFFECTIVE TIME	31
6.1 Conduct of Business of the Company	31
6.2 No Solicitation	33
6.3 Strategic Agreements	35

ARTICLE VII ADDITIONAL AGREEMENTS	35
7.1 Approval of the Company Stockholders	35
7.2 Access to Information; Interim Financial Information	36
7.3 Confidentiality	36
7.4 Expenses	36
7.5 Public Disclosure	36
7.6 FIRPTA Compliance	36
7.7 Reasonable Efforts	36
7.8 Conduct; Notification of Certain Matters	37
7.9 Tax-Free Reorganization	37
7.10 Lock-Up Agreements	38
7.11 Sale of Shares	38
7.12 Blue Sky Laws	38
7.13 Company Employee Benefit Plans	38
7.14 2002 Equity Incentive Plan	38
7.15 Legal Compliance	38

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7.16 Additional Documents and Further Assurances	39

ARTICLE VIII CONDITIONS TO THE MERGER	39
8.1 Conditions to Obligations of Each Party to Effect the Merger	39
8.2 Additional Conditions to Obligations of the Company	39
8.3 Additional Conditions to the Obligations of Parent and Merger Subsidiary	40

ARTICLE IX INDEMNIFICATION AND ESCROW	43
9.1 Survival of Representations and Warranties	43
9.2 Indemnification and Escrow Arrangements	43

ARTICLE X TERMINATION, AMENDMENT, WAIVER, CLOSING	48
10.1 Termination	48
10.2 Effect of Termination	49
10.3 Amendment or Supplement	49
10.4 Extension of Time; Waiver	49

ARTICLE XI GENERAL	50
11.1 Notices	50
11.2 Material Adverse Effect; Knowledge	51
11.3 Headings	52
11.4 Counterparts	52
11.5 Entire Agreement; Assignment	52
11.6 Severability	52
11.7 Other Remedies	52
11.8 Governing Law	52
11.9 Absence of Third-Party Beneficiary Rights	52
11.10 Company Counsel	52



Exhibit A	Form of Lock-Up Agreement
Exhibit B	Form of Stockholder Certificate
Exhibit C	Form of Registration Rights Agreement
Exhibit D-1	Form of Non-Competition and Non-Solicitation Agreement with Thomas Martis
Exhibit D-2	Form of Non-Competition and Non-Solicitation Agreement with S. Jaffer Hussain
Exhibit E	Form of FIRPTA Certificate
Exhibit F	Form of Opinion of Osborn Maledon, P.A.
Exhibit G	Form of Escrow Agreement
Exhibit H	Form of Employment Agreement with Thomas Martis
Exhibit I	Form of Employment Agreement with S. Jaffer Hussain

-iii-

Exhibit J	Form of Second Step Certificate of Merger
Exhibit K	Form of Opinion of Pillsbury Winthrop LLP

Schedule 2.2	Options and Shares Subject to Acceleration
Schedule 6.1(o)	Permitted Payments
Schedule 7.17	Consents

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this Agreement) dated as of the 13th day of October, 2004, by and among LOGICVISION, INC., a Delaware corporation (Parent), SIGNAL ACQUISITION CORPORATION, a Delaware corporation and a wholly owned subsidiary of Parent (Merger Subsidiary), and SIVERION, INC., a Delaware corporation (the Company).

W I T N E S S E T H:

WHEREAS, the Boards of Directors of Parent, Merger Subsidiary and the Company deem it advisable and in the best interests of their respective stockholders to effect the merger hereafter provided for, in which Merger Subsidiary would merge with and into the Company and the Company would become a wholly owned subsidiary of Parent (the Merger); and

WHEREAS, it is intended that the Merger and the Second Step Merger (as defined herein) are integrated steps in the transaction contemplated by this Agreement and will together qualify as a tax-free reorganization within the meaning of section 368(a) of the Internal Revenue Code of 1986, as amended (the Code); and

WHEREAS, concurrent with the execution and delivery of this Agreement (i) Thomas Martis and S. Jaffer Hussain shall have entered into a Non-Competition and Non-Solicitation Agreement, each in substantially the form attached hereto as Exhibits D-1 and D-2, respectively (the Non-Competition Agreements), with Parent and (ii) Thomas Martis and S. Jaffer Hussain shall have entered into an Employment Agreement, each in substantially the form attached hereto as Exhibits H and I, respectively (the Employment Agreements) with Parent:

NOW, THEREFORE, in consideration of the premises and of the mutual agreements, provisions and covenants herein contained, Parent, Merger Subsidiary and the Company hereby agree as follows:

ARTICLE I

THE MERGER

1.1 The Merger; the Second Step Merger. At the Effective Time (as defined in Section 1.3), upon the terms and subject to the conditions of this Agreement, Merger Subsidiary shall be merged with and into the Company in accordance with the General Corporation Law of the State of Delaware (the DGCL), whereupon the separate existence of Merger Subsidiary shall cease, and the Company shall be the surviving corporation (the Surviving Corporation). Following the Effective Time, on the same day of the Effective Time if practicable, but in any case no more than one (1) Business Day following the Effective Time, Parent shall cause the Surviving Corporation to merge with and into Parent by filing a certificate of merger with the Secretary of State of the State of Delaware in substantially the form attached hereto as Exhibit J (the Second Step Certificate of Merger), whereupon the separate existence of the Surviving Corporation shall cease, and Parent shall be the surviving corporation (the Second Step Merger). The Merger and the Second Step Merger shall be treated as integrated steps in the transaction contemplated by this Agreement and for

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any and all federal and state income tax reporting purposes shall be reported as a single merger transaction within the meaning of Section 368(a)(1)(A) of the Code.

1.2 Closing. The closing of the transactions contemplated by this Agreement (the Closing) shall take place at the offices of Pillsbury Winthrop LLP, 2475 Hanover Street, Palo Alto, California as soon as practicable following satisfaction or waiver of all of the conditions to the obligations of the parties to consummate the transactions contemplated hereby in accordance with this Agreement or at such other time, place and date as is mutually agreed to by the parties hereto. The date of the Closing is referred to in this Agreement as the Closing Date.

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AGREEMENT AND PLAN OF MERGER

Among

LOGICVISION, INC.,

SIGNAL ACQUISITION CORPORATION

and

SIVERION, INC.

TABLE OF CONTENTS

AGREEMENT AND PLAN OF MERGER