Exhibit 10.74


 


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


 


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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%) 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 of
any class of securities of the Company (as of immediately prior to the Merger),
or any substitutions therefor, a legend stating in substance: “THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED
IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY
BE TRANSFERRED IN ACCORDANCE WITH RULE 145.” If a sale or transfer
is made prior to such legend being removed pursuant to Section 2(c) below,
certificates with the above legend will be substituted by delivery of
certificates without such legend upon delivery of a declaration to Parent (the “Declaration”), which Declaration shall be
reasonably satisfactory in form and substance to Parent, that the requirements
of Rule 145(d)(1) have been complied with.


 


(v) 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 Holder and there will be placed on the
certificates for the Parent Common Stock issued to Holder, or any substitutions
therefore, a legend, in addition to all other legends necessary under
applicable law, stating in substance: “THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE TERMS OF A LOCK-UP AGREEMENT DATED NOVEMBER 11, 2005 AMONG THE
REGISTERED HOLDER HEREOF, ADVANCED POWER TECHNOLOGY, INC., AND MICROSEMI
CORPORATION, A


 


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COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICES OF MICROSEMI CORPORATION.”


 


(c). Parent Representations.


 


(i) Parent hereby agrees that, unless previously
sold pursuant to the applicable requirements of Rule 145, it is understood and
agreed that certificates with the legend set forth in Section 2(b)(iv) above
will be substituted by delivery of certificates without such legend, and any
stop transfer instructions then in effect will be terminated, if (i) one (1) year
shall have elapsed from the date Holder acquired the Parent Common Stock
received in the Merger and the provisions of Rule 145(d)(2) are then available
to Holder, (ii) two (2) years shall have elapsed from the date Holder acquired
the Parent Common Stock received in the Merger and the provisions of Rule
145(d)(3) are then available to Holder, or (iii) Parent has received either an
opinion of counsel, which opinion and counsel shall be reasonably satisfactory
to Parent, or a “no action”
letter obtained by Holder from the staff of the SEC, to the effect that the
restrictions imposed by Rule 145 under the Securities Act no longer apply to
Holder. For as long as resale of any shares of Parent Common Stock owned by
Holder are subject to Rule 145, Parent will use its reasonable efforts to make
all filings of the nature specified in paragraph (c)(1) of Rule 144 under the
Securities Act. Upon receipt of a properly completed Declaration, Parent shall
use its reasonable efforts to instruct its transfer agent to deliver shares of
Parent Common Stock without the legend set forth in Section 2(b)(iv) above in
accordance with the terms of the transfer set forth in the Declaration as soon
as practicable following receipt of such Declaration.


 


(ii) Parent hereby agrees that it is understood and
agreed that certificates with the legend set forth in Section 2(b)(v) above
will, to the extent required to enable the shares represented by such
certificate to be transferred by the holder thereof, be substituted by delivery
of certificates without such legend upon the written request of the Holder if and
to the extent the restriction in Section 1(a) shall have lapsed. Upon receipt
of any such written request, Parent shall use its reasonable efforts to instruct
its transfer agent to deliver shares of Parent Common Stock without the legend
set forth in Section 2(b)(v) above as soon as practicable following receipt of
such written request.


 


4.
Representations, Warranties and Covenants of Holder.


 


Holder
hereby represents, warrants and covenants to Parent that Holder (i) is the
registered owner and, as set forth on the signature page, beneficial owner, of
the Shares and Options to purchase Company Common Stock, if any, indicated
below Holder’s signature on the signature page to this Agreement, and (ii) is
not the registered owner of any shares, options or other securities in, or
convertible into, share capital of the Company, other than the Shares and the Options
to purchase Company Common Stock, if any, indicated below Holder’s signature on
the last page of this Agreement. Holder has the legal capacity, power and
authority to enter into and perform all of Holder’s obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
Holder and constitutes a valid and binding agreement of Holder, enforceable
against Holder in accordance with its terms, subject to (a) laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
(b) rules of law governing specific performance, injunctive relief and other
equitable remedies.


 


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5.
Further Assurances


 


Holder
shall perform such further acts and execute such further documents and
instruments as may reasonably be required to vest in Parent the power to carry
out and give effect to the provisions of this Agreement.


 


6.
Fiduciary Duties


 


Notwithstanding
anything in this Agreement to the contrary: (i) Holder makes no agreement or
understanding herein in any capacity other than in Holder’s capacity as a registered
owner of the Shares and, to the extent applicable, any New Shares, (ii) nothing
in this Agreement shall be construed to limit or affect any action or inaction
by Holder, or any officer, partner, member or employee, as applicable, of
Holder, serving on the Company’s Board of Directors acting in such person’s
capacity as a director or fiduciary of the Company, and (iii) Holder shall have
no liability to Parent or any its affiliates under this Agreement as a result
of any action or inaction by Holder, or any officer, partner, member or
employee, as applicable, of Holder, serving on the Company’s Board of Directors
acting in such person’s capacity as a director or fiduciary of the Company.


 


7.
Miscellaneous


 


(a) Amendments and Waivers. Any term of this Agreement
may be amended or waived with the written consent of the parties or their
respective successors and assigns. Any amendment or waiver effected in
accordance with this Section 7(a) shall be binding upon the parties and their
respective successors and assigns.


 


(b) Governing Law. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Delaware, without giving effect to principles of conflicts of
law.


 


(c) Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.


