EXHIBIT 10.102
LOCK-UP AGREEMENT
This Lock-Up Agreement (this “
Agreement ”) is made and entered into as of
November 11, 2005, among Microsemi Corporation, a Delaware
corporation ( “Parent” ), the undersigned
stockholder and/or optionholder ( “Holder” ),
and Advanced Power Technology, Inc., a Delaware corporation (the
“Company” ). Terms used herein and not defined
herein shall have the meaning set forth in the Merger Agreement (as
defined below).
RECITALS
WHEREAS, the Holder is the
registered owner of (1) such number of issued and outstanding
shares of Company Common Stock (the “Shares” )
and (2) options to purchase such number of shares of Company
Common Stock (the “Options” ), each as is
indicated beneath Holder’s signature on the last page of this
Agreement; and
WHEREAS, pursuant to an Agreement
and Plan of Merger dated as of November 2, 2005, as may be
amended from time to time (including such amendments, herein called
the “Merger Agreement” ) by and among Parent,
APT Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent, and the Company, it is proposed that Parent
shall pay cash and issue shares of Parent Common Stock in exchange
for the Shares and assume the Options; and
WHEREAS, as a condition and
inducement to Parent consummating the Merger, Parent has required
that Holder enter into this Agreement to serve the general purpose
of better aligning Holder’s financial interests with the
success of the transaction contemplated in the Merger
Agreement.
NOW, THEREFORE, for good and
valuable considerations, receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Agreement to Retain
Shares.
(a) Transfer and Encumbrance. Except
as contemplated by the Merger Agreement, and except as provided in
Sections 1(b) and 2 below, during the period beginning on the date
hereof and ending on the earlier to occur of (i) ninety
(90) days following the Effective Date, and (ii) the
Expiration Date (as defined below), Holder agrees not to, directly
or indirectly, (A) transfer (except as may be specifically
required by court order), sell, exchange, tender, assign,
contribute to the capital of any entity, or otherwise dispose of
(including by merger, consolidation or otherwise by operation of
law) or encumber the Shares or any New Shares (as defined below),
including any shares of Parent Common Stock received in exchange
for such Shares pursuant to the Merger, enter into any short sale
with respect to the Shares or any New Shares, enter into or acquire
an offsetting derivative contract with respect to such Shares or
any New Shares, enter into or acquire a futures or forward contract
to deliver such Shares or any New Shares or enter into any other
hedging or other derivative transaction that has the effect of
materially changing the economic benefits and risks of ownership of
the Shares or any New Shares, or to, directly or indirectly, make
any offer or agreement relating thereto, (B) grant any proxies
or powers of attorney, deposit any of such Shares or New Shares
into a voting trust or enter into a voting agreement with respect
to any of such Shares or New Shares, or enter into any agreement or
arrangement providing for any of the actions described in this
clause, or (C) take any action that could reasonably be
expected to have the effect of preventing or disabling Holder from
performing Holder’s obligations under this Agreement, and
Holder warrants that it has not agreed to carry out any of the
foregoing matters in relation to the Shares or any New Shares;
provided , however that,
notwithstanding the provisions of
this Section 1(a), the Holder may provide an irrevocable
undertaking or other form of support agreement to Parent or Company
in relation to the Merger. As used herein, the term
“Expiration Date” shall mean the date of termination of
the Merger Agreement in accordance with the terms and provisions
thereof. During period from ninety (90) to one hundred eighty
(180) days following the Effective Date, the foregoing
restriction applies to fifty percent (50%) of the Shares and
fifty percent (50%) of any News Shares, and after one hundred
eighty (180) days, the foregoing restriction does not
apply.
(b) Permitted Transfers.
