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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Exar Corp.

Date:

2007

Size:

Preview shows 72KB of 281KB total

Price:

$99

ID:

#2883986

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

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

EXAR CORPORATION,

SIPEX CORPORATION

AND

SIDE ACQUISITION CORP.

Dated as of May 7, 2007

TABLE OF CONTENTS


		Page

ARTICLE I	THE MERGER	2

1.1	The Merger	2

1.2	Closing of the Merger	2

1.3	Effective Time of the Merger	2

1.4	Effects of the Merger	2

1.5	Certificate of Incorporation and Bylaws of the Surviving Corporation	2

1.6	Directors and Officers	3

1.7	Effect of Merger on Capital Stock	3

1.8	Exchange Procedures	4

1.9	Repurchase Rights	6

1.10	No Further Ownership Rights in Capital Stock of Sipex	6

1.11	Lost, Stolen or Destroyed Certificates	6

1.12	Tax Consequences	7

1.13	Further Action	7

ARTICLE II	REPRESENTATIONS AND WARRANTIES OF EXAR AND MERGER SUB	7

2.1	Organization of Exar	7

2.2	Exar Capital Structure	8

2.3	Obligations With Respect to Capital Stock	9

2.4	Authority; No Conflict	9

2.5	SEC Filings; Exar Financial Statements; No Undisclosed Liabilities; Sarbanes-Oxley	10

2.6	Absence of Certain Changes or Events	12

2.7	Taxes	13

2.8	Exar Intellectual Property	14

2.9	Compliance; Permits; Restrictions	19

2.10	Litigation	19

2.11	Brokers and Finders Fees	20

2.12	Employee Benefit Plans	20

2.13	Absence of Liens and Encumbrances; Real Property	23

2.14	Environmental Matters	23

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TABLE OF CONTENTS

(continued)


		Page

2.15	Labor and Employment Matters	25

2.16	Agreements, Contracts and Commitments	25

2.17	Statements; Proxy Statement/Prospectus	27

2.18	Board Approval	28

2.19	State Takeover Statutes	28

2.20	Fairness Opinion	28

2.21	Insurance	28

2.22	Transactions with Affiliates	28

2.23	Illegal Payments	28

2.24	Operations and Equity Interests of Merger Sub	29

ARTICLE III	REPRESENTATIONS AND WARRANTIES OF SIPEX	29

3.1	Organization of Sipex	29

3.2	Sipex Capital Structure	30

3.3	Obligations With Respect to Capital Stock	31

3.4	Authority; No Conflict	31

3.5	SEC Filings; Sipex Financial Statements; No Undisclosed Liabilities; Sarbanes-Oxley	32

3.6	Absence of Certain Changes or Events	34

3.7	Taxes	34

3.8	Sipex Intellectual Property	36

3.9	Compliance; Permits; Restrictions	40

3.10	Litigation	40

3.11	Brokers and Finders Fees	41

3.12	Employee Benefit Plans	41

3.13	Absence of Liens and Encumbrances; Real Property	44

3.14	Environmental Matters	44

3.15	Labor and Employment Matters	45

3.16	Agreements, Contracts and Commitments.	46

3.17	Statements; Proxy Statement/Prospectus	48

3.18	Board Approval	48

-ii-

TABLE OF CONTENTS

(continued)


		Page

3.19	State Takeover Statutes	48

3.20	Fairness Opinion	48

3.21	Affiliates	48

3.22	Insurance	49

3.23	Transactions with Affiliates	49

3.24	Illegal Payments	49

ARTICLE IV	COVENANTS RELATING TO CONDUCT OF BUSINESS	49

4.1	Conduct of Business	49

4.2	No Control	52

ARTICLE V	ADDITIONAL AGREEMENTS	52

5.1	Proxy Statement/Prospectus; Registration Statement; Other Filings	52

5.2	Meetings of Stockholders	53

5.3	Access to Information; Confidentiality	54

5.4	No Solicitation	55

5.5	Public Disclosure	60

5.6	Fees and Expenses	61

5.7	Third Party Consents	61

5.8	Notification of Certain Matters	61

5.9	Commercially Reasonable Efforts and Further Assurances	62

5.10	Sipex Stock Options; Sipex Employee Stock Purchase Plan; Form S-8	62

5.11	Indemnification	63

5.12	Tax-Free Reorganization.	64

5.13	NASDAQ Listing	65

5.14	Affiliate Agreements	65

5.15	Board of Directors and Officers of Exar	65

5.16	Section 16 Matters	65

5.17	Employee Matters	65

5.18	Sipex Notes and Sipex Warrants	67

5.19	Retention Program	68

-iii-

TABLE OF CONTENTS

(continued)


