Acquicor Technology Inc. 8% Convertible Senior Notes due 2011 PURCHASE AGREEMENT
Exhibit
10.1
Execution
Version
$145,000,000
8%
Convertible Senior Notes due 2011
December
18, 2006
CRT
Capital Group LLC
▇▇▇▇▇▇▇
& Company, LLC
▇/▇
▇▇▇
Capital Group LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Acquicor
Technology Inc., a corporation organized under the laws of the State of Delaware
(the “Company”),
hereby confirms to CRT Capital Group LLC (“CRT”)
and
▇▇▇▇▇▇▇ & Company, LLC (“▇▇▇▇▇▇▇”
and
together with CRT, the “Initial
Purchasers”),
its
agreement to issue and sell its 8% Convertible Senior Notes due 2011 to the
Initial Purchasers, as set forth below.
1. The
Transactions.
(a) Subject
to the terms and conditions herein contained, the Company proposes to issue
and
sell to the Initial Purchasers $145,000,000 aggregate principal amount of its
8%
Convertible Senior Notes due 2011 (the “Firm
Notes”).
The
Company also agrees to issue to the Initial Purchasers an option to purchase
up
to an additional $21,750,000 aggregate principal amount of its 8% Convertible
Senior Notes due 2011 (the “Option
Notes”
and,
together with the Firm Notes, the “Notes”).
The
initial conversion rate of the Notes is 136.426 shares of common stock, $0.0001
par value per share, of the Company (the “Common
Stock”
or
“Conversion
Shares”)
per
each $1,000 principal amount of Notes, subject to adjustment in certain
circumstances. The Notes will (i) have the terms and provisions which are
described in the Offering Memorandum (as defined below) under the heading
“Description of Notes” and such other terms as are customary, and (ii) be issued
pursuant to the provisions of the Indenture (the “Indenture”),
to be
dated as of December 19, 2006, between the Company and U.S. Bank National
Association, as trustee (the “Trustee”)
on a
private placement basis pursuant to an exemption from registration under Section
4(2) and Regulation D under the Securities Act of 1933, as amended (the
“Securities
Act”).
The
Notes and the Conversion Shares are hereinafter referred to collectively as
the
“Securities.”
The
offer and sale of the Securities is hereinafter referred to as the “Offering.”
Holders of the Securities will have the registration rights set forth in a
registration rights agreement (the “Registration
Rights Agreement”),
to be
dated as of December 19, 2006, among the Company and the Initial Purchasers,
relating to the resale of the Securities under the Securities Act.
(b) Subject
to approval by the Company’s stockholders, it is proposed that a wholly-owned
subsidiary of the Company will merge with and into Jazz Semiconductor, Inc.
(“Jazz”),
pursuant to an Agreement and Plan of Merger (the “Merger
Agreement”),
dated
as of September 26, 2006, by and among the Company, Joy Acquisition Corp.,
Jazz
and TC Group, L.L.C. as Jazz’s stockholders’ representative (the “Merger”),
and
the Company intends to use all or a portion of the proceeds of the Offering
to
effect the Merger. Pending the satisfaction of certain release conditions
contained in an escrow agreement (the “Escrow
Agreement”),
to be
dated as of December 19, 2006, among the Company, the Trustee and U.S. Bank
National Association, as escrow agent (the “Escrow
Agent”),
the
gross proceeds from the Offering, including the Initial Purchasers’ discount,
will be placed in an escrow account (the “Escrow
Account”)
with
the Escrow Agent. Pending (i) the release of the funds in the Escrow Account
upon stockholder approval of the Merger and the Authorized Share Increase (as
defined below) to pay the merger consideration in connection with the Merger
upon the terms described in the Offering Memorandum (as defined below) and
other
costs payable in connection with the Merger and general purposes or (ii)
application of the funds in the Escrow Account for payment of the redemption
price in connection with a Special Mandatory Redemption (as defined in the
Indenture), such funds will be invested by the Escrow Agent only in specified
securities such as a money market fund meeting the criteria of Rule 2a-7 under
the Investment Company Act of 1940, as amended, or in securities that are direct
obligations of, or obligations guaranteed as to principal and interest by,
the
United States. The Escrow Agreement will provide that the Escrow Agent will
release the funds as directed by the Trustee upon satisfaction of certain
conditions and that the Merger will occur immediately after the release of
the
funds. If the Company’s stockholders have not approved the Merger and certain
amendments to the Company’s certificate of incorporation on or before May 31,
2007, or prior to such date the Company’s stockholders vote not to approve the
Merger or certain amendments to the Company’s certificate of incorporation, the
funds in the Escrow Account will be released to redeem all of the Notes at
100%
of the principal amount plus any interest income earned on the funds in the
Escrow Account. While the gross proceeds from the Offering are held in the
Escrow Account, the Trustee will have a perfected first priority security
interest in the gross proceeds, pursuant to the terms of a Pledge and Security
Agreement (the “Security
Agreement”),
to be
dated as of December 19, 2006, between the Company and the Trustee, as
collateral agent (the “Collateral
Agent”),
which
security interest will have been perfected pursuant to a Control Agreement
(the
“Control
Agreement”)
dated
as of December 19, 2006 among the Company, the Collateral Agent, the Escrow
Agent and U.S. Bank, National Association, as securities intermediary.
(c) In
connection with the sale of the Securities, the Company has prepared and
delivered to the Initial Purchasers an Offering Memorandum, dated December
12,
2006, in form and substance satisfactory to the Initial Purchasers and a
Supplement to Offering Memorandum dated December 15, 2006 (together, the
“Offering
Memorandum”),
and a
Preliminary Offering Memorandum, dated November 22, 2006, and Supplements to
Preliminary Offering Memorandum dated December 7, 2006 and December 11, 2006,
each in form and substance satisfactory to the Initial Purchasers (together,
the
“Preliminary
Offering Memorandum”),
each
setting forth information regarding the Company, the Securities and the terms
of
the Offering and the transactions contemplated by the Offering Documents (as
defined below). The Preliminary Offering Memorandum and the Offering Memorandum
each incorporates by reference the following filings by the Company:
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(i) Registration
Statement on Form S-1 filed with the Securities and Exchange Commission (the
“Commission”)
on
March 9, 2006;
(ii) Post-Effective
Amendment No. 1, filed March 15, 2006, to Registration Statement on Form
S-1;
(iii) Prospectus
dated March 15, 2006, filed with the Commission on March 16, 2006;
(iv) Current
Reports on Form 8-K filed with the Commission on March 21, 2006, March 27,
2006,
April 14, 2006, September 29, 2006 and November 21, 2006;
(v) Quarterly
Reports on Form 10-Q for the fiscal quarters ended March 31, 2006, June 30,
2006
and September 30, 2006, filed with the Commission on May 15, 2006, August 14,
2006 and November 14, 2006, respectively; and
(vi) Preliminary
Proxy Statement on Schedule 14A, filed with the Commission on November 20,
2006
(the “Proxy
Statement”).
(all
such
documents listed in clauses (i) through (vi) above (including any exhibits
thereto that are expressly incorporated by reference therein) are referred
to
herein as the “Incorporated
Documents”).
Any
references herein to the Offering Memorandum or the Preliminary Offering
Memorandum shall be deemed to include, in each case, all amendments and
supplements thereto as of the date of this Agreement and the Incorporated
Documents and any amendments thereto made prior to the completion of the
Offering, including without limitation the Current Report on Form 8-K filed
with
the Commission on December 15, 2006. The Company hereby confirms that it has
authorized the use of the Offering Memorandum and the Preliminary Offering
Memorandum in connection with the offering and resale of the Securities by
the
Initial Purchasers.
(d) This
Agreement, the Securities, the Indenture, the Registration Rights Agreement,
the
Escrow Agreement and the Security Agreement are herein referred to as the
“Offering
Documents.”
2. Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with the Initial
Purchasers:
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(a) On
the
date hereof, the Offering Memorandum does not contain any untrue statement of a
material fact, and does not omit to state a material fact necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 2 do not apply to statements or omissions made in reliance
upon
and in conformity with information relating to the Initial Purchasers and
furnished to the Company in writing by the Initial Purchasers expressly for
use
in the Offering Memorandum. No injunction or written order has been issued
to
the Company that either (i) asserts that any of the transactions contemplated
by
the Offering Documents is subject to the registration requirements of the
Securities Act or (ii) would prevent or suspend the issuance or sale of any
of
the Securities or the use of the Offering Memorandum in any jurisdiction. The
Company has not distributed, and will not distribute, prior to the later of
the
Closing Date (or any Additional Closing Date) and the completion of the Initial
Purchasers’ distribution of the Securities, any offering material in connection
with the offering and sale of the Securities other than the Preliminary Offering
Memorandum and the Offering Memorandum.
