EXHIBIT 10.105
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT dated as
of the 8th day of November, 2005 (the “Agreement”), is
entered into by and between Greg Haugen, an individual (the
“Employee”) and APT Acquisition Corp., a Delaware
corporation (“the Corporation”).
RECITALS
WHEREAS, Advanced Power Technology,
Inc., a Delaware corporation (“APT”), the Corporation,
and Microsemi Corporation, a Delaware corporation
(“Parent”) anticipate entering into an Agreement and
Plan of Merger (the “Merger Agreement”), pursuant to
which, on the terms and subject to the conditions set forth in the
Merger Agreement, the Corporation will merge with and into APT (the
“Merger”) and the resulting entity (“Surviving
Corporation”) will become a wholly-owned subsidiary of
Parent; and
WHEREAS, as of the date hereof, the
Employee serves as the Vice President and Chief Financial Officer
of APT; and
WHEREAS, the Corporation wishes to
employ the Employee, and the Employee wishes to be employed by the
Corporation, on the terms and conditions contained in this
Agreement effective upon the consummation of the Merger;
and
WHEREAS, the Corporation is only
willing to enter into this Agreement on the basis that the Employee
observe the restrictive covenants set out herein which have been
negotiated in good faith and which the Employee acknowledges as
being reasonable given the nature of the Employee’s expected
position with the Corporation contemplated by this
Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements in this Agreement, receipt and
sufficiency of which are hereby acknowledged, it is agreed by and
between the Employee and the Corporation as follows:
1. EMPLOYMENT
1.1 Position
Subject to the terms and conditions
of Section 6.1, during the Term of Employment (as defined in
Article 2), the Corporation shall employ the Employee, and the
Employee shall be employed by the Corporation on the terms and
subject to the conditions herein contained.
1.2 Duties
During the Term of Employment (as
defined in Article 2), the Employee shall:
(i) devote the whole of the
Employee’s time, skills, experience and attention to the
business of the Corporation, and ensure that the Employee is not at
any time engaged in conduct that would interfere with the
performance by the Employee of the Employee’s duties under
this Agreement or which would constitute a conflict with the
interests of the Corporation. During the Term of Employment, the
Employee will not be employed or engaged in any other business
without the prior written permission of the Corporation;
and
(ii) well and faithfully serve the
Corporation and carry out those responsibilities as are necessary
to perform the functions associated with the Employee’s
position; and
(iii) use the Employee’s best
efforts while performing Employee’s responsibilities to
promote the success of the business of the Corporation and act at
all times in the best interests of the Corporation.
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2. TERM
Subject to the terms and conditions of
Section 6.1, this Agreement and the Employee’s
employment hereunder shall become effective at the Effective Time
of the Merger and shall continue until the earliest of the
following to occur (the “Term of
Employment”):
(a) the sixth (6) month
anniversary of the Effective Date of the Merger,
(b) mutual agreement between
Corporation and Employee;
(c) death of Employee;
(d) the good faith determination of
the Corporation that Employee has become so physically or mentally
disabled as to be incapable of satisfactorily performing
Employee’s duties hereunder for a period of ninety
(90) consecutive days, such determination based upon a
certificate as to such physical or mental disability issued by a
licensed physician and/or psychiatrist (as the case may be)
employed by the Corporation; or
(e) any termination pursuant to
Article 4.
Sections 5 and 6 and Subsection 3.4
of this Agreement shall survive following the Term of Employment,
and Sections 1, 2 and 4 and Subsections 3.1, 3.2, and 3.3 of this
Agreement shall be terminated and have no further force or effect.
The Corporation and the Employee understand and agree that, if
Employee’s employment shall not have been terminated,
Employee shall be an “at-will” employee of the
Corporation after the Term of Employment.
3. REMUNERATION
3.1 Compensation
In consideration for the
Employee’s promise to provide up to a maximum of eighty
(80) hours per month in services to the Corporation, as
needed, during the period between the Effective Date of the Merger
and the sixth (6) month anniversary of the Effective Date of
the Merger, the Corporation shall make a one-time payment to the
Employee in the amount of $359,788 upon the Effective Date of the
Merger. The Employee shall receive no further compensation from the
Corporation for the Employee’s provision of services to the
Corporation and shall not be entitled to any benefits from the
Corporation during the Employee’s Term of
Employment.
3.2 APT Options
On or before the Effective Date of
the Merger, your outstanding APT stock options will accelerate
under the existing provisions of the APT stock option plan. These
options will be assumed by Parent and adjusted to reflect the terms
of the Merger Agreement. Accordingly, following the Merger, your
APT Options will have become options to acquire shares of common
stock of the Parent (the “Parent Common Stock). You will
receive a Stock Option Assumption Agreement (to be entered into by
you) informing you of the specific adjustments to the number of
shares, the exercise price and the number of shares subject to each
vesting installment that have been made to your APT Options to
reflect the exchange ratio in effect for the Merger.
3.3 Expenses
The Corporation shall reimburse the
Employee for all out-of-pocket expenses and other disbursements
actually and properly incurred by the Employee in connection with
the Employee’s duties hereunder or otherwise properly
incurred by the Employee for and on behalf of the Corporation, upon
presentation of reasonably acceptable evidence of the Employee
having incurred such expenses and disbursements.
