Exhibit 10.71
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)
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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:
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(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 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