(b) As
of
their respective filing dates, each of the Incorporated Documents complied
in
all material respects with the requirements of the Securities Act or the
Exchange Act of 1934, as amended (the “Exchange
Act”),
as
applicable, and the rules and regulations of the Commission thereunder
applicable to the Incorporated Documents. Except as disclosed in the Offering
Memorandum, as of their respective filing dates, the financial statements of
each of the Company and Jazz included or incorporated by reference in the
Offering Memorandum complied as to form in all material respects with then
applicable accounting requirements and with the published rules and regulations
of the Commission with respect thereto, were prepared in accordance with
generally accepted accounting principles in the United States, applied
consistently with the past practices of the Company or Jazz, as applicable,
and
as of their respective dates, fairly presented in all material respects the
financial position of the Company or Jazz, as applicable, and the results of
their respective operations as of the time and for the periods indicated therein
(except as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Form 10-Q, and Regulations S-K and S-X
of
the Commission). The financial and statistical information included or
incorporated by reference in the Offering Memorandum presents fairly the
information included therein and, if so required, has been prepared on a basis
consistent with that of the financial statements that are included in the
Incorporated Documents and is derived from the books and records of the
respective entities presented therein and, to the extent such information is
a
range, projection or estimate, is based on the good faith belief and estimates
of the management of the Company. The assumptions used in preparing the pro
forma financial statements included or incorporated by reference in the Offering
Memorandum provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those assumptions,
and
the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
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(c) Subsequent
to the respective dates as of which information is given in the Offering
Memorandum, except as disclosed in the Offering Memorandum, the Company has
not
declared, paid or made any dividends or other distributions of any kind on
or in
respect of its capital stock and there has been no material adverse change
or
any development which could, individually or in the aggregate, have or result
in
a material adverse change, whether or not arising from transactions in the
ordinary course of business, in or affecting (i) the business, condition
(financial or otherwise), results of operations, properties or prospects of
the
Company and the Company’s subsidiary (the “Subsidiary”)
taken
as a whole; (ii) the long-term debt or capital stock of the Company and the
Subsidiary taken as a whole; or (iii) the ability of the Company to consummate
the Offering or any of the other transactions contemplated by the Offering
Documents (any such change or development being a “Material
Adverse Effect”).
Since
the date of the latest balance sheet included or incorporated by reference
in
the Offering Memorandum, neither the Company nor the Subsidiary has incurred
or
undertaken any liabilities or obligations, whether direct or indirect, accrued
or absolute, liquidated or contingent, matured or unmatured, or entered into
any
transactions, including any acquisition or disposition of any business or asset,
which are material to the Company and the Subsidiary, individually or taken
as a
whole, except for liabilities, obligations and transactions which are disclosed
in the Offering Memorandum.
(d) Except
as
contemplated by this Agreement, the Offering Documents or as disclosed in the
Offering Memorandum, since September 30, 2006, through the date immediately
preceding the Closing Date, the Company has not (i) issued any stock, options,
bonds or other corporate securities other than pursuant to the Company’s option
plans, (ii) borrowed any amount or incurred or become subject to any liabilities
(absolute, accrued or contingent), other than current liabilities incurred
in
the ordinary course of business and liabilities under contracts entered into
in
the ordinary course of business, (iii) discharged or satisfied any lien, charge,
mortgage, pledge, security interest, claim, equity, trust or other encumbrance,
preferential arrangement, defect or restriction of any kind whatsoever (any
“Lien”)
or
adverse claim or paid any obligation or liability (absolute, accrued or
contingent), other than current liabilities shown on the balance sheets of
the
Company and current liabilities incurred in the ordinary course of business,
(iv) declared or made any payment or distribution of cash or other property
to
the stockholders of the Company or purchased or redeemed any securities of
the
Company, (v) mortgaged, pledged or subjected to any Lien or adverse claim any
of
its properties or assets, except for Liens for taxes not yet due and payable
or
otherwise in the ordinary course of business, (vi) sold, assigned or transferred
any of its assets, tangible or intangible, except in the ordinary course of
business or in an aggregate amount less than $250,000, (vii) suffered any
extraordinary losses or waived any rights of material value other than in the
ordinary course of business, (viii) made any capital expenditures or commitments
therefor other than in the ordinary course of business or in an aggregate amount
less than $250,000, (ix) entered into any other transaction other than in the
ordinary course of business in an aggregate amount less than $250,000 or entered
into any material transaction, whether or not in the ordinary course of
business, (x) made any charitable contributions or pledges, (xi) suffered any
damages, destruction or casualty loss, whether or not covered by insurance,
affecting any of the properties or assets of the Company or any other properties
or assets of the Company which could, individually or in the aggregate, have
or
result in a Material Adverse Effect, (xii) made any material change in the
nature or operations of the business of the Company or (xiii) entered into
any
agreement or commitment to do any of the foregoing.
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(e) The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Offering Memorandum and, after giving effect to the Offering, will be
as
set forth in the Offering Memorandum. Except as disclosed in the Offering
Memorandum, all of the issued and outstanding shares of capital stock of the
Company are fully paid and non-assessable and have been duly and validly
authorized and issued, in compliance with all applicable federal, state and
foreign securities laws and are not in violation of or subject to any preemptive
or similar right that does or will entitle any person, upon the issuance or
sale
of any security, to acquire from the Company any Common Stock or other security
of the Company or any security convertible into, or exercisable or exchangeable
for, Common Stock or any other such security (any “Relevant
Security”).
(f) The
Common Stock (including the Conversion Shares) conforms to the descriptions
thereof contained in the Offering Memorandum in all material respects. Except
as
disclosed in, and as of the date or dates disclosed in, the Offering Memorandum,
neither the Company nor the Subsidiary has outstanding warrants, options to
purchase, or any preemptive rights or other rights to subscribe for or to
purchase, or any contracts or commitments to issue or sell, any Common Stock
or
other security of the Company or the Subsidiary or any security convertible
into, or exercisable or exchangeable for, Common Stock or any other such
security.
(g) Upon
the
stockholders’ approval of a proposal to increase the Company’s authorized shares
of Common Stock sufficient to allow for the issuance of the Conversion Shares
(the “Authorized
Share Increase”),
the
Conversion Shares will have been duly authorized and reserved, and if and when
issued upon conversion of the Notes in accordance with their terms and the
Indenture, will be validly issued, fully paid and non-assessable, free of any
preemptive or similar rights and any Liens; and will not be subject to any
restriction upon the voting or transfer thereof pursuant to applicable law
or
the Company’s certificate of incorporation, bylaws or governing documents or any
agreement to which the Company or the Subsidiary is a party or by which any
of
them may be bound.
(h) The
Subsidiary is wholly-owned by the Company. The Subsidiary is the only subsidiary
of the Company. All of the issued shares of capital stock of or other ownership
interests in the Subsidiary have been duly and validly authorized and issued
and
are fully paid and non-assessable and are owned directly or indirectly by the
Company free and clear of any Lien.
(i) Each
of
the Company and the Subsidiary has been duly organized and validly exists as
a
corporation in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and the Subsidiary has all requisite
corporate power and authority to carry on its business as described in the
Offering Memorandum, and to own, lease and operate its respective properties.
Each of the Company and the Subsidiary is duly qualified to do business and
is
in good standing as a foreign corporation in each state in the United States
in
which the character or location of its properties (owned, leased or licensed)
or
the nature or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing which would not
reasonably be expected to cause (individually and in the aggregate) a Material
Adverse Effect.
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(j) The
Company has the requisite power and authority to execute, deliver and perform
its obligations under the Notes. The Notes have been duly and validly authorized
by the Company for issuance and, when executed by the Company and authenticated
by the Trustee in accordance with the provisions of the Indenture and when
delivered to and paid for by the Initial Purchasers in accordance with the
terms
hereof, will have been duly executed, issued and delivered and will constitute
valid and legally binding obligations of the Company free of any Liens, entitled
to the benefits of the Indenture and enforceable against the Company in
accordance with their terms except insofar as indemnification and contribution
provisions may be limited by applicable law and except that the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally, and general principles of
equity (regardless of whether such enforcement is considered in a proceeding
at
law or in equity) (the preceding exceptions, collectively, the “Enforceability
Exceptions”)
and
will be convertible into the Conversion Shares in accordance with their terms.
At the Closing Date, the Notes will be in the form contemplated by the Indenture
in all material respects.
(k) The
Company has the requisite power and authority to execute, deliver and perform
its obligations under the Indenture. The Indenture has been duly and validly
authorized by the Company and meets the requirements for qualification under
the
Trust Indenture Act of 1939, as amended (the “TIA”),
and,
when executed and delivered by the Company (assuming the due authorization,
execution and delivery by the Trustee), will constitute a valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be limited by the
Enforceability Exceptions.
(l) The
Company has the requisite power and authority to execute, deliver and perform
its obligations under this Agreement, the Registration Rights Agreement, the
Security Agreement and the Escrow Agreement. This Agreement, the Registration
Rights Agreement, the Security Agreement and the Escrow Agreement have been
duly
and validly authorized by the Company and when executed and delivered by the
Company (assuming the due authorization, execution and delivery by the other
parties thereto), will constitute valid and legally binding agreements of the
Company, enforceable against the Company in accordance with their respective
terms, except that the enforcement thereof may be limited by the Enforceability
Exceptions.
(m) There
exists as of the date hereof (after giving effect to the transactions
contemplated by each of the Offering Documents) no event or condition that
would
constitute a default or an event of default under any of the Offering
Documents.
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(n) The
execution, delivery, and performance of this Agreement, the Indenture, the
Registration Rights Agreement, the Security Agreement and the Escrow Agreement
and the consummation of the transactions contemplated by the Offering Documents
do not and will not conflict with, require consent under or result in a breach
of any of the terms and provisions of, or constitute a default (or an event
which with notice or lapse of time, or both, would constitute a default) under
or violate or result in the creation or imposition of any Lien upon any property
or assets of the Company or the Subsidiary pursuant to, (i) any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant, instrument, franchise, license
or permit to which the Company or the Subsidiary is a party or by which the
Company or the Subsidiary or their respective properties, operations or assets
may be bound; (ii) any provision of the certificate or articles of
incorporation, bylaws or other organizational documents of the Company or the
Subsidiary; or (iii) any law, rule, regulation, ordinance, directive, judgment,
decree or order of any judicial, regulatory or other legal or governmental
agency or body, domestic or foreign, having jurisdiction over the Company,
the
Subsidiary or any of its or their properties; except, in the case of clauses
(i)
and (iii) above as have been or will be obtained, as may be required under
Federal or state securities laws in connection with the filing and effectiveness
of the Shelf Registration Statement as contemplated by the Registration Rights
Agreement, under Federal or state securities laws in connection with the
distribution of the Securities by the Initial Purchasers, in connection with
the
qualification of the Indenture under the TIA or in connection with the listing
of the Conversion Shares on the American Stock Exchange, or could not reasonably
be expected to have a Material Adverse Effect.
