EXHIBIT 10.101
VOTING AGREEMENT
This Voting Agreement (this
“Agreement) is made and entered into as of November
, 2005 by and between Microsemi
Corporation, a Delaware corporation (“Parent”), and the
signatory hereto (the “Promissor”). 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 Microsemi
Corporation, APT Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Parent (the “Merger Sub”),
and Advanced Power Technology, Inc., a Delaware corporation (the
“Company”), it is proposed that Parent shall issue
shares of Parent Common Stock and/or Parent Stock Options in
exchange for Shares and Options (as defined below) pursuant to the
Merger Agreement (the “Merger”); and
WHEREAS, as a condition to its
willingness to enter into the Merger Agreement, Parent has required
that each Promissor, in each such person’s capacity as a
stockholder of the Company, enter into, and the Promissor has
agreed to enter into, this Voting Agreement.
AGREEMENT
NOW, THEREFORE, for good and
valuable considerations, receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Representations and Warranties
of the Promissor . The Promissor hereby represents and warrants
to Parent as follows:
(a) Authority; No Violation .
The Promissor has all necessary power and authority to enter into
and perform all of such Promissor’s obligations hereunder.
The execution, delivery and performance of this Agreement by the
Promissor will not violate any other agreement to which such
Promissor is a party, including any voting agreement, stockholder
agreement, trust agreement or voting trust. This Voting Agreement
has been duly and validly executed and delivered by the Promissor
(and the Promissor’s spouse, if the Shares constitute
community property) and constitutes a valid and binding agreement
of the Promissor and such spouse, enforceable against the Promissor
and the Promissor’s spouse, as the case may be, in accordance
with its terms.
(b) Ownership of Shares . The
Promissor is the beneficial owner or record holder of the number of
shares of the Company’s Common Stock indicated under the
Promissor’s name on the signature page hereto (the
“Existing Shares,” and together with any shares of the
Company’s Common Stock acquired by the Promissor after the
date hereof the “Shares”) and, as of the date hereof,
the Existing Shares constitute all of the shares of the
Company’s Common Stock owned of record or beneficially by the
Promissor. With respect to the Existing Shares, and if applicable
subject to community property laws, the Promissor has sole voting
power and sole power to issue instructions with respect to the
matters set forth in Section 2 hereof, sole power of
disposition, sole power to demand appraisal rights and sole power
to engage in actions set forth in Section 2 hereof, with no
restrictions on the voting rights, rights of disposition or
otherwise, subject to applicable laws and the terms of this
Agreement.
(c) No Conflicts . Neither
the execution and delivery of this Agreement nor the consummation
by the Promissor of the transactions contemplated hereby will
conflict with or constitute a violation of or default under any
contract, commitment, agreement, arrangement or restriction of any
kind to which such Promissor is a party or by which the Promissor
is bound.
2. Voting Agreement and Agreement
Not to Transfer .
(a) The Promissor hereby agrees to
vote all of the Shares held by the Promissor (i) in favor of
the Merger, the Merger Agreement and the transactions contemplated
by the Merger Agreement; (ii) against any action or agreement
that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and
(iii) except with the prior written consent of Parent, against
the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement): (A) any extraordinary
corporate transactions, such as a merger, consolidation or other
business combination involving the Company; (B) any sale,
lease or transfer of a material amount of the assets of the
Company; (C) any change in the majority of the Board of the
Company; (D) any material change in the present capitalization
of the Company; (E) any amendment of the Company’s
Articles of Incorporation; (F) any other material change in
the Company’s corporate structure or business; or
(G) any other action which is intended, or could reasonably be
expected to, impede, interfere with, delay, postpone, discourage or
materially adversely affect the contemplated economic benefits to
Parent or Company of the transactions contemplated by the Merger
Agreement. The Promissor shall not enter into any agreement or
understanding with any person or entity prior to the Termination
Date (as defined below) to vote or give instructions after the
Termination Date in any manner inconsistent with clauses (i),
(ii) or (iii) of the preceding sentence.
(b) The Promissor hereby agrees not
to (i) sell, transfer, assign or otherwise dispose of any of
his or her Shares without the prior written consent of Parent,
other than Shares sold or surrendered to pay the exercise price of
any stock options or to pay taxes or satisfy the Company’s
withholding obligations with respect to any taxes resulting
fro
