ThinkEquity Partners LLC As representative of the several Underwriters 600 Montgomery St., 8th Floor San Francisco, CA 94111 Acquicor Technology Inc. 4910 Birch St., Suite #102 Newport Beach, CA 92660 Re: Acquicor Technology Inc. Initial Public...
Exhibit 10.3
___________, 2006
ThinkEquity Partners LLC
As representative of the several Underwriters
000 Xxxxxxxxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
As representative of the several Underwriters
000 Xxxxxxxxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Re: Acquicor Technology Inc. Initial Public Offering — Lock-up 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 in 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 I 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, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the
Representative that the undersigned will not publicly announce any intention to, will not authorize
any affiliate or subsidiary, if applicable, to, and will not, without the prior written consent of
the Representative on behalf of the Underwriters, directly or indirectly, (i) offer, pledge, sell,
transfer or otherwise dispose of, by contract, option, right or otherwise, any Insider Shares
beneficially owned by the undersigned (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) or lend, grant or otherwise transfer or dispose of any such
Insider Shares, or (ii) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic characteristics of ownership of such Insider Shares (whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery of such Insider
Shares, in cash or otherwise), during the Lock-Up Period.
Notwithstanding the foregoing, [the undersigned may transfer his or her Insider Shares to the undersigned’s ancestors,
descendants or spouse or to trusts for the benefit of such persons or the undersigned]1
[the undersigned may distribute Insider Shares to its members
(and the Insider Shares may subsequently be transferred by such members to their ancestors,
descendants or spouse or to trusts for the benefit of such persons or the member); provided that
prior to any such transfer, such transferee executes an agreement, satisfactory to the
Representative and the Company pursuant to which such transferee agrees to receive and hold such Insider Shares
subject to the provisions hereof].2
| 1 | To be included in the Lock-up Agreements with each of Xx. Xxxxx and Messrs. Kensey and Meidar. | |
| 2 | To be included in the Lock-up Agreement with Acquicor Management LLC. |
The undersigned agrees that during the Lock-Up Period the certificates representing such
Insider Shares owned by the undersigned shall bear the legends set forth on Exhibit A attached
hereto.
The undersigned acknowledges and understands that the Underwriters and the Company will rely
upon the agreements set forth herein in proceeding with the IPO. The undersigned agrees and
consents to the entry of stop transfer instructions with the Company’s transfer agent against the
transfer of Insider Shares except in compliance with the terms and conditions of this letter
agreement.
This letter agreement shall be binding on the undersigned and such person’s respective
successors, heirs, personal representatives and assigns. This letter agreement shall terminate on
the Lock-Up Period Termination Date.
This letter agreement shall be governed by and interpreted and construed in accordance with
the laws of the State of New York applicable to contracts formed and to be performed entirely
within the State of New York, without regard to the conflicts of law provisions thereof to the
extent such principles or rules would require or permit the application of the laws of another
jurisdiction.
No term or provision of this letter agreement may be amended, changed, waived, altered or
modified except by written instrument executed and delivered by the party against whom such
amendment, change, waiver, alteration or modification is to be enforced.
| Sincerely, |
||||
| By: | ||||
| Name: | ||||
| Title (if applicable): | ||||
SCHEDULE I
SUPPLEMENTAL COMMON DEFINITIONS
Unless the context shall otherwise require, the following terms shall have the following respective
meaning for all purposes, and the following definitions are equally applicable to both the singular
and the plural forms and the feminine, masculine and neuter forms of the terms defined.
“Business Combination” shall mean the acquisition by the Company, whether by merger, capital stock
exchange, stock purchase, asset acquisition or other similar type of transaction or a combination
of any of the foregoing, of one or more domestic and/or foreign
operating businesses in the technology, multimedia and networking sectors having a fair market
value (as calculated in accordance with the requirements set forth in the Company’s Amended and
Restated Certificate of Incorporation), either individually or
collectively, of at least 80% of the Company’s net assets at the time of
such acquisition; provided, however, that any acquisition of multiple operating businesses shall
occur simultaneously with one another.