(o) On
the
Closing Date, the Security Agreement will be effective to create, in favor
of
the Trustee for the benefit of the holders of the Notes as security for the
Notes, a valid and enforceable security interest in the Collateral (as defined
in the Security Agreement). Each of the Company and the Subsidiary is a
“registered organization” (as defined in Article 9 of the applicable Uniform
Commercial Code) under the law of the state in which it is identified in the
Indenture as being organized, and on the Closing Date all security interests
granted under the Security Agreement will be duly perfected pursuant to Section
9-314 of the New York Uniform Commercial Code upon execution and delivery of
the
Control Agreement.
(p) Except
as
disclosed in the Offering Memorandum, each of the Company and the Subsidiary
has
such permits, licenses, consents, exemptions, franchises, authorizations and
other approvals (each, a “Consent”)
of,
and has made all filings with and given all notices to, all governmental or
regulatory authorities and self-regulatory organizations and all courts and
other tribunals as are necessary to own, lease, license and operate its
respective properties and to conduct its business, and, in all material respects
complying therewith, except where the failure to have any such Consent or to
make any such filing or notice would not, singly or in the aggregate, have
a
Material Adverse Effect. Each of the Company and the Subsidiary is in compliance
in all material respects with the rules, regulations and applicable laws and
orders of the authorities and governing bodies having jurisdiction with respect
thereto; and to the knowledge of the Company no event has occurred (including),
without limitation, the receipt of any written notice from any such authority
or
governing body) that would result in or, after notice or lapse of time or both,
would result in, revocation, suspension or termination of any such Consent
or
would result in or, after notice or lapse of time or both, would result in
any
other impairment of the rights of the holder of any such Consent; except where
such failure to be in compliance or the occurrence of any such event or the
presence of any such restriction would not, singly or in the aggregate, have
a
Material Adverse Effect.
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(q) Except
as
disclosed in the Offering Memorandum, no Consent, filing, order, registration,
approval, authorization qualification of, with or from any judicial, regulatory
or other legal or governmental agency or body or any third party, foreign or
domestic, is required by the Company for the execution, delivery and performance
of this Agreement, the Indenture, the Registration Rights Agreement, the
Security Agreement and the Escrow Agreement or consummation of the Offering
and
the other transactions contemplated by the Offering Documents, including the
issuance, sale and delivery of the Notes (and the issuance of the Conversion
Shares upon conversion of the Notes), except such Consents as may be required
under the rules of the American Stock Exchange or state securities or “blue sky”
laws or the approval of the Commission of a resale registration statement as
contemplated by the Registration Rights Agreement. No consent, approval or
authorization of the stockholders of the Company is required in connection
with
the issuance of the Securities.
(r) Except
as
disclosed in the Offering Memorandum, there is no judicial, regulatory, arbitral
or other legal or governmental proceeding or other claim, action, suit, inquiry,
litigation, or arbitration, domestic or foreign, pending to which the Company
or
the Subsidiary is a party or of which any property, operations or assets of
the
Company or the Subsidiary is the subject which, individually or in the
aggregate, if determined adversely to the Company or the Subsidiary, could
reasonably be expected to have a Material Adverse Effect, and to the best of
the
Company’s knowledge, no such proceeding, claim, action, suit, litigation or
arbitration is threatened or contemplated. The Company has delivered to the
Initial Purchasers all comment letters received from the
Commission.
(s) BDO
▇▇▇▇▇▇▇, LLP, which examined the financial statements of the Company at December
31, 2005 and the period from August 12, 2005 (inception) to December 31, 2005
contained in the Incorporated Documents, is, to the best of the Company’s
knowledge, an independent public accounting firm as required by the Securities
Act and the Exchange Act.
(t) The
Company is subject to and in full compliance with the reporting requirements
of
Section 13 or 15(d) of the Exchange Act and files reports with the Commission
on
the ▇▇▇▇▇ System. The Common Stock is registered pursuant to Section 12(b)
of
the Exchange Act and the outstanding shares of Common Stock are listed on the
American Stock Exchange, and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or de-listing the Common Stock from the American Stock
Exchange, nor has the Company received any written notification that the
Commission or the American Stock Exchange is contemplating terminating such
registration or listing or that the Company is not in compliance with the
continuing listing or maintenance requirements of the American Stock
Exchange.
-9-
(u) The
Company and the Subsidiary have filed in a timely manner each document or report
required to be filed by each pursuant to the Exchange Act, including, without
limitation, the Incorporated Documents. The Company has provided the Initial
Purchasers copies of all correspondence between the Company and the Commission
regarding the Proxy Statement.
(v) The
Company and the Subsidiary maintain a system of internal accounting and other
controls sufficient to provide reasonable assurances that (i) transactions
are
executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with United States generally accepted accounting
principles and to maintain accountability for assets, (iii) access to assets
is
permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accounting for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(w) To
the
extent required by the Exchange Act, the Company and the Subsidiary has
established and maintains and evaluates “disclosure controls and procedures” (as
such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act); such disclosure controls and
procedures and internal control over financial reporting are designed to ensure
that material information relating to the Company, including its consolidated
subsidiaries, is made known to each of the Company’s chief executive officer and
chief financial officer by others within the Company, and such disclosure
controls and procedures and internal control over financial reporting are
effective to perform the functions for which they were established; the
Company’s independent auditors and audit committee have been advised of: (i) all
significant deficiencies, if any, in the design or operation of internal control
over financial reporting which could adversely affect the Company’s ability to
record, process, summarize and report financial data and (ii) all fraud, if
any,
whether or not material, that involves management or other employees who have
a
role in the Company’s internal control over financial reporting; all material
weaknesses, if any, in internal control over financial reporting have been
identified to the Company’s independent auditors and audit committee; since the
date of the most recent evaluation of such disclosure controls and procedures
and internal control over financial reporting, there have been no significant
changes in internal control over financial reporting or in other factors that
could significantly affect internal control over financial reporting, except
for
any corrective actions with regard to significant deficiencies and material
weaknesses disclosed in the Offering Memorandum; the principal executive
officers (or their equivalents) and principal financial officers (or their
equivalents) of the Company have made all certifications required by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”)
and
any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct; and
the Company, the Subsidiary and the Company’s board of directors and officers
are each in compliance in all material respects with all applicable effective
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations of the
Commission promulgated thereunder.
-10-
(x) None
of
the Company, the Subsidiary or any of their affiliates or any person acting
on
its or their behalf (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S) the Securities or any security of the same
class or series of the Securities or (ii) has offered or will offer or sell
the
Securities (A) in the United States by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the Securities
Act or (B) with respect to any such securities sold in reliance on Rule 903
of
Regulation S under the Securities Act, by means of any directed selling efforts
within the meaning of Rule 902(c) of Regulation S. Neither the Company nor
the
Subsidiary has entered or will enter into any contractual arrangement with
respect to the distribution of the Securities except for this Agreement and
the
Registration Rights Agreement.
(y) The
proceeds to the Company from the offering of the Securities will not be used
to
purchase or carry any security in violation of Regulation T, U and X of the
Board of Governors of the Federal Reserve System.
(z) Neither
the Company nor any of its affiliates (within the meaning of Rule 144 under
the
Securities Act) has taken, directly or indirectly, any action that constitutes
or is designed to cause or result in, or which could reasonably be expected
to
constitute, cause or result in, the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Securities.
(aa) Except
as
described in the Offering Memorandum, no holder of any Relevant Security has
any
rights to require registration of any Relevant Security as part or on account
of, or otherwise in connection with the Offering and any of the other
transactions contemplated by the Offering Documents.
(bb) The
Company is not and, immediately after the sale of the Securities as contemplated
hereunder will not be an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of
the
Commission thereunder.
(cc) Except
as
disclosed in the Offering Memorandum, no relationship, direct or indirect,
exists between or among the Company or any affiliate of the Company, on the
one
hand, and any director, officer, stockholder, customer or supplier of the
Company or any affiliate of the Company, on the other hand, which is required
by
the Exchange Act to be described in the Company’s periodic reports, which is not
so described as required in such reports.
(dd) Each
of
the Company and the Subsidiary owns or leases all such properties as are
necessary to the conduct of their respective businesses as presently operated
and as proposed to be operated as described in the Offering Memorandum. The
Company and the Subsidiary have good and marketable title in fee simple to
all
real property and good and marketable title to all personal property owned
by
them, in each case free and clear of all Liens except such as are described
in
the Offering Memorandum or such as could not reasonably be expected to have
a
Material Adverse Effect; and any real property and buildings held under lease
or
sublease by the Company and the Subsidiary are held by them under valid,
subsisting and enforceable leases or subleases with such exceptions as are
not
material to, and do not interfere with, the use made and proposed to be made
of
such property and buildings by the Company and the Subsidiary.
