**Exhibit 10.76**

 

**NON-COMPETITION AGREEMENT**

 

ThisNon-competition Agreement (this “Agreement”)is dated as of November 11, 2005, among Microsemi Corporation, a Delawarecorporation (“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 themeaning 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, asmay be amended from time to time (including such amendments, herein called the *“Merger Agreement”*) by and among Parent, APTAcquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent(“Merger Sub”), and Company, it is proposed that Parent shall issue shares ofParent Common Stock and/or Parent Stock Options (the “New Shares”) in exchangefor issued shares of Company Common Stock (as defined below) (the “Shares”) andoptions to  purchase Company Common Stock(the  “Options”) pursuant to the MergerAgreement; and

 

WHEREAS,as a condition and inducement to Parent consummating the Merger, Parent hasrequired 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 tominimize the risk that the Parent will lose the benefits of the goodwill andother assets being acquired from the Merger Sub, the Obligor has agreed torestrict his activities in accordance with the terms and conditions of thisAgreement.

 

AGREEMENT

 

NOW,THEREFORE, in consideration of the premises, and of the representations,warranties, covenants and agreements contained herein, and other good andvaluable consideration, the receipt of and sufficiency of which the partieshereto hereby acknowledge, the parties hereto hereby agree as follows:

 

1.*    Definitions.*    Asused in this Agreement, the following terms shall have the following meanings:

 

(a)    “Restricted Business” shall meanany activity customarily associated with Advanced Power Technology’s ordinarycourse of business.

 

(b)    ”Restricted Territory” shall mean the globalgeographic area.

 

2.*    Agreement Not To Compete.*

 

(a)*    Agreement.*    TheObligor agrees that for a two-year period from the date of this Agreementthrough the date that is the second  anniversary of the Effective Date, Obligorshall not directly or indirectly engage in or have any ownership interest in,or participate in the financing, operation, management or control of, anyperson, firm, corporation or business that 

 

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engagesin a Restricted Business in a Restricted Territory, *provided* that this provision shall not prohibit the Obligorfrom owning up to five percent (5%) of any class of outstanding bonds,preferred stock or shares of common stock of any such entity.

 

(b)    *ConfidentialInformation*. The Obligor hereby acknowledges that he makes use of,acquires and adds to confidential information of a special and unique natureand value relating to the Merger Sub and its strategic plan and financialoperations. The Obligor further recognizes and acknowledges that allconfidential information is the exclusive property of Merger Sub, is materialand confidential, and is critical to the successful conduct of the business of MergerSub. Accordingly, the Obligor hereby covenants and agrees that he will useconfidential information for the benefit of the Merger Sub only and shall notat any time, directly or indirectly, during the term of this Agreement andthereafter divulge, reveal or communicate any confidential information to anyperson, firm, corporation or entity whatsoever, or use any confidentialinformation 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 separatecovenants (or any part thereof) contained in the preceding paragraphs of thisSection 2, the parties agree to renegotiate such provision in good faith,in order to maintain the economic position enjoyed by each party as closely aspossible to that under the provision rendered unenforceable. In the event thatthe parties cannot reach a mutually agreeable and enforceable replacement forsuch provision, then (i) such provision shall be excluded from this Agreement,(ii) the balance of the Agreement shall be interpreted as if such provisionwere so excluded and (iii) the balance of the Agreement shall be valid andenforceable in accordance with its terms. Each provision of this Agreement isseparable from any other provisions of this Agreement, and each part of eachprovision of this Agreement is severable from every other part of suchprovision.

 

(d)*    Reformation.*    Inthe event that the provisions of this Section 2 should ever be deemed toexceed the duration or geographic limitations or scope permitted by applicablelaw, then such provisions shall be reformed to the maximum time or geographiclimitations or scope, as the case may be, permitted by applicable laws.

