ASSUMPTION AGREEMENT
Exhibit
4.2
This
Assumption Agreement (this “Assumption
Agreement”)
is
entered into as of September 19, 2008, by and among Jazz Technologies, Inc.
(previously named Acquicor Technology Inc.), a Delaware corporation (the
“Company”),
Tower
Semiconductor Ltd.,
an
Israel company (“Parent”),
and
Continental Stock Transfer & Trust Company, a New York corporation (the
“Warrant
Agent”).
WHEREAS,
the Company and the Warrant Agent are parties to that certain Warrant Agreement
dated as of March 15, 2006 (as clarified by that certain Warrant Clarification
Agreement dated as of November 9, 2006, the “Warrant
Agreement”;
capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Warrant Agreement);
WHEREAS,
Parent, Xxxxxxxxx Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent (“Merger
Sub”),
and
the Company are parties to that certain Agreement and Plan of Merger and
Reorganization dated as of May 19, 2008 (the “Merger
Agreement”),
pursuant to which, subject to the terms and conditions set forth therein, Merger
Sub has agreed to merge with and into the Company, with the Company being the
surviving corporation and a wholly owned subsidiary of Parent (the “Merger”);
WHEREAS,
pursuant to the Merger Agreement, at the effective time of the Merger (the
“Effective
Time”),
by
virtue of the Merger and without any further action on the part of Parent,
Merger Sub, the Company or any stockholder of the Company,
each
share of Common Stock outstanding immediately prior to the Effective Time shall
be converted into the right to receive 1.8 ordinary shares, par value NIS 1.00
per share, of Parent (“Parent
Ordinary Shares”);
and
WHEREAS,
pursuant to Section 4.4 of the Warrant Agreement and Section 4.9(b) of the
Merger Agreement, upon the Effective Time, each outstanding Warrant will be
assumed by Parent and will continue to have, and be subject to, the same terms
and conditions of such Warrant immediately prior to the Effective Time, except
that, in accordance with Section 4.4 of the Warrant Agreement, (i) each Warrant
will be exercisable for that number of Parent Ordinary Shares equal to the
product of the number of shares of Common Stock that were issuable upon exercise
of such Warrant immediately prior to the Effective Time multiplied by 1.8,
and
(ii) the per share exercise price for the Parent Ordinary Shares issuable upon
exercise of such assumed Warrant will be equal to the quotient determined by
dividing the exercise price per share of Common Stock at which such Warrant
was
exercisable immediately prior to the Effective Time by 1.8.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Company, Parent and the Warrant Agent hereby agree as follows:
1. Assignment
and Assumption.
(a) Upon
the
Effective Time, the Company hereby assigns, and Parent hereby assumes, the
rights and obligations of the Company under the Warrant Agreement and the
Warrants, including the obligation to issue Parent Ordinary Shares upon the
exercise of the Warrants, and Parent hereby agrees to faithfully perform,
satisfy and discharge when due, the liabilities and obligations of the Company
under the Warrant Agreement and the Warrants.
(b) Parent
acknowledges and agrees that subject to the terms of the Warrant Agreement,
the
Warrants and this Assumption Agreement, the Warrant Agreement and the Warrants
shall continue in full force and effect and that all of the Company’s
obligations thereunder shall be valid and enforceable as against Parent upon
consummation of the Merger and shall not be impaired or limited by the execution
or effectiveness of this Assumption Agreement. Parent represents that it has
taken all corporate action necessary to reserve for issuance a sufficient number
of Parent Ordinary Shares for delivery upon exercise of assumed Warrants on
the
terms set forth herein and in the Merger Agreement.
(c) This
Assumption Agreement is being executed and delivered pursuant and subject to
the
Warrant Agreement. Nothing in this Assumption Agreement shall, or shall be
deemed to, defeat, limit, alter, impair, enhance or enlarge any right,
obligation, claim or remedy created by the Warrant Agreement or any other
document or instrument delivered pursuant to or in connection with it.
2. Miscellaneous.
(a) Governing
Law.
The
validity, interpretation, and performance of this Assumption Agreement and
of
the Warrants shall be governed in all respects by the laws of the State of
New
York, without giving effect to conflicts of law principles that would result
in
the application of the substantive laws of another jurisdiction. Parent hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Assumption 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. Parent hereby waives any objection to
such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon Parent may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth
below:
Tower
Semiconductor Ltd.
Ramat
Gavriel Industrial Area
X.X.
Xxx
000
Xxxxxx
Xxxxxx Xxxxxx 00000
Attention:
Chief Financial Officer
Facsimile:
+ 000-(0)-000-0000
2
with
copies (which shall not constitute notice) to:
Xxxxx
Xxxxx & Xx.
0
Xxxxxxx
Xxxxxx
Xxx-Xxxx
00000
Israel
Attn:
Xxxxx Xxxxxxxx
Facsimile:
x000-(0)-000-0000
and
O’Melveny
& Xxxxx llp
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Attn:
Xxxxxxx X. Xxxx
Facsimile:
x0-(000)-000-0000
Such
mailing shall be deemed personal service and shall be legal and binding upon
Parent in any action, proceeding or claim. The foregoing shall also constitute
the filing of a new address by the Company to the Warrant Agent pursuant to
Section 9.2 of the Warrant Agreement.
(b) Binding
Effect.
This
Assumption Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors
and assigns.
(c) Entire
Agreement.
This
Assumption Agreement sets forth the entire agreement and understanding between
the parties as to the subject matter thereof and merges and supersedes all
prior
discussions, agreements and understandings of any and every nature among them.
Except as set forth in this Assumption Agreement, provisions of the Warrant
Agreement which are not inconsistent with this Assumption Agreement shall remain
in full force and effect. This Assumption Agreement may be executed in
counterparts.
(d) Severability.
This
Assumption Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Assumption Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as part of this
Assumption Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Assumption Agreement as of the date first
written above.
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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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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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By:
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/s/
Xxxx X. Xxxxxxx
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Name:
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Xxxx
X. Xxxxxxx
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Title:
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Vice
President
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