-11-
(ee) The
Company and the Subsidiary each owns, licenses or possesses all patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets
and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in the connection with the business now operating by them
that
are necessary for the conduct of the business (“Intellectual
Property”)
of the
Company and the Subsidiary, except where failure to own, license or possess
or
otherwise to be able to acquire such intellectual property would not singly,
or
in the aggregate, have a Material Adverse Effect. To the knowledge of the
Company, the Intellectual Property does not infringe on or conflict with the
rights or intellectual property of third parties, and neither the Company nor
the Subsidiary has received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property that, singly
or in the aggregate, if the subject of unfavorable decision, ruling or finding,
would have a Material Adverse Effect, in each case except as described in the
Offering Memorandum.
(ff) Each
of
the Company and the Subsidiary has prepared and timely filed all federal, state,
local, foreign and other material tax returns that are required to be filed
by
it and has paid or made provision for the payment of all taxes, assessments,
governmental or other similar charges, including, without limitation, all
material sales and use taxes and all taxes which the Company or the Subsidiary
is obligated to withhold from amounts owing to employees, creditors and third
parties, with respect to the periods covered by such tax returns (whether or
not
such amounts are shown as due on any tax return). There is no tax Lien, whether
imposed by any federal, state, local, foreign or other taxing authority,
outstanding against the assets, properties or business of the Company or the
Subsidiary.
(gg) No
collective bargaining agreement covering any employee of the Company or the
Subsidiary exists that is binding on either the Company or the Subsidiary,
and,
to the Company’s knowledge, no petition has been filed or proceeding instituted
by an employee or group of employees of either the Company or the Subsidiary
with the National Labor Relations Board seeking recognition of a bargaining
representative. To the Company’s knowledge, no organizational effort currently
is being made or threatened by or on behalf of any labor union to organize
any
employees of either the Company or the Subsidiary, and there is no threatened,
imminent or current labor strike, dispute or organized work stoppage in effect
by the employees of either the Company or the Subsidiary which could have or
result in a Material Adverse Effect.
(hh) No
“prohibited transaction” (as defined in either Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ERISA”),
or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to
time
(the “Code”)), “accumulated funding deficiency” (as defined in Section 302 of
ERISA) or other event of the kind described in Section 4043(b) of ERISA (other
than events with respect to which the 30-day notice requirement under Section
4043 of ERISA has been waived) has occurred with respect to any employee benefit
plan (as defined in Section 3(3) of ERISA) for which the Company or the
Subsidiary would have any liability; each employee benefit plan (as defined
in
Section 3(3) of ERISA) for which the Company or the Subsidiary would have
any liability is in compliance in all material respects with applicable law,
including, without limitation, ERISA and the Code; the Company has not incurred
and does not expect to incur material liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any “pension plan” (as
defined in Section 3(2)); and each pension plan (as defined in Section 3(2))
for
which the Company would have any material liability that is intended to be
qualified under Section 401(a) of the Code is so qualified and, to the Company’s
knowledge, nothing has occurred, whether by action or by failure to act, which
could cause the loss of such qualification.
-12-
(ii) Each
of
the Company and the Subsidiary is in compliance in all material respects with
all rules, laws and regulations relating to the use, treatment, storage and
disposal of toxic substances and protection of health or the environment
(“Environmental
Law”)
which
are applicable to its business; (ii) neither the Company nor the Subsidiary
has received any written notice from any governmental authority or third party
of an asserted claim under Environmental Laws; (iii) each of the Company
and the Subsidiary has received all permits, licenses and other approvals
required of it under applicable Environmental Laws to conduct its business
and
is in compliance with all terms and conditions of any such permit, license
or
approval; (iv) to the Company’s knowledge, no facts currently exist that will
require the Company or the Subsidiary to make future material capital
expenditures to comply with Environmental Laws; and (v) no property which
is or has been owned, leased or occupied by the Company or the Subsidiary has
been designated as a Superfund site pursuant to the Comprehensive Environmental
Response, Compensation of Liability Act of 1980, as amended (42 U.S.C. Section
9601, et seq.) (the “CERCLA
1980”)
or
otherwise designated as a contaminated site under applicable state or local
law.
Neither the Company nor the Subsidiary has been named as a “potentially
responsible party” under the CERCLA 1980. In the ordinary course of its
business, the Company periodically reviews the effect of Environmental Laws
on
the business, operations and properties of the Company and the Subsidiary,
in
the course of which the Company identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On
the
basis of such review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a Material
Adverse Effect.
(jj) The
Company and the Subsidiary maintain insurance of the types, against such losses
and in the amounts and with such insurers as are customary in the Company’s
industry and otherwise reasonably prudent, including risks customarily insured
against by similarly situated companies, all of which insurance is in full
force
and effect, except where failure of the Company or the Subsidiary to maintain
such insurance or failure of such insurance to be in full force and effect
would
not reasonably be expected to have, singly or in the aggregate, a Material
Adverse Effect.
-13-
(kk) All
material agreements to which the Company and the Subsidiary are parties and
which are required to have been filed by the Company pursuant to the Securities
Act, the Exchange Act, and the rules and regulations thereunder have been filed
by the Company with the Commission. As of the date hereof, except as disclosed
in the Incorporated Documents, except for those agreements that by their terms
are no longer in effect and except as would not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect, each such agreement
is
in full force and effect and is binding on the Company and, to the Company’s
knowledge, is binding upon such other parties, in each case in accordance with
its terms, and neither the Company nor, to the Company’s knowledge, any other
party thereto is in breach of or default under any such agreement. Except as
disclosed in the Incorporated Documents, the Company has not received any
written notice regarding the termination of any such agreements.
(ll) Neither
the Company nor the Subsidiary (i) is in violation of its certificate of
incorporation, bylaws, or other organizational documents, or (ii) is in default
under, and no event has occurred which, with notice or lapse of time or both,
would constitute a default under or result in the creation or imposition of
any
Lien upon any of its property or assets pursuant to, any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant, instrument, franchise, license
or
permit to which it is a party or by which it is bound or to which any of its
property or assets is subject, or has received a notice or claim of any such
default or has knowledge of any breach of such contracts by the other party
or
parties thereto, except where the consequences of such violation would not
reasonably be expected to have a Material Adverse Effect, and except (in the
case of clause (ii) above) defaults or Liens disclosed in the Offering
Memorandum.
(mm) The
certificates for the shares of Common Stock (including the Conversion Shares)
conform to the requirements of the American Stock Exchange and the General
Corporation Law of the State of Delaware.
(nn) Except
as
described in the Offering Memorandum, the Company and the Subsidiary have
complied with and established such boards and policies as required by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. The Company is subject to and is in compliance
with
all of the requirements of the American Stock Exchange.
(oo) Other
than CRT or ▇▇▇▇▇▇▇ (as the Initial Purchasers), no finder, broker, agent,
financial person or other intermediary has acted on behalf of the Company in
connection with the sale of the Securities to the Initial Purchasers, the resale
of the Notes by the Initial Purchasers or the consummation of this Agreement
or
any of the transactions contemplated hereby.
-14-
(pp) The
Merger Agreement is in full force and effect, and there has been no amendment
to
the Merger Agreement or waiver thereunder. To the Company’s knowledge, the
representations and warranties made in the Merger Agreement by each of the
Company and Jazz were true and complete as of the date made and are true and
complete as of the date hereof (except for any representation or warranty that
speaks as of a specific date, which representation or warranty is true and
complete as of such date). There are no actions pending or, to the Company’s
knowledge, threatened, before any court or governmental agency in which it
is
sought to restrain or prohibit, or obtain material damages or other relief
in
connection with, the Merger Agreement or the transaction contemplated
therein.
(qq) Assuming
the accuracy of the Initial Purchasers’ representations and warranties in
Section 4 hereof and their compliance with their agreements in Section 4 hereof,
the offer and sale of the Securities in the manner contemplated by this
Agreement will be exempt from the registration requirements of the Securities
Act by reason of Section 4(2) and Regulation D thereof; and except in connection
with the registration contemplated by the Registration Rights Agreement, it
is
not necessary to qualify an indenture in respect of the Securities under the
TIA.
The
Company acknowledges that the Initial Purchasers and, for purposes of the
opinions to be delivered to the Initial Purchasers pursuant to Section 7 hereof,
counsel to the Company and counsel to the Initial Purchasers will rely upon
the
accuracy and truth of the foregoing representations and hereby consents to
such
reliance.
3. Purchase,
Sale and Delivery of the Securities
(a) On
the
basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Initial Purchasers, and the Initial Purchasers
agree, severally and not jointly, to purchase from the Company, at 100% of
their
principal amount (subject to Section 3(c) hereof), the respective aggregate
principal amount of the Firm Notes set forth opposite the Initial Purchasers’
names on Schedule
1
hereto;
provided,
however,
that
upon satisfaction of certain release conditions contained in the Escrow
Agreement, 3.5% of the principal amount of the Firm Notes set forth opposite
an
Initial Purchaser’s name on Schedule
1
hereto
will be released to such Initial Purchaser.
(b) In
addition, on the basis of the representations, warranties, agreements and
covenants contained herein, and subject to the terms and conditions herein
set
forth, the Company hereby grants an option to the Initial Purchasers to
purchase, severally and not jointly, up to $21,750,000 in aggregate principal
amount Option Notes from the Company at the same price as the purchase price
to
be paid by the Initial Purchasers for the Firm Notes. The option granted
hereunder may be exercised at any time, regardless of whether any of the Firm
Notes have been converted or repurchased by the Company, on or after the Closing
Date to and including the forty-fifth (45th) day following the Closing Date
upon
written or telegraphic notice by the Initial Purchasers to the Company, which
notice may be given from time to time on one or more occasion. Such notice
shall
set forth (i) the amount (which shall be an integral multiple of $1,000 in
aggregate principal amount at issuance) of Option Notes as to which the Initial
Purchasers are exercising the option, and (ii) the time, date and place at
which
such Option Notes will be delivered. Such time and date of delivery is called
the “Additional Closing
Date.”