 

(e)*    Injunctions; SpecificPerformance.*    The Obligor acknowledges that itwould be impossible to determine the amount of damages that would result fromany breach of any of the provisions of this Section 2 and that the remedyat law for any breach, or threatened breach, of any of such provisions wouldlikely be inadequate and, accordingly, agrees that the Parent or the Companyshall, in addition to any other rights or remedies which it may have, beentitled to seek such equitable and injunctive relief as may be available fromany court of competent jurisdiction to restrain the Obligor from violating anyof such provisions of this Agreement or to cause the Obligor to perform any ofsuch provisions. In connection with any action or proceeding for injunctiverelief, the Obligor hereby waives the claim or defense that a remedy at lawalone is adequate and agrees, to the maximum extent permitted by law, to haveeach 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 orrestraining any breach or threatened breach of such provisions of thisSection 2.

 

3.*    Miscellaneous.*

 

(a)Amendments and Waivers. Any term of this Agreement may be amended or waivedwith the written consent of the parties or their respective successors andassigns. Any amendment or 

 

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waivereffected in accordance with this Section 3(a) shall be binding upon the partiesand their respective successors and assigns.

 

(b)Governing Law. This Agreement and all acts and transactions pursuant hereto andthe rights and obligations of the parties hereto shall be governed, construedand interpreted in accordance with the laws of the State of Delaware, withoutgiving effect to principles of conflicts of law.

 

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

 

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

 

(e)Notices. Any notice or other communication required or permitted to bedelivered to any party under this Agreement shall be in writing and shall bedeemed properly delivered, given and received (i) when delivered by hand; (ii)on the day sent by facsimile, provided that the sender has receivedconfirmation of transmission as of or prior to 5:00 p.m. local time of therecipient, on such day; (iii) the first business day after sent by facsimile(to the extent that (A) the sender has received confirmation of transmission after5:00 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 businessday after sent by registered mail or by courier or express delivery service, ineach case to the address or facsimile number set forth on the signature page tothis Agreement beneath the name of such party, or to such other address orfacsimile number as such party shall have specified in a written notice givento 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 |   |
|                                  |                           |  |  |  |  |  |  |  |  |  |  |

 

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(f)Disclosure. Obligor hereby agrees to permit Parent and the Company to publishand disclose in the Registration Statement (including all documents andschedules filed with the SEC) and the Proxy Statement/Prospectus, and in anypress release or other disclosure document in which Parent or the Companyreasonably determines in its good faith judgment that such disclosure isrequired by law, including the rules and regulations of the SEC, asappropriate, in connection with the Merger and any transactions relatedthereto, such Obligor’s identity and ownership of the Shares and New Shares andthe nature of the commitments, arrangements and undertakings under this Agreement.

 

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

 

(h)Entire Agreement, etc. ThisAgreement (i) constitutes the entire agreement, and supersedes all otherprior agreements, understandings, representations and warranties both writtenand oral among the parties with respect to the subject matter hereof, and(ii) shall not be transferable or assignable by operation of law orotherwise and is not intended to create any obligations to, or rights inrespect of, any persons other than the parties hereto; *provided*, that the Parent may assign anyof its rights and obligations hereunder to any of its subsidiaries or to anyother entity which may acquire all or substantially all of the assets, sharesor business of the Parent or any of its subsidiaries or any entity with or intowhich the Parent or any of its subsidiaries may be consolidated or merged.

 

(i)*    *Jurisdiction*.*    Anylegal action or proceeding with respect to this Agreement may be brought in thesuperior courts of the State of California sitting in Orange County, Californiaor federal district courts of the United States of America for the CentralDistrict of California and, by execution and delivery of this Agreement, theparties hereby accept for themselves and in respect of their property,generally and unconditionally, the jurisdiction of the aforesaid courts. Theparties irrevocably consent to the service of process out of any of theaforementioned courts in any such action or proceeding by the delivery ofnotice as provided in this Agreement, such service to become effective thirty (30) daysafter such delivery.

 

4.*    Term of Agreement;Termination.*    This Agreement shall terminateupon the earlier of the date, if any, of termination of the Merger Agreement inaccordance with its terms or the expiration of the period described in Section2(a) of this Agreement. Upon such termination, no party shall have any furtherobligations or liabilities hereunder; *provided,however,* such termination shall not relieve any party from liabilityfor any breach of this Agreement prior to such termination.

 

**(SIGNATUREPAGE FOLLOWS)**

 

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**(SIGNATURES)**

 

IN WITNESS WHEREOF,the parties have executed this Non-competition Agreement as of the date firstwritten 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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