 


(d) Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.


 


(e) Notices. Any notice or other communication
required or permitted to be delivered to any party under this Agreement shall
be in writing and shall be deemed properly delivered, given and received (i)
when delivered by hand; (ii) on the day sent by facsimile, provided that the
sender has received confirmation of transmission as of or prior to 5:00 p.m.
local time of the recipient, on such day; (iii) the first business day after
sent by facsimile (to the extent that (A) the sender has received confirmation
of transmission after 5:00 p.m. local time of the recipient on the day sent by
facsimile, or (B) notice is sent on a day that is not a business day); or (iv)
the third business day after sent by registered mail or by courier or express
delivery service, in each case to the address or facsimile number set forth on
the signature page to this Agreement beneath the name of such party, or to such
other address or facsimile number as such party shall have specified in a
written notice given to the other party hereto).


 


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(f) Severability. If one or more provisions of this
Agreement are held to be invalid or unenforceable under the applicable law of
any jurisdiction, the parties agree to renegotiate such provision in good
faith, in order to maintain the economic position enjoyed by each party as
close 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.


 


(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach of any covenants or agreements
contained in this Agreement will cause Parent to sustain damages for which it
would not have an adequate remedy at law for money damages, and therefore each
of the parties hereto agrees that in the event of any such breach Parent shall
be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which they may be entitled, at law or in equity.


 


(h) Disclosure. Holder hereby agrees to permit
Parent and the Company to publish and disclose in the Registration Statement
(including all documents and schedules filed with the SEC) and the Proxy
Statement/Prospectus, and in any press release or other disclosure document in
which Parent or the Company reasonably determines in its good faith judgment
that such disclosure is required by law, including the rules and regulations of
the SEC, as appropriate, in connection with the Merger and any transactions
related thereto, such Holder’s identity and ownership of the Shares and New
Shares and the nature of the commitments, arrangements and undertakings under
this Agreement.


 


(i) Assignment.
This Agreement shall not be assigned without the prior written consent of the
other party hereto, except as provided in (j).


 


(j) Entire
Agreement, etc. This Agreement (i) constitutes the entire
agreement, and supersedes all other prior agreements, understandings,
representations and warranties both written and oral among the parties with
respect to the subject matter hereof, and (ii) shall not be transferable
or assignable by operation of law or otherwise and is not intended to create
any obligations to, or rights in respect of, any persons other than the parties
hereto; provided, that the Parent
may assign any of its rights and obligations hereunder to any of its subsidiaries
or to any other entity which may acquire all or substantially all of the
assets, shares or business of the Parent or any of its subsidiaries or any
entity with or into which the Parent or any of its subsidiaries may be consolidated
or merged.


 


(k)   Jurisdiction.   Any legal action or proceeding with respect
to this Agreement may be brought in the superior courts of the State of
California sitting in Orange County, California or federal district courts of
the United States of America for the Central District of California and, by
execution and delivery of this Agreement, the parties hereby accept for
themselves and in respect of their property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties irrevocably consent to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the delivery of notice as provided in this Agreement, such
service to become effective thirty (30) days after such delivery.


 


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SIGNATURE


 


The
parties have caused this Lock-up Agreement to be duly executed on the date
first above written.


 


	
  Microsemi Corporation

  	
   

  	
  Advanced Power Technology, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ JAMES PETERSON

  	
   

  	
  By:

  	
   

  	
  /s/ PATRICK SIRETA

  
	
  Name:

  	
   

  	
  James J. Peterson

  	
   

  	
  Name:

  	
   

  	
  Patrick P.H. Sireta

  
	
  Title:

  	
   

  	
  President & CEO

  	
   

  	
  Title:

  	
   

  	
  President & CEO

  
	
  Address

  	
   

  	
  2381
  Morse Avenue

  	
   

  	
  Address

  	
   

  	
  405
  S.W. Columbia St.

  
	
   

  	
   

  	
  Irvine,
  CA 92614

  	
   

  	
   

  	
   

  	
  Bend,
  OR 97702

  
	
  Telephone:

  	
   

  	
  (949)
  221-7188

  	
   

  	
  Telephone:

  	
   

  	
  (541)
  382-8028

  
	
  Fax:

  	
   

  	
  (949)
  756-2087

  	
   

  	
  Fax:

  	
   

  	
  (541)
  388-1241

  
	
  Email:

  	
   

  	
  jpeterson@microsemi.com

  	
   

  	
  Email:

  	
   

  	
   

  	
  patricks@advancedpower.com

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Optionholder/Stockholder

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ THOMAS LODER

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Thomas A. Loder 

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Vice President Sales & Marketing

  	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  61345
  Mtn Breezes Ct. Bend, OR 97702

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  541-382-8028

  	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  541-388-0364

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  tloder@advancedpower.com

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Shares
  of Company Common Stock

  	
   

  	
   

  	
  Beneficially
  owned shares:

  
	
  owned
  of record:

  	
   

  	
   

  	
  of
  Company Common Stock

  
	
   

  	
   

  	
   

  	
   

  
	
  Number of Shares

  	
   

  	
   

  	
  Number of Shares

  
	
   

  	
   

  	
   

  	
   

  
	
  360,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Options
  to Purchase Shares of Company

  	
   

  	
   

  	
   

  
	
  Common
  Stock

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Number of Shares

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  32,535

  	
   

  	
   

  	
   

  	
   

  
																																					



 


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