EXHIBIT 10.103
NON-COMPETITION
AGREEMENT
This Non-competition Agreement (this
“Agreement”) is dated as of November
, 2005, among Microsemi
Corporation, a Delaware corporation (“Parent”) Advanced
Power Technology, Inc., a Delaware corporation
(“Company”), and Patrick P.H. Sireta (the
“Obligor”). Terms used herein and not defined herein
shall have the meaning set forth in the Merger Agreement (as
defined below).
RECITALS
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 (“Merger Sub”), and Company, it is
proposed that Parent shall issue shares of Parent Common Stock
and/or Parent Stock Options (the “New Shares”) in
exchange for issued shares of Company Common Stock (as defined
below) (the “Shares”) and options to purchase Company
Common Stock (the “Options”) pursuant to the Merger
Agreement; and
WHEREAS, as a condition and
inducement to Parent consummating the Merger, Parent has required
that Obligor enter into this Agreement; and
WHEREAS, the Obligor is a
stockholder of the Company; and
WHEREAS, in order to induce the
Parent to enter into the Merger Agreement and to minimize the risk
that the Parent will lose the benefits of the goodwill and other
assets being acquired from the Merger Sub, the Obligor has agreed
to restrict his activities in accordance with the terms and
conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises, and of the representations, warranties, covenants and
agreements contained herein, and other good and valuable
consideration, the receipt of and sufficiency of which the parties
hereto hereby acknowledge, the parties hereto hereby agree as
follows:
1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
(a) “Restricted
Business” shall mean any activity customarily associated with
Advanced Power Technology’s ordinary course of
business.
(b) ”Restricted
Territory” shall mean the global geographic area.
2. Agreement Not To
Compete.
(a) Agreement.
The Obligor agrees that for a two-year period from the date
of this Agreement through the date that is the second anniversary
of the Effective Date, Obligor shall not directly or indirectly
engage in or have any ownership interest in, or participate in the
financing, operation, management or control of, any person, firm,
corporation or
1
business that engages in a
Restricted Business in a Restricted Territory, provided that
this provision shall not prohibit the Obligor from owning up to
five percent (5%) of any class of outstanding bonds, preferred
stock or shares of common stock of any such entity.
(b) Confidential Information
. The Obligor hereby acknowledges that he makes use of, acquires
and adds to confidential information of a special and unique nature
and value relating to the Merger Sub and its strategic plan and
financial operations. The Obligor further recognizes and
acknowledges that all confidential information is the exclusive
property of Merger Sub, is material and confidential, and is
critical to the successful conduct of the business of Merger Sub.
Accordingly, the Obligor hereby covenants and agrees that he will
use confidential information for the benefit of the Merger Sub only
and shall not at any time, directly or indirectly, during the term
of this Agreement and thereafter divulge, reveal or communicate any
confidential information to any person, firm, corporation or entity
whatsoever, or use any confidential information for his own benefit
or for the benefit of others.
(c) Separate Covenants.
If, in any judicial proceeding, a court shall refuse to
enforce any of the separate covenants (or any part thereof)
contained in the preceding paragraphs of this Section 2, the
parties agree to renegotiate such provision in good faith, in order
to maintain the economic position enjoyed by each party as closely
as possible to that under the provision rendered unenforceable. In
the event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the
balance of the Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of the Agreement shall
be valid and enforceable in accordance with its terms. Each
provision of this Agreement is separable from any other provisions
of this Agreement, and each part of each provision of this
Agreement is severable from every other part of such
provision.
(d) Reformation.
In the event that the provisions of this Section 2
should ever be deemed to exceed the duration or geographic
limitations or scope permitt
