Contract
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 Xxxxxxxxx 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 Outstanding shall have
the
right, during the period such Security shall be convertible as specified in
Section 10.1 of the Indenture, to convert such Security only into a number
of
Parent Ordinary Shares receivable as a result of the Merger by a holder of
the
number of shares of Common Stock of the Company into which such Security was
convertible immediately prior to the Merger, and as further provided pursuant
to
Section 10.12 of the Indenture (which for the avoidance of doubt, shall be
equal to 245.57 Parent Ordinary Shares per
$1,000 aggregate principal amount of Securities).
(b) Following
the effective time of the Merger, the conversion adjustments in Article X of
the
Indenture shall apply as nearly equivalently as may be practicable to the Parent
Ordinary Shares to be issued upon conversion of the Securities as the
application of such conversion adjustments to the Common Stock.
SECTION
1.2 Trustee’s
Acceptance.
The
Trustee hereby accepts this Second Supplemental Indenture and agrees to perform
the same under the terms and conditions set forth in the Indenture.
ARTICLE
2
MISCELLANEOUS
SECTION
2.1 Effectiveness
of Supplemental Indenture.
Upon the
later to occur of (i) the execution and delivery of this Second Supplemental
Indenture by Parent, the Company, the Guaranteeing Subsidiaries and the Trustee
and (ii) the effective time of the Merger, the Indenture shall be supplemented
in accordance herewith, and this Second Supplemental Indenture shall form a
part
of the Indenture for all purposes, and every Holder of Securities heretofore
or
hereafter authenticated and delivered under the Indenture shall be bound
hereby.
SECTION
2.2 Indenture
Remains in Full Force and Effect.
Except
as supplemented hereby, all provisions in the Indenture shall remain in full
force and effect.
SECTION
2.3 Indenture
and Supplemental Indenture Construed Together.
This
Second Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Second Supplemental
Indenture shall henceforth be read and construed together.
SECTION
2.4 Confirmation
and Preservation of Indenture.
The
Indenture as supplemented by this Second Supplemental Indenture is in all
respects confirmed and preserved.
SECTION
2.5 Conflict
with Trust Indenture Act.
If any
provision of this Second Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act (the “TIA”) that is required under
the TIA to be part of and govern any provision of this Second Supplemental
Indenture, the provision of the TIA shall control. If any provision of this
Second Supplemental Indenture modifies or excludes any provision of the TIA
that
may be so modified or excluded, the provision of the TIA shall be deemed to
apply to the Indenture as so modified or to be excluded by this Second
Supplemental Indenture, as the case may be.
SECTION
2.6 Severability.
In case
any provision in this Second Supplemental Indenture shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION
2.7 Headings.
The
Article and Section headings of this Second Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered part of
this Second Supplemental Indenture and shall in no way modify or restrict any
of
the terms or provisions hereof.
SECTION
2.8 Benefits
of Second Supplemental Indenture, etc.
Nothing
in this Second Supplemental Indenture, express or implied, shall give to any
person, other than the parties hereto and their successors hereunder and the
Holders of the Securities, any benefit of any legal or equitable right, remedy
or claim under the Indenture, this Second Supplemental Indenture or the
Securities.
SECTION
2.9 Certain
Duties and Responsibilities of the Trustee.
In
entering into this Second Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct
or
affecting the liability or affording protection to the Trustee, whether or
not
elsewhere herein so provided.
SECTION
2.10 Counterparts.
The
parties may sign any number of copies of this Second Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION
2.11 Governing
Law. THIS
SECOND SUPPLEMENTAL INDENTURE SHALL
BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
THE UNITED STATES OF AMERICA, INCLUDING, WITHOUT LIMITATION, THE NEW YORK
GENERAL OBLIGATIONS LAW §5-1401.
SECTION
2.12 The
Trustee.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Second Supplemental Indenture or for or
in
respect of the recitals contained herein (other than the seventh recital),
all
of which recitals are made solely by the Parent and the Company, as the case
may
be.
[Signature
Pages Follow]
Exhibit
4.1
IN
WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture
to
be duly executed as of the date first written above.
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PARENT:
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Tower
Semiconductor Ltd.
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By:
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/s/Xxxxxxx
Xxxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxxx
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Title:
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Chief
Executive Officer
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COMPANY:
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By:
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/s/Xxxxxxx
Xxxxxx
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Chairman
and Chief Executive Officer
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THE
TRUSTEE:
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U.S.
Bank National Association
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By:
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/s/Xxxxxxx
Xxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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Vice
President
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IN
WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture
to
be duly executed as of the date first written above.
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GUARANTEEING
SUBSIDIARIES:
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Jazz
Semiconductor, Inc.
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By:
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/s/Xxxxxxx
Xxxxxx
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Chairman
and Chief Executive Officer
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Newport
Fab, LLC
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By:
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/s/Xxxxxxx
Xxxxxx
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Manager
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