Exhibit
4.1
This SECOND SUPPLEMENTAL
INDENTURE , dated as of September 19, 2008 (this
“Second Supplemental Indenture”), is made by and among
TOWER SEMICONDUCTOR LTD. , an Israeli company
(“Parent”), JAZZ TECHNOLOGIES, INC.
(formerly known as Acquicor Technology Inc.), a Delaware
corporation (the “Company”), JAZZ
SEMICONDUCTOR, INC. , a Delaware corporation, and
NEWPORT FAB, LLC , a Delaware limited liability
company (together the “Guaranteeing Subsidiaries”), and
U.S. BANK NATIONAL ASSOCIATION , as Trustee (the
“Trustee”), under the Indenture referred to herein.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Indenture referred
to below.
WITNESSETH:
WHEREAS , the Company and the Trustee are parties to an
Indenture dated as of December 19, 2006, as amended and
supplemented by the Supplemental Indenture (the “First
Supplemental Indenture”) dated as of April 3, 2007 (as
amended and supplemented, the “Indenture”), providing
for the issuance of 8% Convertible Senior Notes due 2011 (herein
called the “Securities”);
WHEREAS , Parent, the Company and Armstrong Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Parent
(“Merger Sub”), have entered into an Agreement and Plan
of Merger and Reorganization (the “Merger Agreement”),
dated as of May 19, 2008, pursuant to which Merger Sub will merge
with and into the Company (the “Merger”), with the
Company remaining as the surviving corporation in the Merger and a
wholly owned subsidiary of Parent;
WHEREAS , upon the Merger, each outstanding share of
Common Stock will be converted into the right to receive 1.8
ordinary shares, par value NIS 1.00 (“Parent Ordinary
Shares”), of Parent in accordance with the Merger
Agreement;
WHEREAS , Section 10.12 of the Indenture provides
that in the case of any merger of another Person with or into the
Company (other than a merger that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock), then the Person resulting from
such merger shall enter into a supplemental indenture with the
Trustee providing that the Holder of each Security then Outstanding
shall have the right thereafter, during the period such Security
shall then be convertible as specified in Section 10.1 of the
Indenture, to convert such Security only into the kind and amount
of cash, securities or other property receivable upon such merger
by a holder of the number of shares of Common Stock of the Company
into which such Security might have been converted immediately
prior to such merger;
WHEREAS , Section 7.1 of the Indenture provides that the
Company and the Trustee may amend the Indenture and the Securities
without the consent or affirmative vote of any Holders of the
Securities for the purposes specified therein;
WHEREAS , this Second Supplemental Indenture has been
duly authorized by all necessary corporate action on the part of
Parent, the Company (including a Board Resolution) and the
Guaranteeing Subsidiaries;
WHEREAS , the Trustee is authorized to execute and
deliver this Second Supplemental Indenture; and
WHEREAS , all things necessary to make this Second
Supplemental Indenture a valid indenture and agreement according to
its terms have been done.
NOW, THEREFORE , in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Parent, the Company, the Guaranteeing
Subsidiaries and the Trustee mutually covenant and agree as follows
for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE
1
EFFECT OF
MERGER
SECTION 1.1
Conversion of
Securities.
(a) In accordance with Section 10.12 of the
Indenture, at and after the effective time of the Merger, the
Holder of each Security then Outsta