The
Additional Closing Date must not be later than eight (8) full business days
after the Initial Purchasers exercise the option, with the actual date
determined by the Initial Purchasers. If any Option Notes are to be purchased
(x) each Initial Purchaser agrees, severally and not jointly, to purchase the
respective aggregate principal amount of Option Notes that bears the same
proportion to the total aggregate principal amount of Option Notes to be
purchased as the aggregate principal amount of Firm Notes set forth on
Schedule
1
hereto
opposite the name of such Initial Purchaser bears to the total aggregate
principal amount of Firm Notes and (y) the Company agrees to sell such Option
Notes to the Initial Purchasers. The Initial Purchasers may cancel the option
at
any time prior to its expiration by giving written notice of such cancellation
to the Company.
-15-
(c) Delivery
of and payment for the Notes shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
LLP, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on December 19, 2006, or such
other date as the Initial Purchasers and the Company shall mutually agree,
at
such time and date being herein referred to as the “Closing
Date.”
The
Notes shall be delivered on the Closing Date against payment of the purchase
price therefore by wire transfer of immediately available funds to an account
specified in writing to the Initial Purchasers by the Company. If requested
by
the Initial Purchasers, one or more global securities representing the Notes
shall be registered by the Trustee in the name of Cede & Co., the nominee of
The Depository Trust Company (“DTC”),
and
credited to such accounts as the Initial Purchasers shall request, upon notice
to the Company at least 48 hours prior to the Closing Date.
(d) Notwithstanding
anything to the contrary herein, to the extent that any subsequent purchaser
of
the Notes from the Initial Purchasers identified in a list to be delivered
by
the Initial Purchasers on the date hereof (a “Subsequent
Purchaser”)
has
withdrawn its commitment, as set forth in such list, to purchase all or a
portion of the Notes, or such Subsequent Purchaser has actually made or has
threatened to make any amendments, alterations, modifications, withdrawals,
waivers or breaches of commitment to purchase Notes or fails to perform in
any
under its commitment to purchase Notes, the Initial Purchasers’ obligation to
purchase the Notes under this Agreement shall be terminated or adjusted downward
on a dollar for dollar basis accordingly, at the sole discretion of the Initial
Purchasers.
(e) Delivery
to the Initial Purchasers of and payment for the Option Notes shall be made
on
the Additional Closing Date in the same manner as payment for the Firm
Notes.
4. Offering
by the Initial Purchasers; Representations and Warranties of the Initial
Purchasers.
(a) The
Initial Purchasers propose to make an offering of the Notes at the price and
upon the terms set forth in the Offering Memorandum as soon as practicable
after
the date of this Agreement and as in the judgment of the Initial Purchasers
is
advisable.
-16-
(b) Each
of
the Initial Purchasers, severally and not jointly, represents and warrants
(as
to itself only) that:
(i) It
is a
Qualified Institutional Buyer as defined in Rule 144A under the Securities
Act
(a “QIB”)
and it
will offer the Notes for resale only upon the terms and conditions set forth
in
this Agreement and in the Offering Memorandum.
(ii) It
is not
acquiring the Notes with a view to any distribution thereof that would violate
the Securities Act or the securities laws of any state of the United States
or
any other applicable jurisdiction. It will solicit offers to buy the Notes
only
from, and will offer and sell the Notes only to persons reasonably believed
by
it to be, QIBs; provided,
however,
that in
purchasing such Notes, such persons are deemed to have represented and agreed
as
provided under the caption “Transfer Restrictions” contained in the Preliminary
Offering Memorandum and the Offering Memorandum.
(iii) No
form
of general solicitation or general advertising in violation of the Securities
Act has been or will be used nor will any offers in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act.
5. Certain
Covenants.
For the
purposes of this Section 5, “Closing
Date”
shall
refer to the Closing Date for the Firm Notes and any Additional Closing Date
for
the Option Notes.
(a) The
Company covenants and agrees with the Initial Purchasers that:
(i) The
Company shall use the proceeds of the Offering in the manner described in the
Offering Memorandum under the heading “Use of Proceeds.”
(ii) The
Company will not amend or supplement the Offering Memorandum or any amendment
or
supplement thereto of which the Initial Purchasers shall not previously have
been advised and furnished a copy for a reasonable period of time prior to
the
proposed amendment or supplement and as to which the Initial Purchasers shall
not have given their consent, which consent shall not be unreasonably withheld
or delayed, other than by filing documents under the Exchange Act that are
incorporated by reference therein, without notice to the Initial Purchasers.
The
Company will promptly, upon the reasonable request of the Initial Purchasers
or
counsel to the Initial Purchasers, make any amendments or supplements to the
Offering Memorandum that may be reasonably necessary or advisable in connection
with the resale of the Notes by the Initial Purchasers. As soon as the Company
is advised thereof, the Company will notify the Initial Purchasers and their
counsel, and confirm the notice in writing, of any order preventing or
suspending the use of the Offering Documents, or the suspension of the
qualification or registration of the Securities for offering or the suspension
of any exemption for such qualification or registration of the Securities for
offering in any jurisdiction, or of the institution or threatened institution
of
any proceedings for any of such purposes, and the Company will use its best
efforts to prevent the issuance of any such order and, if issued, to obtain
as
soon as reasonably possible the lifting thereof.
-17-
(iii) In
connection with the Offering, until the Initial Purchasers shall have notified
the Company of the completion of the resale of the Notes, neither the Company
nor any of its affiliates has or will, either alone or with one or more other
persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Notes or attempt to induce any person
to purchase any Notes; and neither the Company nor any of its affiliates will
make bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Notes.
(iv) For
a
period of 90 days after the date of the initial offering of the Notes by the
Initial Purchasers, the Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, any securities of the Company
that are substantially similar to the Securities, including but not limited
to
any securities that are convertible into or exchangeable for, or that represent
the right to receive, Common Stock or any such substantially similar securities,
except with the consent of the Initial Purchasers (which consent shall not
be
unreasonably withheld) and except the filing of a shelf registration statement
covering the Securities and the filing of a registration statement, or
post-effective amendment to the Registration Statement filed on March 9, 2006,
covering the issuance of Common Stock upon exercise of the Company’s outstanding
warrants and the issuance of units upon exercise of the Company’s outstanding
unit purchase options, issuances of securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of warrants
or options, in each case outstanding on the date hereof, grants of employee
stock options or restricted stock pursuant to the terms of a plan approved
by
the Company’s stockholders, or issuances of securities pursuant to the exercise
of such options or the exercise of any other employee stock options outstanding
on the date hereof. The Company will not at any time offer, sell, contract
to
sell, pledge or otherwise dispose of, directly or indirectly, any securities
under circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities Act to
cease to be applicable to the offer and sale of the Notes, except with the
consent of the Initial Purchasers (which consent will not be unreasonably
withheld).
(v) The
Company will use its best efforts to qualify or exempt the Notes for offer
and
sale under the securities or “blue sky” laws of such jurisdictions as the
Initial Purchasers may reasonably designate and the Company will make such
applications and furnish information as may be required for such purposes,
and
will continue any such qualifications or exemptions in effect for as long as
may
be reasonably necessary to complete the distribution of the Securities by the
Initial Purchasers; provided,
however,
that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or to take any other action that would subject it to general
service of process or to taxation in respect of doing business in any
jurisdiction in which it is not otherwise subject.
-18-
(vi) If,
at
any time prior to the completion of the resale by the Initial Purchasers of
the
Securities, any event shall occur as a result of which it is necessary, in
the
opinion of the Company and its counsel or the reasonable judgment of the Initial
Purchasers, to amend or supplement the Offering Memorandum in order to make
such
Offering Memorandum not misleading in the light of the circumstances existing
at
the time it is delivered to a purchaser, or if for any other reason it shall
be
necessary to amend or supplement the Offering Memorandum in order to comply
with
applicable laws, rules or regulations, the Company shall notify the Initial
Purchasers of any such event and forthwith amend or supplement such Offering
Memorandum at its own expense so that, as so amended or supplemented, such
Offering Memorandum will not include an untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not misleading
and
will comply with all applicable laws, rules or regulations.
(vii) The
Company will, without charge, provide to the Initial Purchasers and to counsel
to the Initial Purchasers as many copies of each of the Offering Memorandum
or
any amendment or supplement thereto as the Initial Purchasers or their counsel
may reasonably request.
(viii) The
Company will not take any action prohibited by Regulation M under the Exchange
Act in connection with the distribution of the Securities contemplated
hereby.
(ix) Neither
the Company nor any of its affiliates (within the meaning of Rule 144 under
the
Securities Act) will take, directly or indirectly, any action that constitutes
or is designed to cause or result in, or which could reasonably be expected
to
constitute, cause or result in, the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Securities.
(x) The
Company will cause the Notes to be eligible for clearance and settlement through
DTC.
(xi) The
Company will use its best efforts to effect the inclusion of the Securities
in
the PORTAL Market.
(xii) The
Company will list the Conversion Shares for quotation on the American Stock
Exchange as promptly as possible after the Merger and, in any event, no later
than the effectiveness of the Shelf Registration Statement as contemplated
by
the Registration Rights Agreement.
