Exhibit 10.75
LOCK-UP AGREEMENT
This Lock-Up Agreement (this “
Agreement ”) is made and entered into as of
November 11, 2005, between 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
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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.
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(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 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%)
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