PRIVATE PLACEMENT UNIT PURCHASE AGREEMENT
Exhibit 10.7
Private Placement Unit Purchase Agreement
(this “Agreement”) made as of this 8th day
of March, 2006 among Acquicor Technology Inc., a Delaware corporation (the “Company”),
ThinkEquity Partners LLC (“TEP”) as representative of the underwriters of the IPO (solely for the
purposes of Sections 5 and 8 hereof), and each of those persons and entities, severally and not jointly, whose names are set forth on
the Schedule of Purchasers attached hereto as Exhibit A (which persons and entities are hereinafter
collectively referred to as “Purchasers” and each individually as a “Purchaser”).
6.1 Such Purchaser is an “accredited investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act.
6.2 The
Placement Units, Common Stock and Warrants are being acquired for such Purchaser’s own
account, only for investment purposes and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities Act.
6.3 Such Purchaser has the full right, power and authority to enter into this Agreement and
this Agreement is a valid and legally binding obligation of such
Purchaser enforceable against such
Purchaser in accordance with its terms.
The Company shall, as expeditiously as possible and in any event within sixty (60) days after
receipt of a request for a Demand, prepare and file with the SEC a Registration Statement on any
form for which the Company then qualifies or which counsel for the Company shall deem appropriate
and which form shall be available for the sale of all Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution thereof, and shall use its
best efforts to cause such Registration Statement to become effective as promptly as practicable,
but in no event prior to the consummation of the Business Combination.
The Company shall not be obligated to effect more than two Demand Registrations in respect of
Registrable Securities.
7.2 “Piggyback” Registration Rights. Subject to the last sentence of this Section 7.2, at any
time after a Business Combination, if the Company shall determine to proceed with the actual
preparation and filing of a new registration statement under the Securities Act in connection with
the proposed offer and sale of any of its securities by it or any of its security holders (other
than a registration statement on Form X-0, X-0 or other limited purpose form), the Company will
give written notice of its determination to each Holder. Upon a written request
from any Holder, within 15 days after receipt of any such notice from the Company, the Company
will, except as herein provided, cause all of the Registrable Securities covered by such request
(the “Requested Stock”) held by the electing
Holders (each such Holder including shares of Registrable Securities
in such registration, a “Requesting Holder”) to be included in such registration statement (each,
a “Piggy-Back Registration”), all to the
extent required to permit the sale or other disposition
by the prospective seller or sellers of the Requested Stock; provided, further, that nothing herein
shall prevent the Company from, at any time, abandoning or delaying any registration. If any
registration pursuant to this Section 7.2 shall be underwritten in whole or in part, the Company
may require that the Requested Stock be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters. In such event, the
Requesting Holders shall, if requested by the underwriters, execute an underwriting agreement containing
customary representations and warranties by selling stockholders and a lock-up on Registrable
Securities not being sold. If, in the good faith judgment of the managing underwriter of such
public offering, the inclusion of all of the Requested Stock would reduce the number of shares to
be offered by the Company or interfere with the successful marketing of the shares of stock offered
by the Company, the number of shares of Requested Stock otherwise to be included in the
underwritten public offering may be reduced pro rata (by number of
shares of Requested Stock) among the Requesting
Holders and all other holders of registration rights who have requested inclusion of their
securities, or excluded in their entirety if so required by the underwriter. To the extent only a
portion of the Requested Stock is included in the underwritten public offering, those shares of
Requested Stock that are thus excluded from the underwritten public offering and any other
securities of the Company held by the Requesting Holders shall be
withheld from the market by the Requesting Holders
for a period, not to exceed 90 days,
(or such longer period, not to exceed 18 days after the expiration of
the 90-day period, as the underwriters or the Company shall request
in order to facilitate compliance with NASD Rule 2711)
which the managing underwriter reasonably determines is
necessary in order to effect the underwritten public offering. At such time as the provisions of
the registration rights agreement filed as an exhibit to the Registration Statement covering the
shares of Common Stock acquired by the Holders prior to the IPO may be exercised, the exercise
and procedural provisions of such agreement, rather than the provisions of Sections 7.2, 7.3 and
7.4 hereof, shall govern the Registrable Securities with respect to Piggy-Back Registrations.
(a) prepare and file with the SEC a registration statement with respect to such securities,
and use its best efforts to cause such registration statement to become and remain effective until
the earlier of the date on which all of the Registrable Securities included in the registration
statement have been disposed of in accordance with the intended method(s) of distribution set forth
in such Registration Statement or three years from the effective date thereof;
(b) prepare and file with the SEC such amendments to such registration statement, and
supplements to the prospectus contained therein, as may be necessary to keep such registration
statement effective until the earlier of the date on which all of the Registrable Securities
included in the registration statement have been disposed of in accordance with the intended
method(s) of distribution set forth in such Registration Statement or three years from the
effective date thereof;
(c) furnish
to the Holders participating in such registration, and to the underwriters of the
securities being registered, such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as such Holders may reasonably
request in order to facilitate the public offering of such securities;
(d) use its best efforts to register or qualify the securities covered by such registration
statement under such state securities or blue sky laws of such
jurisdictions as the Holders may
reasonably request in writing within 20 days following the original filing of such registration
statement, except that the Company shall not for any purpose be required to execute a general
consent to service of process or to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
(e) notify the Holders, promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any prospectus forming a part of
such registration statement has been filed;
(f) notify the Holders promptly of any request by the SEC for the amending or supplementing of
such registration statement or prospectus or for additional information;
(g) prepare and promptly file with the SEC and promptly notify such Holders of the filing of
such amendment or supplement to such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating to such securities
is required to be delivered under the Securities Act, any event shall have occurred as the result
of which any such prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not misleading; and
(h) advise the Holders, promptly after it shall receive notice or obtain knowledge thereof, of
the issuance of any stop order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for that purpose and promptly use its
best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued.
Each Holder shall cooperate with the Company in providing the information necessary to effect the
registration of the Registrable Securities, including completion of customary questionnaires.
10. Governing Law. This Agreement shall for all purposes be deemed to be made under and shall
be construed in accordance with the laws of the State of New York. Each of the parties hereby
agrees that any action,
proceeding or claim against it arising out of or relating in any way to this Agreement shall
be brought and enforced in the courts of the State of New York or the United States District Court
for the Southern District of New York, and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
written above.
| ACQUICOR TECHNOLOGY INC. A Delaware Corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | President | |||
| THINKEQUITY PARTNERS LLC as representative of the underwriters |
||||||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxxx X. Xxxxx | ||||||
| Title: Managing Director & Director of Equity Syndicate | ||||||
| ACQUICOR MANAGEMENT LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx, PhD | |||
| Name: | Xxxxxxx X. Xxxxxx, PhD | |||
| Title: | Manager | |||
| /s/ Xxxxxx X. Xxxxx, Ed.D. | |||
| Xxxxxx X. Xxxxx, Ed.D. | |||
| /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | |||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
Exhibit A
SCHEDULE OF PURCHASERS
| Aggregate | ||||||||
| Name | Units | Purchase Price | ||||||
Acquicor Management LLC |
208,333 | $ | 1,249,998.00 | |||||
Xxxxxx X. Xxxxx, Ed.D. |
41,667 | 250,002.00 | ||||||
Xxxx X. Xxxxxx |
41,667 | 250,002.00 | ||||||
Xxxxx X. Xxxxxx |
41,667 | 250,002.00 | ||||||
Total: |
333,334 | $ | 2,000,004.00 | |||||