Acquicor
Technology Inc.
4910 Birch St., Suite 102
Newport Beach, CA 92660
Re: Acquicor
Technology Inc. Initial Public Offering — Letter
Agreement
Dear Ladies and
Gentlemen:
This letter is
being delivered to you in accordance with the Underwriting
Agreement (the " Underwriting Agreement ”)
entered into by and between Acquicor Technology Inc., a Delaware
corporation (the “ Company ”), and
ThinkEquity Partners LLC, as representative (the “
Representative ”) of the several underwriters
named on Schedule I thereto (the “
Underwriters ”), relating to an underwritten
initial public offering (the “ IPO ”) of
the Company’s units (the “ Units
”), each comprised of one share of the Company’s common
stock, par value $0.0001 per share (the “ Common
Stock ”), and two warrants, each exercisable for one
share of Common Stock (the “ Warrants ”).
The capitalized terms set forth on Schedule 1 attached
hereto are hereby incorporated by reference.
In order to induce
the Company and the Underwriters to enter into the Underwriting
Agreement and to proceed with the IPO, and in recognition of the
benefit that such IPO will confer upon the undersigned as [a
stockholder of the Company] 1 [a
member of Acquicor Management LLC, the majority stockholder of the
Company] 2
, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees with the Company and
the Representative as follows:
1. If the Company
solicits approval of its stockholders for a Business Combination,
the undersigned shall vote (i) all Insider Shares owned by
such person in accordance with the majority of the votes cast with
respect to IPO Shares by the holders thereof, and (ii) all of
the Private Placement Shares and shares that may be acquired by
such person in the IPO or in the aftermarket in favor of the
Business Combination.
2. [If a Transaction
Failure occurs, the undersigned shall take all reasonable actions
within such person’s power to cause (i) the Trust Fund
to be liquidated and distributed to the holders of the IPO Shares
as soon as practicable and in any event no later than the
Termination Date, and
|
|
|
|
|
1
|
|
Bracketed text
to be included in letter agreement with Acquicor Management LLC,
Dr. Clark and Messrs. Kensey and Meidar.
|
|
|
|
|
|
2
|
|
Bracketed text
to be included in letter agreements with certain directors and all
officers of and all special advisors to the Company.
|
1
(ii) the
Company to dissolve and liquidate as soon as practicable (the
earliest date on which the conditions in clauses (i) and
(ii) are both satisfied being the “ Liquidation
Date ”)]. 3
3. The undersigned
hereby waives any and all right, title, interest or claim of any
kind in or to any distribution of the Trust Fund with respect to
such person’s Insider Shares and Private Placement Shares,
and hereby waives any claim the undersigned may have in the future
as a result of, or arising out of, any contracts or agreements with
the Company and agrees not to seek recourse for any such claim
against the Trust Fund for any reason whatsoever. The undersigned
hereby agrees that the Company shall be entitled to reimbursement
from the undersigned for any distribution of the Trust Fund
received by the undersigned in respect to such person’s
Insider Shares and Private Placement Shares.
4. [Upon a
Transaction Failure, the undersigned agrees to indemnify and hold
harmless the Company, jointly and severally with [___]
(collectively, the “Indemnitors”), in accordance with
their respective beneficial ownership interests in the Company,
against any and all losses, liabilities, claims, damages and
expenses whatsoever (including, but not limited to, any and all
legal or other expenses reasonably incurred in investigating,
preparing or defending against any litigation, whether pending or
threatened, or any claim whatsoever) (collectively,
“Damages” ) to which the Company may
become subject as a result of any claim by any target business with
whom the Company has a written agreement, such as a letter of
intent or confidentiality agreement, except that no such
indemnification obligation shall apply to any Damages with respect
to or arising out of any claims made by a target business that has
signed a release, waiver or similar agreement (whether as part of
such written agreement or otherwise) agreeing that it has no
recourse to the Trust Fund; provided , however , that
the amount of any such indemnification obligation shall be limited
to the amount by which such Damages (i) actually reduce the amount
of funds in the Trust Fund and (ii) are not reimbursed by any
insurance procured by the Company to cover such claims made against
the Trust Fund.] 4 [It
is hereby acknowledged and agreed that if the undersigned is
removed or ceases to be reelected as a director (despite standing
for reelection) of the Company, then his or her indemnification
obligations shall apply only to claims with respect to or arising
out of acts or omissions by the Company during his or her tenure as
a director of the Company.] 5 [It
is hereby acknowledged and agreed that if the undersigned is not
elected or appointed as a director on or prior to the date of the
Company’s second annual meeting of stockholders, then his
indemnification obligations shall apply to claims with respect to
or arising out of acts or omissions by the Company prior to the
second annual meeting of stockholders.] 6
5. [In order to
minimize potential conflicts of interest which may arise from
multiple affiliations, the undersigned agrees to present to the
Company for its consideration, prior to presentation to any other
person or entity, any suitable opportunity to acquire all or
substantially all of the outstanding equity securities of, or
otherwise acquire (through merger, capital stock exchange, stock
purchase, asset acquisition or similar type of business combination
or a combination of any of the foregoing), one or more operating
business that may be reasonably required to be presented to the
Company under Delaware law, until the earlier of the consummation
by the Company of a Business Combination, the distribution of the
Trust Fund or
|
|
|
|
|
3
|
|
Provision to be
included in letter agreements with all directors and officers of
the Company.
|
|
|
|
|
|
4
|
|
Bracketed text
to be included in letter agreements with Dr. Amelio,
Mrs. Hancock and Mr. Wozniak.
|
|
|
|
|
|
5
|
|
Bracketed text
to be included in letter agreements with Dr. Amelio and
Mrs. Hancock.
|
|
|
|
|
|
6
|
|
Bracketed text
to be included in letter agreement with
Mr. Wozniak.
|
2
until such time
as the undersigned ceases to be an officer or director of the
Company; provided , however , that the presentation
of such opportunities to the Company shall in each case be subject
to any fiduciary obligation of the undersigned arising from a
fiduciary relationship established prior to the undersigned’s
fiduciary relationship with the Company.] 7
6. [The undersigned
acknowledges and agrees that the Company will not consummate any
Business Combination which involves a company that is affiliated
with any of the Insiders unless the Company obtains an opinion from
an independent investment banking firm tha
|