-19-
(xiii) After
the
Merger, the Company will, at all times, authorize, reserve and keep available,
free of preemptive rights, enough shares of Common Stock for the purpose of
enabling the Company to satisfy its obligations to issue the Conversion Shares
upon conversion of the Notes.
(xiv) Prior
to
the Closing, the Company will not incur any material indebtedness or dispose
of
any material assets or make any material acquisition or change in its business
or operations, except with the Initial Purchasers’ consent, which consent shall
not be unreasonably withheld or delayed. The Company shall not, during the
period commencing on the date hereof and ending on the Closing Date, issue
any
press release or other public communication, or hold any press conference with
respect to the Company’s financial condition, results of operations or the
Offering, without the prior consent of the Initial Purchasers, which consent
shall not be unreasonably withheld or delayed, subject to the Company’s
obligation to comply with applicable laws.
(xv) The
Company shall use its reasonable best efforts to cause the Conversion Shares
to
be issued in compliance with all applicable federal, state and foreign
securities laws and to cause the Conversion Shares not to be issued in violation
of or subject to any preemptive or similar right that does or will entitle
any
person to acquire any Relevant Security from the Company upon issuance or sale
of the Notes or the Conversion Shares.
6. Expenses.
Whether
or not the Offering is consummated or this Agreement is terminated (pursuant
to
Section 11 or otherwise), the Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by the
Company of its obligations hereunder: (a) the negotiation, preparation,
printing, typing, reproduction, execution and delivery of this Agreement and
of
the other Offering Documents, any amendment or supplement to or modification
of
any of the foregoing and any and all other documents furnished pursuant hereto
or thereto or in connection herewith or therewith; (b) the preparation, printing
or reproduction of the Preliminary Offering Memorandum and the Offering
Memorandum and each amendment or supplement; (c) the delivery (including
postage, air freight charges and charges for counting and packaging) to the
Initial Purchasers of such copies of each of the Preliminary Offering Memorandum
and the Offering Memorandum and all amendments or supplements to any of them
as
may be reasonably requested for use in connection with the offer and sale of
the
Notes; (d) the preparation, printing, authentication, issuance and delivery
of
certificates for the Notes and the Conversion Shares, including any stamp taxes
in connection with the original issuance and sale of the Securities; (e) the
exemption from, or registration or qualification of the Securities for offer
and
sale under, the securities or “blue sky” laws of the several states (including
filing fees and the reasonable fees, expenses and disbursements of counsel
to
the Initial Purchasers relating to such registration and qualification); (f)
the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to and related communications
with prospective purchasers of the Notes; (g) the fees and expenses of counsel
(including local and special counsel, if any) for the Company; (h) fees and
expenses of the Trustee, including fees and expenses of their counsel; (i)
fees
and expenses of the Escrow Agent and the collateral agent under the Security
Agreement, including fees and expenses of its counsel; and (j) all expenses
and
listing fees incurred in connection with the application for listing for
quotation of the Common Stock on the American Stock Exchange. Except as set
forth above, the Initial Purchasers will pay all of their own costs and
expenses, including without limitation, the fees and disbursements of their
counsel and transfer taxes on any resales of the Securities offered by
them.
-20-
7. Conditions
of the Initial Purchasers’ Obligations.
For
purposes of this Section 7, “Closing
Date”
shall
refer to the Closing Date for the Notes. The obligations of the Initial
Purchasers to purchase and pay for the Notes are subject to the absence from
any
certificates, opinions, written statements or letters furnished to the Initial
Purchasers pursuant to this Section 7 of any misstatement or omission and to
the
following additional conditions unless waived in writing by the Initial
Purchasers:
(A) The
Initial Purchasers shall have received an opinion, in substantially the form
of
Exhibit
A
attached
hereto, dated the Closing Date, of ▇▇▇▇▇▇ Godward Kronish LLP, counsel to the
Company.
(B) The
Initial Purchasers shall have received a comfort letter, in form and substance
satisfactory to the Initial Purchasers, in their sole discretion, dated December
12, 2006, of BDO ▇▇▇▇▇▇▇, LLP, registered independent auditor of the
Company.
(C) With
respect to the comfort letter of BDO ▇▇▇▇▇▇▇, LLP referred to in the preceding
subsection, the Initial Purchasers shall have received a “bring-down” letter of
BDO ▇▇▇▇▇▇▇, LLP, in form and substance satisfactory to the Initial Purchasers,
in their sole discretion, dated the Closing Date.
(D) The
Initial Purchasers shall have received a comfort letter, in form and substance
satisfactory to the Initial Purchasers, in their sole discretion, dated December
11, 2006, of Ernst & Young LLP, registered independent auditor of Jazz.
(E) With
respect to the comfort letter of Ernst & Young LLP referred to in the
preceding subsection, the Initial Purchasers shall have received a “bring-down”
letter of Ernst & Young LLP, in form and substance satisfactory to the
Initial Purchasers, in their sole discretion, dated the Closing
Date.
(F) The
Initial Purchasers shall have received an opinion, in form and substance
satisfactory to the Initial Purchasers, in their sole discretion, dated the
Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Initial
Purchasers.
(G) The
representations and warranties of the Company contained in this Agreement shall
be true and correct (in the case of representations and warranties qualified
as
to materiality) or true and correct in all material respects (in the case of
all
other representations and warranties) on and as of the Closing Date, and the
Company shall have complied in all material respects with all covenants,
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date.
-21-
(H) The
representations and warranties made in the Merger Agreement by each of the
Company and Jazz shall be true and complete (in the case of representations
and
warranties qualified as to materiality) or true and correct in all material
respects (in the case of all other representations and warranties) on and as
of
the Closing Date (except for any representation or warranty that speaks as
of a
specific date, which representation or warranty shall be true and complete
in
all material respects as of such date).
(I) None
of
the issuance and sale of the Securities pursuant to this Agreement or any of
the
transactions contemplated by this Agreement or any of the other Offering
Documents shall be enjoined (temporarily or permanently) and no restraining
order or other injunctive order shall have been issued; and there shall not
have
been any legal action, statute, order, decree or other administrative proceeding
enacted, instituted or overtly threatened against the Company or against the
Initial Purchasers relating to the issuance or the trading of the Securities
or
the Initial Purchasers’ activities in connection therewith or any other
transactions contemplated by this Agreement or the Offering Memorandum or the
other Offering Documents.
(J) Subsequent
to the date of this Agreement and since the date of the most recent financial
statements in the Offering Memorandum, there shall not have occurred any change,
or any development involving a prospective change in, or affecting the business,
condition (financial or other), properties or results of operations of, the
Company or the Subsidiary or Jazz not disclosed in the Offering Memorandum
that
is, in the judgment of the Initial Purchasers, so material and adverse as to
make it impracticable or inadvisable to proceed with the Offering on the terms
and in the manner contemplated by the Offering Memorandum.
(K) The
Initial Purchasers shall have received certificates, dated the Closing Date
and
signed by the Chairman and Chief Executive Officer and the President, Chief
Operating Officer, Chief Financial Officer and Secretary of the Company, to
the
effect that to the best of their knowledge:
(i) All
of
the representations and warranties of the Company set forth in this Agreement
are true and correct (in the case of representations and warranties qualified
as
to materiality) or true and correct in all material respects (in the case of
all
other representations and warranties) on and as of the Closing Date, and all
covenants agreements, conditions and obligations of the Company to be performed,
satisfied or complied with hereunder on or prior the Closing Date have been
duly
performed, satisfied or complied with, in all material respects.
(ii) The
representations and warranties made by the Company and Jazz in the Merger
Agreement are true and correct (in the case of representations and warranties
qualified as to materiality) or true and correct in all material respects (in
the case of all other representations and warranties) on and as of the Closing
Date (except for any such representation or warranty that speaks as of a
specific date, which representation or warranty is true and complete in all
material respects as of such date).
-22-
(iii) No
event
has occurred and is continuing, as a result of which the Offering Memorandum
including all exhibits and attachments thereto would contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances existing at the time it is delivered to the Initial Purchasers,
not misleading.
(iv) The
issuance and sale of the Notes pursuant to this Agreement and the Offering
Memorandum and the consummation of the transactions contemplated by the Offering
Documents have not been enjoined (temporarily or permanently) and no restraining
order or other injunctive order has been issued and there has not been any
legal
action, order, decree or other administrative proceeding instituted or, to
such
officers’ knowledge, threatened against the Company relating to the issuance or
the trading of the Securities or the Initial Purchasers’ activities in
connection therewith or in connection with any other transactions contemplated
by this Agreement or the Offering Memorandum or the other Offering
Documents.
(v) Subsequent
to the date of this Agreement and since the date of the most recent financial
statements in the Offering Memorandum, there has not occurred (1) any change,
or
any development involving a prospective change, in or affecting the business,
condition (financial or other), properties or results of operations of the
Company or the Subsidiary, not contemplated by the Offering Memorandum, except
for any change or prospective change that would not reasonably be expected
to
result in a Material Adverse Effect upon the Company, (2) any change, or any
development involving a prospective change, in or affecting the business,
condition (financial or other), properties or results of operations of Jazz,
not
contemplated by the Offering Memorandum, except for any change or prospective
change that would not reasonably be expected to result in a Material Adverse
Effect upon Jazz, or (3) any event or development relating to or involving
the
Company or the Subsidiary or any of their respective officers or directors
that
makes any statement made in the Offering Memorandum untrue in any material
respect or that requires the making of any addition to or change in the Offering
Memorandum in order to state a material fact necessary in order to make the
statements made therein not misleading.