		Page

ARTICLE VI	CONDITIONS TO THE MERGER	68

6.1	Conditions to Each Partys Obligation to Effect The Merger	68

6.2	Additional Conditions to Obligations of Exar and Merger Sub	68

6.3	Additional Conditions to the Obligations of Sipex	69

ARTICLE VII	TERMINATION, AMENDMENT AND WAIVER	70

7.1	Termination	70

7.2	Notice of Termination; Effect of Termination	72

7.3	Fees	72

7.4	Amendment	74

7.5	Extension; Waiver	74

ARTICLE VIII	GENERAL PROVISIONS	74

8.1	Certain Definitions	74

8.2	Non-Survival of Representations and Warranties	79

8.3	Notices	79

8.4	Interpretation; Knowledge	80

8.5	Counterparts	80

8.6	Entire Agreement; Third Party Beneficiaries	80

8.7	Severability	80

8.8	Other Remedies; Specific Performance	81

8.9	Governing Law; Forum Selection	81

8.10	Rules of Construction	81

8.11	Assignment	81

8.12	Waiver of Jury Trial	81

-iv-

TABLE OF CONTENTS


		Page
EXHIBITS

EXHIBIT A	Form of Exar Voting Agreement
EXHIBIT B	Form of Sipex Voting Agreement
EXHIBIT C	Form of Lock-Up and Standstill Agreement
EXHIBIT D	Form of Affiliate Agreement
EXHIBIT E-1	Form of Exar Tax Officers Certificate
EXHIBIT E-2	Form of Sipex Tax Officers Certificate

Schedule 1.6	Directors of Surviving Corporation
Schedule 5.15(a)	Directors of Exar
Schedule 5.15(b)	Officers of Exar

-v-

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (the Agreement) is made and entered into as of May 7, 2007 among Sipex Corporation, a Delaware corporation (Sipex), Exar Corporation, a Delaware corporation (Exar) and Side Acquisition Corp., a Delaware corporation and direct wholly owned subsidiary of Exar (Merger Sub). Capitalized terms that are used herein shall have the respective meanings ascribed thereto in Article VIII hereof.

RECITALS

A. The boards of directors of Exar and Sipex deem it advisable and in the best interests of each corporation and its respective stockholders that Exar and Sipex engage in a business combination in order to advance the long-term strategic business interests of Exar and Sipex.

B. In furtherance thereof, upon the terms and subject to the conditions set forth in this Agreement, Merger Sub will be merged with and into Sipex, the separate corporate existence of Merger Sub will thereupon cease and Sipex will continue as the surviving corporation and a wholly owned Subsidiary of Exar (the Merger).

C. The Board of Directors of Sipex (i) has determined that the Merger and the transactions contemplated hereby are consistent with and in furtherance of the long-term business strategy of Sipex and fair to, advisable and in the best interests of, Sipex and its stockholders, (ii) has approved this Agreement, the Merger and the other transactions contemplated by this Agreement and (iii) has determined, subject to the terms of this Agreement, to recommend the adoption of this Agreement by the stockholders of Sipex.

D. The Board of Directors of Exar (i) has determined that the Merger and the transactions contemplated hereby are consistent with and in furtherance of the long-term business strategy of Exar and fair to, advisable and in the best interests of, Exar and its stockholders, (ii) has approved this Agreement, the Merger and the other transactions contemplated by this Agreement and (iii) has determined, subject to the terms of this Agreement, to recommend the approval of the issuance of shares of Exar Common Stock in the Merger by the stockholders of Exar.

E. Concurrently with the execution of this Agreement, and as a condition and inducement to Sipexs and Exars willingness to enter into this Agreement, certain affiliates of Sipex have entered into a Voting Agreement in the form attached hereto as Exhibit A (the Sipex Voting Agreements), and certain affiliates of Exar have entered into a Voting Agreement in the form attached hereto as Exhibit B (the Exar Voting Agreements and, collectively with the Sipex Voting Agreements, the Voting Agreements).

F. Concurrently with the execution of this Agreement, and as a condition and inducement to Exars willingness to enter into this Agreement, a certain stockholder of Sipex has entered into a Lock-Up and Standstill Agreement with Exar in the form attached hereto as Exhibit C (the Lock-Up and Standstill Agreement).

G. The parties intend for the Merger to constitute a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the Code) and intend for this Agreement to constitute a plan of reorganization within the meaning of Section 368 of the Code.

NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

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