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3.4 Directors’ and Officers’
Liability Insurance
The Corporation shall provide the
Employee with directors’ and officers’ liability
insurance coverage with respect to the Employee on the terms and
subject to the conditions set forth in Section 5.10 of the
Merger Agreement. This obligation will survive termination of the
Employee’s Term of Employment.
4 TERMINATION OF EMPLOYMENT
4.1 Termination by Corporation for
Cause
The employment of the Employee
hereunder may be terminated for Cause at any time by notice in
writing from the Corporation to the Employee, in which event the
Employee shall not be entitled to a notice period or compensation
in lieu of notice. In such case, the Employee shall not be entitled
to any compensation hereunder.
For purposes of this Agreement,
“Cause” shall mean:
(1) fraud, misappropriation,
embezzlement, or other act of material misconduct against the
Corporation, Parent or any of its respective directors, officers,
agents or affiliates;
(2) substantial and willful failure
to perform specific and lawful directives of the Parent or
Corporation, including but not limited to policies of general
application;
(3) willful and knowing violation of
any material laws, rules or regulations of any governmental or
regulatory body;
(4) willful and knowing failure to
cooperate with any investigation or inquiry, formal or informal, by
the Parent, the Corporation or any governmental or regulatory body;
or
(5) conviction of, or plea of guilty
or nolo contendere to, any felony whatsoever or any misdemeanor
that involves moral turpitude.
4.2 Termination by Corporation without
Cause
The employment of the Employee may
be terminated by the Corporation without Cause at any time by
notice in writing from the Corporation to the Employee, in which
event the Employee shall not be entitled to a notice period or
compensation in lieu of notice.
4.3 Fair and Reasonable
The parties confirm that the
provisions contained in this Article 4 are fair and reasonable and
the parties agree that upon termination of this Agreement pursuant
to any of the provisions hereof, the Employee shall have no action,
cause of action, claim or demand against the Corporation or any
other person as a consequence of such termination, so long as the
Corporation fulfills its obligations hereunder. The Employee agrees
to accept that the payment provided for in Section 3.1 as full
satisfaction of any and all claims the Employee has or may have
against the Corporation and the Employee agrees to sign and deliver
to the Corporation and not revoke a full release of all claims
against the Corporation and its affiliates prior to receipt of
payment of said sum.
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5. COVENANTS OF EMPLOYEE
5.1
Confidentiality
Except as may be required by
applicable law or the rules and regulations of any national
securities exchange or national automated quotation system, the
Employee shall not, at any time or under any circumstances during
the term of the Employee’s employment with the Corporation
and after the termination of the Employee’s employment,
except for the benefit of the Corporation in carrying out the
Employee’s duties hereunder, directly or indirectly
communicate or disclose to any person any confidential knowledge or
information of the Corporation or any of its subsidiaries howsoever
acquired (except as set forth below), nor shall the Employee
utilize or make available any such knowledge or information
directly or indirectly in connection with any business or activity
in which the Employee is or proposes to be involved, or in
connection with the transfer or proposed transfer of any of the
Employee’s securities or in connection with the solicitation
or acceptance of employment with any person. Employee acknowledges
that were Employee to work for a competitor of the Corporation it
would be inevitable that Employee would use or disclose
confidential knowledge and information. Knowledge and information
subject to this Section 5.1 includes, but is not limited to,
formulas, circuits, drawings, designs, mask works, plans,
proposals, marketing and sales data, financial information, cost
and pricing information, customer lists, trade secrets, personnel
information, policies and procedures, organizational charts,
telephone directories, and concepts and ideas related to the past,
present, or future business of the Corporation or any affiliated or
predecessor entity (including any of Parent’s subsidiaries,
including but not limited to APT) which have not been publicly
released by duly authorized representatives of Corporation. The
Employee will be under no obligation of confidentiality with
respect to any information that the Employee can show (i) is
or becomes available to the general public through no fault of the
Employee; (ii) was known to the Employee before disclosure
without obligation of confidentiality; (iii) is independently
developed by the Employee; or (iv) is lawfully received from a
third party without obligation of confidentiality.
The terms of this Section 5.1
shall survive the termination of this Agreement.
5.2 Intellectual Property
Rights
(1) Subject to Section 5.2(4),
any Development made, conceived, learned or reduced to practice
during the course of the Employee’s employment, whether past,
present or future, and all trade secret, patent, copyright, mask
work and other intellectual property rights world-wide therein or
otherwise related thereto whether known or otherwise learned, are
the property of the Corporation, and all of the Employee’s
right, title and interest in and to the same are hereby assigned
(and shall hereby be assigned when first reduced to practice or
first fixed in a tangible medium, as applicable) to the
Corporation, whether or not they are capable of statutory
protection and whether or not they are made by the Employee or
jointly with other persons. The Employee also agrees to assign all
of the Employee’s right, title and interest in and to any
particular Development to a third party, including but not limited
to the United States, solely as directed by the Corporation.
“Developments” means all discoveries, know-how,
inventions, designs, works of authorship, ideas, methods, uses,
business methods, contributio