Section 1(a) shall not prohibit a transfer of Shares or New
Shares by Holder (i) if Holder is an individual (A) to
any member of Holder’s immediate family, or to a trust for
the benefit of Holder or any member of Holder’s immediate
family, or (B) upon the death of Holder, or (ii) if
Holder is a partnership or limited liability company, to one or
more partners or members of Holder or to an affiliated Person under
common control or common management with Holder; provided, however,
that any such transfer pursuant to either clause (i) or
(ii) of this Section 1(b) shall be permitted only if, as
a precondition to such transfer, the transferee agrees in writing
to be bound by all of the terms of this Agreement, or
(iii) with respect to Options under the Company Stock Option
Plans, Holder may sell New Shares upon or after exercise thereof
pursuant to an effective Registration Statement to be filed by
Parent under the Securities Act of 1933 (the “Securities
Act”) provided also that such New Shares are sold in
accordance with Parent’s Insider Trading Policy and Rule 145
of the rules and regulations prescribed by the Securities and
Exchange Commission (“SEC”) pursuant to the Securities
Act (“Rule 145”).
(c) New Shares. Holder agrees that
New Shares (as defined below) shall be subject to the terms and
conditions of this Agreement to the same extent as if they
constituted Shares. The term “New Shares” shall mean
any and all shares of capital stock or interests in shares or other
securities of the Company or Parent, including any shares of Parent
Common Stock received in exchange for such Shares pursuant to the
Merger and/or received upon exercise of the Options assumed by
Parent pursuant to the Merger, that Holder purchases or with
respect to which Holder otherwise acquires registered or beneficial
ownership after the date of this Agreement and prior to the earlier
to occur of (i) one hundred eighty (180) days following
the Effective Date and (ii) the Expiration Date.
2. Restrictions on Shares and New
Shares
(a) General. Holder has been advised
that, as of the date hereof, Holder may be deemed to be an
“affiliate” of the Company, as the term
“affiliate” is defined for purposes of
paragraphs (c) and (d) of Rule 145. Holder will
receive Parent Common Stock in exchange for the Shares or New
Shares. Notwithstanding anything to the contrary set forth in this
Section 2, the execution of this Agreement should not be
considered an admission on Holder’s part that Holder is an
“affiliate” of the Company, nor as a waiver of
any rights Holder may have to object to any claim that Holder is
such an affiliate on or after the date of this
Agreement.
(b) Holder Representations;
Restrictions on Transfer; Legends Holder represents, warrants and
covenants to Parent that in the event Holder receives any Parent
Common Stock upon consummation of the Merger:
(i) Holder shall not make any sale,
transfer or other disposition of the Parent Common Stock in
violation of the Securities Act.
(ii) Holder has carefully read this
Agreement and discussed the requirements of this Agreement and
other applicable limitations upon Holder’s ability to sell,
transfer or otherwise dispose of Parent Common Stock received in
exchange for the Shares, to the extent Holder has felt necessary,
with Holder’s counsel.
(iii) Holder has been advised that
the issuance of Parent Common Stock in connection with the Merger
will be registered on a registration statement on Form S-4
promulgated under the Securities Act (the “Registration
Statement” ) and the resale of such Parent Common Stock
may be subject to restrictions set forth in Rule 145. Holder has
been advised that, because Holder may be deemed to be
2
an “affiliate” of
the Company, Holder may not sell, transfer or otherwise dispose of
the Parent Common Stock issued to Holder in the Merger, unless
(i) such sale, transfer or other disposition is made in
conformity with the limitations of Rule 145, (ii) such sale,
transfer or other disposition has been registered under the
Securities Act or (iii) in the opinion of counsel reasonably
acceptable to Parent, such sale, transfer or other disposition is
otherwise exempt from registration under the Securities
Act.
(iv) Holder understands and agrees
that stop transfer instructions will be given to Parent’s
transfer agent with respect to the Parent Common Stock issued to
directors, executive officers and ten percent (10%) holders of
any class of securities of the Company (as of immediately prior to
the Merger) and that there will be placed on the certificates for
the Parent Common Stock issued to directors, executive officers and
10% holders