(vi) At
the
Closing Date and after giving effect to the consummation of the transactions
contemplated by the Offering Documents there shall exist no Default or Event
of
Default (as defined in the Indenture).
(L) Each
of
the Offering Documents and each other agreement or instrument executed in
connection with the transactions contemplated thereby shall be reasonably
satisfactory in form and substance to the Initial Purchasers and shall have
been
executed and delivered by all the respective parties thereto (other than the
Initial Purchasers) and shall be in full force and effect, and there shall
have
been no material amendments, alterations, modifications or waivers of any
provision thereof since the date of this Agreement.
-23-
(M) The
Initial Purchasers shall have confirmed sales to the Subsequent Purchasers
agreeing to fund a total of $145,000,000, none of the Subsequent Purchasers
shall have actually made or threatened to make any amendments, alterations,
modifications, withdrawals, waivers or breaches with respect to its commitment
to purchase Notes, and the Initial Purchasers shall have no reasonable good
faith belief that such commitments or purchases will not be funded.
(N) All
proceedings taken in connection with the issuance of the Notes and the
transactions contemplated by this Agreement, the other Offering Documents and
all documents and papers relating thereto shall be reasonably satisfactory
to
the Initial Purchasers and counsel to the Initial Purchasers. The Initial
Purchasers and counsel to the Initial Purchasers shall have received copies
of
such papers and documents as they may reasonably request in connection
therewith, all in form and substance reasonably satisfactory to
them.
(O) The
Notes
shall be eligible for clearance on DTC.
(P) At
the
Closing Date, the Company and the Trustee shall have entered into the Indenture,
in form and substance satisfactory to the Initial Purchasers, in their sole
discretion, and the Initial Purchasers shall have received counterparts, dated
the Closing Date and executed by each of the parties thereto and the Notes
shall
have been duly executed and delivered by the Company and duly authenticated
by
the Trustee.
(Q) At
the
Closing Date, each of the Registration Rights Agreement, the Escrow Agreement,
the Security Agreement and the Control Agreement shall have been executed and
delivered by all parties thereto.
(R) Except
as
disclosed in the Offering Memorandum, there are no pending or threatened legal
or governmental proceedings to which the Company or the Subsidiary or Jazz
is a
party or of which any property of the Company or the Subsidiary is the subject,
which, the Initial Purchasers believe, in their sole discretion, if determined
adversely to the Company or the Subsidiary, would individually or in the
aggregate have a Material Adverse Effect on the financial position or results
of
operations of the Company and the Subsidiary taken as a whole; and
(S) The
Company shall have received Limited Waivers in the form of Exhibit
B
hereto
from the parties named therein.
All
such
opinions, certificates, letters, schedules, documents or instruments delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are satisfactory in all respects to the Initial Purchasers and counsel to the
Initial Purchasers. The Company shall furnish to the Initial Purchasers such
conformed copies of such opinions, certificates, letters, schedules, documents
and instruments in such quantities as the Initial Purchasers shall reasonably
request.
-24-
8. Indemnification.
(a) The
Company shall indemnify and hold harmless (i) each Initial Purchaser, (ii)
each
person, if any, who controls an Initial Purchaser within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, and (iii) the
respective members, officers, directors, partners, employees, and agents of
the
Initial Purchasers or any controlling person, from and against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including, but not limited to, reasonable attorneys’ fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any investigation or litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon (x) any untrue statement or alleged untrue statement
of
a material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum or the omission or alleged omission to state in the Preliminary
Offering Memorandum or the Offering Memorandum a material fact necessary to
make
the statements therein in light of the circumstances under which they were
made
not misleading, or (y) any breach by the Company or the Subsidiary of their
respective representations, warranties or agreements set forth herein or of
applicable law; provided,
however,
that
the Company will not be liable pursuant to clause (x) above in any such case
to
the extent, but only to the extent, that any such loss, liability, claim, damage
or expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Initial Purchasers expressly for use in the section entitled
“Plan
of Distribution” therein. The parties acknowledge and agree that such
information provided by or on behalf of the Initial Purchasers consists solely
of the material identified in Section 15 hereof. This indemnity agreement will
be in addition to any liability that the Company may otherwise have, including
under this Agreement. In addition, with respect to any untrue statement or
alleged untrue statement in, or omission or alleged omission from, the
Preliminary Offering Memorandum, the Company shall not be liable to any Initial
Purchaser (or its directors and officers or any person controlling such Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act) from whom the person asserting any such loss, claims,
damages or liabilities purchased the Notes concerned as part of the initial
placement of the Notes by the Initial Purchasers hereunder, to the extent that
any such loss, claims damages or liabilities asserted by such person results
from the fact that there was not sent or given to such person, at or prior
to
the Closing, a copy of the Offering Memorandum, as amended or supplemented,
if
the Company had previously furnished copies thereof to such Initial Purchaser.
Any amounts advanced by the Company to an indemnified party pursuant to this
Agreement shall be returned to the Company if it shall be finally determined
by
a court of competent jurisdiction, not subject to appeal, that such indemnified
party was not entitled to indemnification by the Company.
-25-
(b) Each
Initial Purchaser, severally and not jointly, shall indemnify and hold harmless
(i) the Company, (ii) each person, if any, who controls the Company within
the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and (iii) the officers, directors, partners, employees, representatives and
agents of the Company, from and against any and all losses, liabilities, claims,
damages and expenses whatsoever as incurred (including, but not limited to,
attorneys’ fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any investigation or litigation, commenced or
threatened, or any claim whatsoever and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them
may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact provided by such Initial Purchasers and contained
in the section entitled “Plan of Distribution” of the Offering Memorandum, or
arise out of or are based upon the omission or alleged omission to state in
the
section entitled “Plan of Distribution” of the Offering Memorandum a material
fact necessary to make the statements therein in light of the circumstances
under which they were made not misleading, in each case to the extent, but
only
to the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Initial Purchasers expressly for use therein; provided,
however,
that in
no case shall either Initial Purchaser be liable or responsible for any amount
in excess of the discounts and commissions actually received by such Initial
Purchaser in connection with the sale of the Securities. The parties acknowledge
and agree that such information provided by or on behalf of an Initial Purchaser
consists solely of the material identified in Section 15 hereof. This indemnity
will be in addition to any liability that an Initial Purchaser may otherwise
have, including under this Agreement.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify each party against whom indemnification is to be sought
in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 8, except to the extent the defense of such claim or action
has been materially prejudiced by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party
of
the commencement thereof, the indemnifying party will be entitled to
participate, at its own expense in the defense of such action, and to the extent
it may elect by written notice delivered to the indemnified party promptly
after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party;
provided,
however,
that
counsel to the indemnifying party shall not (except with the written consent
of
the indemnified party) also be counsel to the indemnified party. Notwithstanding
the foregoing, the indemnified party or parties shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless
(i)
the employment of such counsel shall have been authorized in writing by one
of
the indemnifying parties in connection with the defense of such action, (ii)
the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement
of
the action, (iii) the indemnifying party does not diligently defend the action
after assumption of the defense, or (iv) such indemnified party or parties
shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of
the
indemnifying parties (in which case the indemnifying party or parties shall
not
have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses of one such
counsel and any local counsel shall be borne by the indemnifying parties. No
indemnifying party shall, without the prior written consent of the indemnified
parties, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened claim, investigation, action
or proceeding in respect of which indemnity or contribution may be or could
have
been sought by an indemnified party under this Section 8 or Section 9
hereof (whether or not the indemnified party is an actual or potential party
thereto), unless (x) such settlement, compromise or judgment (A) includes an
unconditional release of the indemnified party from all liability arising out
of
such claim, investigation, action or proceeding, and (B) does not include a
statement as to or an admission of fault, culpability or any failure to act,
by
or on behalf of the indemnified party, and (y) the indemnifying party confirms
in writing its indemnification obligations hereunder with respect to such
settlement, compromise or judgment.
-26-
9. Contribution.
In
order to provide for contribution in circumstances in which the indemnification
provided for in Section 8 is for any reason held to be unavailable from an
indemnifying party or is insufficient to hold harmless a party indemnified
thereunder, the Company, on the one hand, and the Initial Purchasers, on the
other hand, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
liabilities, claims, damages and expenses suffered by the Company, any
contribution received by the Company from persons, other than the Initial
Purchasers, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Securities Act
or
Section 20 of the Exchange Act) to which the Company and the Initial Purchasers
may be subject, in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Initial Purchasers,
on the other hand, from the offering of the Securities or, if such allocation
is
not permitted by applicable law in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault
of
the Company, on the one hand, and the Initial Purchasers, on the other hand,
in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on
the
one hand, and the Initial Purchasers, on the other hand, shall be deemed to
be
in the same proportion as (a) the total proceeds from the offering of the
Securities (net of discounts but before deducting expenses) received by the
Company bear to (b) the discounts and commissions actually received by the
Initial Purchasers, respectively. The relative fault of the Company, on the
one
hand, and the Initial Purchasers, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact
relates to information supplied by the Company or the Initial Purchasers and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro
rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party
and
referred to above in Section 8 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any judicial, regulatory or other legal or governmental agency
or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) in no case shall
either of the Initial Purchasers be required to contribute any amount in excess
of the amount by which the discounts and commissions actually received by such
Initial Purchaser in respect of the Notes resold by the Initial Purchaser in
the
initial placement of such Notes exceeds the amount of any damages which such
Initial Purchaser has otherwise been required to pay by reason of any untrue
or
alleged untrue statement or omission, or alleged omission, and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 9, (A) each person, if any, who controls either of the
Initial Purchasers within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and (B) the respective officers, directors,
partners, employees, representatives and agents of the Initial Purchasers or
any
controlling person shall have the same rights to contribution as such Initial
Purchasers, and (C) each person, if any, who controls any Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and (D) the officers, directors, employees, representatives and
agents of the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this Section 9. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim
for contribution may be made against another party or parties under this
Section 9, notify such party or parties from whom contribution may be
sought, but the failure to so notify such party or parties shall not relieve
the
party or parties from whom contribution may be sought from any obligation it
or
they may have under this Section 9 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent, provided
that
such written consent shall not be unreasonably withheld or delayed.
