AFFILIATE AGREEMENT October 24, 2006
October
24, 2006
Microsemi
Corporation
0000
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
Ladies
and Gentlemen:
Subject
to the last paragraph below, I have been advised that as of the date hereof
I
may be deemed to be an “affiliate” of PowerDsine Ltd., an Israeli company (the
“Company”), as the term “affiliate” is defined for purposes of paragraphs (c)
and (d) of Rule 145 (“Rule 145”) of the rules and regulations of the Securities
and Exchange Commission (the “SEC”) under the U.S. Securities Act of 1933, as
amended (collectively, the “1933 Act”). I have been further advised that
pursuant to the terms of the Agreement and Plan of Merger dated as of October
24, 2006 (the “Merger Agreement”), by and among Microsemi Corporation, a
Delaware corporation (“Parent”), Pinnacle Acquisition Corporation Ltd and the
Company, and that as a result of consummation of the transactions contemplated
by the Merger Agreement (including the merger of Merger Sub with and into the
Company (the “Merger”)), (i) each Company Share outstanding as of the Effective
Time shall automatically be converted into the right to receive, inter
alia,
0.1498
shares of Parent Common Stock, and (ii) except as otherwise provided in the
Merger Agreement, each option, warrant, convertible note or other convertible
or
exercisable security entitling the holder thereof to acquire Company Shares
(the
“Company Derivative Securities”) will be converted into, inter
alia,
an
option, warrant, convertible note or other security to acquire shares of Parent
Common Stock at a price and in an amount based on the Option Exchange Ratio
set
forth in the Merger Agreement (the “Parent Derivative Securities”).
As
used
in this document, “Parent Securities” shall mean, collectively, (i) any shares
of Parent Common Stock, (ii) any Parent Derivative Securities and (iii) any
shares of Parent Common Stock issuable upon exercise, exchange or conversion
of
Parent Derivative Securities, in each case issued pursuant to the Merger.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Merger Agreement.
I
hereby
represent, warrant and covenant to Parent that in the event I receive any Parent
Securities pursuant to the Merger:
1. I
shall
not make any sale, transfer or other disposition of Parent Securities in
violation of the 1933 Act.
2. I
have
carefully read this letter and the Merger Agreement and discussed their
requirements and other applicable limitations upon my ability to sell, transfer
or otherwise dispose of Parent Securities to the extent I believed necessary
with my counsel or with counsel for the Company.
3. I
have
been advised that any issuance of Parent Securities to me pursuant to the Merger
Agreement will be issued in reliance on the exemption from registration provided
by Section 3(a)(10) of the 1933 Act or pursuant to a registration statement
on
Form S-4. However, I have also been advised that, since at the time the Merger
is submitted to the shareholders of the Company for approval, I may be an
“affiliate” of the Company, any sale or disposition by me of any of the Parent
Securities may only be made, under current law, in accordance with Rule 145
under the 1933 Act, pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption thereunder. I agree that I will
not
sell, transfer, or otherwise dispose of Parent Securities issued to me in the
Merger unless (i) such sale, transfer or other disposition has been registered
under the Securities Act; (ii) such sale, transfer or other disposition is
made
in conformity with the volume and other limitations of Rule 145 promulgated
by
the SEC under the 1933 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.
4. I
understand that Parent is under no obligation to register the sale, transfer
or
other disposition of the Parent Securities by me or on my behalf or to take
any
other action necessary to make compliance with an exemption from registration
available.
5. I
understand that, subject to paragraph 7 below, stop transfer instructions may
be
given to Parent’s transfer agent with respect to the Parent Securities and that
there will be placed on the certificates or other documents evidencing the
Parent Securities issued to me, or any substitutions therefor, a legend stating
in substance:
“The
shares represented by this certificate have been issued in a transaction to
which Rule 145 promulgated under the U.S. Securities Act of 1933 applies and
may
be sold or otherwise transferred only in compliance with the requirements of
Rule 145 or pursuant to a registration statement under said act or an exemption
from such registration.”
6. I
also
understand that unless the transfer by me of my Parent Securities has been
registered under the Securities Act or is a sale made in conformity with the
provisions of Rule 145, Parent reserves the right to put the following legend
on
the certificates or other documents evidencing the Parent Securities issued
to
any transferee:
“The
sale
of the shares represented by this certificate has not been registered under
the
U.S. Securities Act of 1933, as amended (the “Securities Act”), and the shares
were acquired from a person who received such shares in a transaction to which
Rule 145 promulgated under the Securities Act applies. The shares have been
acquired by the holder not with a view to, or for resale in connection with,
any
distribution thereof within the meaning of the Securities Act and may not be
sold, pledged or otherwise transferred except in accordance with an exemption
from the registration requirements of the Securities Act.”
2
It
is
understood and agreed that this letter agreement shall terminate and be of
no
further force and effect and the legends set forth in paragraphs (5) or (6)
above, as the case may be, shall be removed by delivery of substitute
certificates without such legend, and the related stop transfer restrictions
shall be lifted forthwith, if (i) any such Parent Securities shall have been
registered under the Securities Act for sale, transfer or other disposition
by
me or on my behalf and are sold, transferred or otherwise disposed of, or (ii)
any such Parent Securities are sold in accordance with the provisions of
paragraphs (c), (e), (f) and (g) of Rule 144 promulgated under the Securities
Act, or (iii) I am not at the time an affiliate of Parent and have been the
beneficial owner of the Parent Securities for at least one year (or such other
period as may be prescribed by the Securities Act and the Rules and
Regulations), and Parent has filed with the SEC all of the reports it is
required to file under the 1934 Act, during the preceding 12 months, or (iv)
I
am not and have not been for at least three months an affiliate of Parent and
have been the beneficial owner of the Parent Securities for at least two years
(or such other period as may be prescribed by the Securities Act), or (v) Parent
shall have received a letter from the Staff of the SEC, or a written opinion
of
counsel, which opinion and counsel shall be reasonably acceptable to Parent,
to
the effect that the stock transfer restrictions and the legend are not required.
In
the
event the Merger Agreement is terminated in accordance with its terms, this
Affiliate Letter shall also terminate.
3
My
execution of this letter should not be considered an admission on my part that
I
am an “affiliate” of the Company as described in the first paragraph of this
letter agreement, or as a waiver of any rights I may have to object to any
claim
that I am an affiliate on or after the date of this letter agreement.
| Very truly yours, | ||
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| By: | ||
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Name:
Address:
Facsimile:
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