Exhibit 10.76


 


NON-COMPETITION AGREEMENT


 


This
Non-competition Agreement (this “Agreement”)
is dated as of November 11, 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 business that 


 


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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 permitted by applicable
law, then such provisions shall be reformed to the maximum time or geographic
limitations or scope, as the case may be, permitted by applicable laws.


 


(e)    Injunctions; Specific
Performance.    The Obligor acknowledges that it
would be impossible to determine the amount of damages that would result from
any breach of any of the provisions of this Section 2 and that the remedy
at law for any breach, or threatened breach, of any of such provisions would
likely be inadequate and, accordingly, agrees that the Parent or the Company
shall, in addition to any other rights or remedies which it may have, be
entitled to seek such equitable and injunctive relief as may be available from
any court of competent jurisdiction to restrain the Obligor from violating any
of such provisions of this Agreement or to cause the Obligor to perform any of
such provisions. In connection with any action or proceeding for injunctive
relief, the Obligor hereby waives the claim or defense that a remedy at law
alone is adequate and agrees, to the maximum extent permitted by law, to have
each such provision of this Section 2 specifically enforced against the Obligor,
without the necessity of posting bond or other security against the Obligor,
and consents to the entry of injunctive relief against the Obligor enjoining or
restraining any breach or threatened breach of such provisions of this
Section 2.


 


3.    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 


 


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waiver
effected in accordance with this Section 3(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 parties hereto addressed as follows:


 


	
  If
  to Parent:

  	
   

  
	
   

  	
   

  	
   

  
	
  Microsemi
  Corporation

  	
   

  
	
  Address

  	
   

  	
  2381
  Morse Avenue

  	
   

  
	
   

  	
  Irvine,
  CA 92614

  	
   

  
	
  Telephone:

  	
   

  	
  (949)
  221-7188

  	
   

  
	
  Fax:

  	
   

  	
  (949)
  756-2087

  	
   

  
	
  Email:

  	
   

  	
  jpeterson@microsemi.com

  	
   

  
	
   

  	
   

  	
   

  
	
  If
  to Company:

  	
   

  
	
  Advanced
  Power Technology, Inc.

  	
   

  
	
  Address

  	
   

  	
  405
  S.W. Columbia Street

  	
   

  
	
   

  	
  Bend,
  OR 97702

  	
   

  
	
  Telephone:

  	
   

  	
  (541)
  382-8028

  	
   

  
	
  Fax:

  	
   

  	
  (541)
  388-0364

  	
   

  
	
  Email:
  

  	
  psireta@advancedpower.com

  	
   

  
	
   

  	
   

  	
   

  
	
  If
  to Obligor:

  	
   

  
	
  Address

  	
   

  	
  405
  S.W. Columbia Street

  	
   

  
	
   

  	
  Bend,
  OR 97702

  	
   

  
	
  Telephone:

  	
   

  	
  (541)
  382-8028

  	
   

  
	
  Fax:

  	
   

  	
  (541)
  388-0364

  	
   

  
	
  Email:
  

  	
  psireta@advancedpower.com

  	
   

  
												



 


3

















 


(f)
Disclosure. Obligor 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 Obligor’s identity and ownership of the Shares and New Shares and
the nature of the commitments, arrangements and undertakings under this Agreement.


 


(g)
Assignment. This Agreement
shall not be assigned by Obligor without the prior written consent of Parent.


 


(h)
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.


 


(i)
    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.


 


4.    Term of Agreement;
Termination.    This Agreement shall terminate
upon the earlier of the date, if any, of termination of the Merger Agreement in
accordance with its terms or the expiration of the period described in Section
2(a) of this Agreement. Upon such termination, no party shall have any further
obligations or liabilities hereunder; provided,
however, such termination shall not relieve any party from liability
for any breach of this Agreement prior to such termination.


 


(SIGNATURE
PAGE FOLLOWS)


 


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(SIGNATURES)


 


IN WITNESS WHEREOF,
the parties have executed this Non-competition Agreement as of the date first
written above.


 


	
  Microsemi Corporation

  	
   

  	
  Advanced Power Technology, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ JAMES PETERSON

  	
   

  	
  By:

  	
  /s/ PATRICK SIRETA

  
	
  Name:

  	
   

  	
  James J. Peterson

  	
   

  	
  Name:

  	
   

  	
  Patrick R.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)
  389-1241

  
	
  Email:

  	
   

  	
  jpeterson@microsemi.com

  	
   

  	
  Email:

  	
   

  	
  psireta@advancedpower.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Obligor

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ PATRICK SIRETA

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Patrick R.H. Sireta

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  President & CEO

  	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  405
  S.W. Columbia St.

  	
   

  	
   

  	
   

  
	
   

  	
  Bend,
  OR 97702

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (541)
  382-8028

  	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  (541)
  389-1241

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  psireta@advancedpower.com

  	
   

  	
   

  	
   

  
																										



 


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