-27-
10. Survival
Clause.
The
respective representations, warranties, agreements, covenants and indemnities
of
the Company and the Initial Purchasers set forth in this Agreement shall remain
in full force and effect, regardless of (a) any investigation made by or on
behalf of officers, directors, partners, employees, agents, representatives
or
controlling persons referred to in Sections 8 and 9 hereof, and (b) delivery
of
and payment for the Notes, and shall, subject to Section 13 hereof, be binding
upon and shall, subject to Section 13 hereof, inure to the benefit of, any
successors, permitted assigns, heirs and legal representatives of the Company,
the Initial Purchasers and the indemnified parties referred to in Section 8
hereof. The respective agreements, covenants and indemnities set forth in
Sections 6 and 8-20 hereof shall remain in full force and effect, regardless
of
any termination of this Agreement.
11. Termination.
(a)
This Agreement may be terminated in the sole discretion of the Initial
Purchasers by notice to the Company if (i) any conditions to be satisfied
or obligations to be performed hereunder by the Company, including but not
limited to those set forth in Section 7, or for which the Company is
responsible, have not been satisfied or performed in all respects on or prior
to
the Closing Date, or (ii) at or prior to the Closing Date or at prior to the
Additional Closing Date, as the case may be:
(A) any
domestic or international event or act or occurrence has materially disrupted,
or in the opinion of the Initial Purchasers will in the immediate future
materially disrupt, the market for the Company’s securities or securities in
general;
(B) trading
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock
Market shall have been suspended or made subject to material limitations, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq Stock Market, or by order
of
the Commission or other regulatory body or governmental authority having
jurisdiction;
(C) a
banking
moratorium has been declared by any state or federal authority or if any
material disruption in commercial banking or securities settlement or clearance
services shall have occurred;
(D)(1)
there shall have occurred any outbreak or escalation of hostilities or acts
of
terrorism involving the United States or there is a declaration of a national
emergency or war by the United States, or (2) there shall have been any other
calamity or crisis or any change in political, financial or economic conditions
if the effect of any such event in (1) or (2), in the opinion of the Initial
Purchasers, makes it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Notes on the terms and in the manner contemplated
by
the Offering Memorandum; or
(b) Subject
to paragraph (c) below, termination of this Agreement pursuant to this Section
11 shall be without liability of any party to any other party except as provided
in Section 10 hereof.
(c) If
this
Agreement shall be terminated pursuant to any of the provisions hereof, or
if
the sale of the Notes provided for herein is not consummated because any
condition to the obligations of the Initial Purchasers set forth herein is
not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
the
Company will be responsible for expenses as provided in Section 6
herein.
-28-
12. Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing, shall be delivered by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier (provided notice is also given
by
some other means permitted by this Section 12), (iii) one business day after
being deposited with such courier, if made by overnight courier, or (iv) on
the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows: to the Initial Purchasers c/o CRT Capital Group LLC, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇, and with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq., facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇, and if sent to the Company, to Acquicor Technology
Inc.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Secretary,
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, and with a copy to ▇▇▇▇▇▇ Godward Kronish
LLP,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇-▇▇▇▇▇▇▇ aMarca, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇.
13. Successors.
This
Agreement shall inure to the benefit of and be binding upon the Initial
Purchasers and the Company and their respective successors, permitted assigns
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or
any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of
such
persons and for the benefit of no other person except that (a) the indemnities
of the Company contained in Section 8 of this Agreement shall also be for the
benefit of any person or persons who control an Initial Purchaser within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and the respective officers, directors, partners, employees, agents and
representatives of the Initial Purchasers and any such person or persons, and
(b) the indemnities of an Initial Purchaser contained in Section 8 of this
Agreement shall also be for the benefit of the directors, officers, employees,
agents and representatives of the Company and any person or persons who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act. No purchaser of Securities from the Initial Purchasers
will
be deemed a successor or an assign because of such purchase. Prior to the
Closing, no party may assign this Agreement or any of its rights hereunder
without the prior written consent of the other party or parties.
14. No
Waiver; Modifications in Writing.
No
failure or delay on the part of the Company or the Initial Purchasers in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power
or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company
or
the Initial Purchasers at law or in equity or otherwise. No waiver of or consent
to any departure by the Company or the Initial Purchasers from any provision
of
this Agreement shall be effective unless signed in writing by the party entitled
to the benefit thereof; provided
that
notice of any such waiver shall be given to each party hereto as set forth
below. Except as otherwise provided herein, no amendment, modification or
termination of any provision of this Agreement shall be effective unless signed
in writing by or on behalf of the Company and the Initial Purchasers. Any
amendment, supplement or modification of or to any provision of this Agreement,
any waiver of any provision of this Agreement, and any consent to any departure
by the Company or the Initial Purchasers from the terms of any provision of
this
Agreement shall be effective only in the specific instance and for the specific
purpose for which made or given. Except where notice is specifically required
by
this Agreement, no notice to or demand on the Company in any case shall entitle
the Company to any other or further notice or demand in similar or other
circumstances.
-29-
15. Information
Supplied by the Initial Purchasers.
The
statements set forth in the fourth, fifth, sixth, seventh and tenth paragraphs
in the Offering Memorandum under the heading “Plan of Distribution” constitute
the only information furnished by the Initial Purchasers to the Company for
purposes of Sections 8(a) and 8(b) hereof.
16. Default
by an Initial Purchaser.
If
either Initial Purchaser shall breach its obligations to purchase the Notes
that
it has agreed to purchase hereunder on the Closing Date or any Additional
Closing Date, then the other Initial Purchaser may, but shall not be required
to, purchase such Notes or may make arrangements satisfactory to the Company
for
the purchase of the Notes by other persons. If such non-defaulting Initial
Purchaser does not elect to purchase such Notes and arrangements satisfactory
to
the Company for the purchase of such Notes are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part
of
the non-defaulting Initial Purchaser or the Company. Nothing herein shall
relieve the defaulting Initial Purchaser from liability for its
default.
17. Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties hereto and
supersedes all prior agreements, representations, warranties, understandings
and
arrangements, oral or written, among the parties hereto with respect to the
subject matter hereof.
18. No
Fiduciary Obligations.
The
Company acknowledges and agrees that (i) the purchase and sale of the Notes
pursuant to this Agreement, including the determination of the public offering
price of the Notes and any related discounts and commissions and the conversion
rate and other terms for the Notes, is an arm’s-length commercial transaction
between the Company, on the one hand, and the Initial Purchasers, on the other
hand, (ii) in connection with the offering contemplated hereby and the process
leading to such transaction, each Initial Purchaser is and has been acting
solely as a principal and is not the agent or fiduciary of the Company or their
respective stockholders, creditors, employees or any other party, (iii) the
Initial Purchasers have not assumed or will not assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether the Initial
Purchasers have advised or are currently advising the Company or on other
matters) and the Initial Purchasers have no obligation to the Company with
respect to the offering contemplated hereby except the obligations expressly
set
forth in this Agreement, (iv) the Initial Purchasers and their respective
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (v) the Initial Purchasers
have not provided any legal, accounting, regulatory or tax advice with respect
to the offering contemplated hereby and the Company and have consulted their
own
legal, accounting, regulatory and tax advisors to the extent they deemed
appropriate.
19. APPLICABLE
LAW; JURISDICTION; WAIVER OF JURY TRIAL.
THE
VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET
FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO
CONFLICTS OF LAW. The Company agrees that any suit, action or proceeding against
the Company arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any state or federal court in The
City
of New York, New York, and waives any objection which it may now or hereafter
have to the laying of venue of any such proceeding, and irrevocably submits
to
the non-exclusive jurisdiction of such courts in any suit, action or proceeding.
The Company expressly accepts the non-exclusive jurisdiction of any such court
in respect of any such suit, action or proceeding. The Company agrees that
a
final judgment in any such proceeding brought in any such court shall be
conclusive and binding thereupon and may be enforced in any other court in
the
jurisdiction to which the Company is or may be subject by suit upon such
judgment. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY
JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT
OR
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
20. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
-30-
If
the
foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon
this
letter shall constitute a binding agreement between the Company and the Initial
Purchasers.
|
Very
truly yours,
ACQUICOR TECHNOLOGY INC.
a Delaware corporation |
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
| Title: Chairman and Chief Executive Officer | ||
The
foregoing Agreement is hereby confirmed and accepted as of the date first above
written.
CRT
CAPITAL GROUP LLC
By:
/s/
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Managing
Director
▇▇▇▇▇▇▇
& COMPANY, LLC
By:
/s/
▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇
Title:
Managing
Director
Schedule
1
|
Initial
Purchasers
|
Aggregate
Principal Amount of Firm Notes to be Purchased
|
|||
|
CRT
Capital Group LLC
|
$
|
116,000,000
|
||
|
▇▇▇▇▇▇▇
& Company, LLC
|
29,000,000
|
|||
|
$
|
145,000,000
|
|||