[a05-18307_1ex10d39.htm#a8_8_NoThirdpartyBeneficiaries_Ex_193222]
No Third-Party Beneficiaries
[a05-18307_1ex10d39.htm#a8_8_NoThirdpartyBeneficiaries_Ex_193222]
8.9. [a05-18307_1ex10d39.htm#a8_9_GoverningLaw_ThisAgreementSh_193223]
Governing Law [a05-18307_1ex10d39.htm#a8_9_GoverningLaw_ThisAgreementSh_193223]
8.10. [a05-18307_1ex10d39.htm#a8_10_Jurisdiction_anyLegalAction_193224]
Jurisdiction [a05-18307_1ex10d39.htm#a8_10_Jurisdiction_anyLegalAction_193224]
8.11. [a05-18307_1ex10d39.htm#a8_11_EntireAgreement_ThisAgreeme_193225]
Entire Agreement
[a05-18307_1ex10d39.htm#a8_11_EntireAgreement_ThisAgreeme_193225]
8.12 [a05-18307_1ex10d39.htm#a8_12_Validity_TheInvalidityOrUne_193227]
Validity [a05-18307_1ex10d39.htm#a8_12_Validity_TheInvalidityOrUne_193227]
EXHIBITS
A
Voting Agreement
B.
Non-competition Agreement
C.
Lock-up Agreement
D.
Employment Agreement*
E.
Option Assumption Agreement
F
Certificate of Merger
G
List of Parties to Ancillary Agreements
*Employment Agreements made available upon request.
iii
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated November 2, 2005, is
made and entered into by and among MICROSEMI CORPORATION, a Delaware corporation
("Parent"), APT ACQUISITION CORP., a Delaware corporation and wholly owned
subsidiary of Parent ("Merger Sub"), and ADVANCED POWER TECHNOLOGY, INC., a
Delaware corporation (the "Company").
Merger Sub and the Company are sometimes
collectively referred to as the "Constituent Corporations."
WITNESSETH:
WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the
Company have determined that it is advisable and in the best interests of the
respective corporations and their stockholders that Merger Sub be merged with
and into the Company in accordance with the Delaware General Corporation Law
(the "DGCL") and the terms of this Agreement, pursuant to which the Company will
be the surviving corporation and will be a wholly owned subsidiary of Parent
(the "Merger"); and
WHEREAS, for United States federal income tax purposes, the parties intend that
the Merger shall qualify as a "reorganization" under Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and that this Agreement
constitute a "plan of reorganization" within the meaning of the Code; and
WHEREAS, Parent, Merger Sub and the Company desire to make certain
representations, warranties, covenants, and agreements in connection with, and
establish various conditions precedent to, the Merger; and
WHEREAS, as an inducement to Parent to enter into this Agreement, certain third
parties are concurrently herewith entering into one or more of the following
agreements (collectively the "Ancillary Agreements"): a Stockholder Voting
Agreement in substantially the form attached hereto as Exhibit A (the "Voting
Agreement"); a Non-competition Agreement in substantially the form attached
hereto as Exhibit B ("Non-competition Agreement"); a Lock-up Agreement in
substantially the form attached hereto as Exhibit C (the "Lock-up Agreement"), a
Key-Employee Employment Agreement in substantially the form attached hereto as
Exhibit D (the "Employment Agreement"), and/or an agreement to induce Parent to
assume the outstanding Company Options under the Company Stock Option Plans in
substantially the form attached hereto as Exhibit E (the "Option Assumption
Agreement").
NOW, THEREFORE, in consideration of the representations, warranties, covenants
and agreements set forth in this Agreement and in the Certificate of Merger (as
defined in Section 1.3 hereof), the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
THE MERGER
1.1
THE MERGER.
AT THE EFFECTIVE TIME (AS DEFINED
IN SECTION 1.3 HEREOF), SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT
AND THE CERTIFICATE OF MERGER, MERGER SUB SHALL BE MERGED WITH AND INTO THE
COMPANY, THE SEPARATE EXISTENCE OF MERGER SUB SHALL CEASE, AND THE COMPANY SHALL