“Business Combination Date” shall mean the date upon which a Business Combination is
consummated.
“Effective Date” shall mean the date upon which the Registration Statement is declared effective
under the Securities Act of 1933, as amended, by the SEC.
“Insiders” shall mean all holders of the
Company’s
capital stock immediately prior to the Company’s IPO.
“Insider
Shares” shall mean all shares of Common Stock of the Company
owned by the Insiders immediately prior to the Company’s IPO (excluding the Private Placement Shares). For the avoidance
of doubt, Insider Shares shall not include any (i) Private Placement
shares purchased by such Insider in connection with the Private Placement or (ii) IPO Shares purchased by such Insider in connection
with or subsequent to the Company’s IPO.
“IPO Shares” shall mean all shares of Common Stock issued by the Company in its IPO, regardless of
whether such shares were issued to an Insider or otherwise.
“Lock-Up Period” shall mean the period commencing on (inclusive of such date) the Effective
Date and ending on the earlier of (i) the third anniversary of the Effective Date and (ii) the
date, after the initial Business Combination, on which the Company (or the surviving entity of the
Business Combination) consummates a merger, capital stock exchange, stock purchase, asset
acquisition or other similar type of transaction which results in all of the stockholders of the
Company (or the surviving entity of the Business Combination) having the right to exchange their
shares of Common Stock for cash, securities or other property.
“Lock-Up Period Termination Date” shall mean the close of business on the last day of the Lock-Up
Period.
“Private Placement” shall mean the sale of Units by the Company pursuant to the
Private Placement Unit Purchase Agreement, dated as of
,
between the Company, ThinkEquity Partners LLC and the purchasers
listed on Exhibit A thereto.
“Private Placement Shares” shall mean all shares of Common Stock issued by the Company in the
Private Placement and all shares of Common Stock issuable upon the exercise of the Warrants issued
by the Company in the Private Placement (such shares of Common Stock and Warrants issued as
components of the Units issued in the Private Placement).
“Registration Statement” shall mean the registration statement filed by the Company on Form S-1
(No. 333-128058) with the SEC on September 2, 2005, and any amendment or supplement thereto, in
connection with the Company’s IPO.
“SEC” shall mean the United States Securities and Exchange Commission.
EXHIBIT A
LOCK-UP LEGENDS FOR PLACEMENT ON CERTIFICATES
REPRESENTING INSIDER SHARES
REPRESENTING INSIDER SHARES
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AGREEMENT BY THE REGISTERED HOLDER
HEREOF NOT TO SELL, TRANSFER OR ENCUMBER SUCH SHARES UNTIL THE EARLIER OF (I) THE THIRD ANNIVERSARY
OF THE EFFECTIVE DATE OF THE COMPANY’S REGISTRATION STATEMENT ON FORM S-1 FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION (FILE NO. 333-128058) AND (II) THE DATE, AFTER THE INITIAL BUSINESS
COMBINATION, ON WHICH THE COMPANY (OR THE SURVIVING ENTITY OF THE BUSINESS COMBINATION) CONSUMMATES
A MERGER, CAPITAL STOCK EXCHANGE, STOCK PURCHASE, ASSET ACQUISITION OR OTHER SIMILAR TYPE OF
TRANSACTION WHICH RESULTS IN ALL OF THE STOCKHOLDERS OF THE COMPANY (OR THE SURVIVING ENTITY OF THE
BUSINESS COMBINATION) HAVING THE RIGHT TO EXCHANGE THEIR SHARES OF COMMON STOCK FOR CASH,
SECURITIES OR OTHER PROPERTY, UNLESS AN OPINION OF COUNSEL IS PROVIDED SATISFACTORY TO THE COMPANY
THAT SUCH EARLIER SALE IS PERMISSIBLE UNDER THE AFOREMENTIONED AGREEMENT.
