PRIVATE PLACEMENT UNIT PURCHASE AGREEMENT
Exhibit 10.7
Private Placement Unit Purchase Agreement
(this “Agreement”) made as of this day
of , 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”).
Whereas, the Company has filed with the Securities and Exchange Commission (“SEC”) a
registration statement on Form S-1, as amended (File No. 333-128058) (the “Registration
Statement”), in connection with the Company’s initial public offering (the “IPO”) of
units, each unit (“Unit”)
consisting of (i) one share of the Company’s common stock, $0.0001
par value (the “Common Stock”), and (ii) two warrants (the “Warrants”), each Warrant to purchase
one share of Common Stock;
Whereas, the Company desires to sell, and the Purchasers desire to acquire, in a private
placement (the “Placement”) an aggregate of 333,334 units (the “Placement Units”) substantially
identical to the Units being issued in the IPO pursuant to the terms and conditions hereof and as
set forth in the Registration Statement, except that the Placement Units and the underlying shares of Common Stock and Warrants
shall not be registered under the Securities Act of 1933, as amended (the “Securities Act”);
Whereas, the Warrants included in the Placement Units shall be governed by the
Warrant Agreement filed as an exhibit to the Registration Statement; and
Whereas, the Purchasers are entitled to registration rights with respect to the Common
Stock and the Warrants comprising the Placement Units and the Common Stock underlying such Warrants
(collectively, the “Registrable Securities”) on the terms set forth in this agreement.
Now, Therefore, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as follows:
1. Purchase
of Units. Each Purchaser hereby agrees, severally and
not jointly, directly or through its nominees,
to purchase the number of Placement Units set forth opposite such
Purchaser’s name on Exhibit A hereto at a purchase price of $6.00 per Placement
Unit, for an aggregate purchase price of $2,000,004 (the “Purchase Price”).
2. Closing. The closing of the purchase and sale of the Placement Units (the
“Closing”) will take place at such time and place as the parties may agree (the “Closing Date”),
but in no event later than the date on which the SEC declares the Registration Statement effective
(the “Effective Date”). On the Effective Date, the Purchasers shall pay the Purchase Price by wire
transfer of funds to an account maintained by the Company. Immediately prior to the closing of the
IPO, the Company shall deposit the Purchase Price into the trust account described in the
Registration Statement (the “Trust Account”). The certificates for the Common Stock and Warrants
comprising the Placement Units shall be delivered to the Purchasers promptly after the closing of
the IPO.
3. Voting of Shares. If the Company solicits approval of its stockholders of a
Business Combination, the Purchasers shall vote all of the shares of the Common Stock acquired by
the Purchasers (i) pursuant to this Agreement, (ii) in the IPO and (iii) in the aftermarket in favor
of such Business Combination and therefore waive any conversion rights they might have with
respect to such shares. As used herein, a “Business Combination” shall mean an acquisition of,
through a merger, capital stock exchange, stock purchase, asset acquisition, or other similar
business combination, one or more domestic and/or foreign operating businesses.
4. Waiver of Liquidation Distributions. In connection with the Placement Units
purchased pursuant to this Agreement, the Purchasers hereby waive any and all right, title, interest
or claim of any kind in or to any liquidating distributions by the Company in the event of a
liquidation of the Company upon the Company’s failure to timely complete a Business Combination.
For purposes of clarity, any shares of Common Stock purchased in the IPO or the aftermarket by the
Purchasers shall be eligible to receive any liquidating distributions by the Company.
5. Lock-Up
Agreement. Each Purchaser shall not (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or
file (or participate in the filing of) a registration statement with the SEC in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder (the “Exchange Act”) with respect to, any
Placement Units and the shares and warrants comprising such Placement Units, or any securities
convertible into or exercisable or exchangeable for shares, or warrants or other rights to purchase
shares or any such securities (the “Lock-up Securities”), (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences of
ownership of the Lock-up Securities, whether any such transaction is to be settled by delivery of
the Lock-up Securities, in cash or otherwise, or (iii) publicly announce an intention to effect any
transaction specified in clause (i) or (ii).
The restrictions imposed under this Section 5 shall expire with respect to 50% of the Lock-up
Securities upon consummation of a Business Combination and with
respect to the remaining 50% of the Lock-up Securities on
the one-year anniversary of the consummation of a Business Combination. In order to enforce this
covenant, the undersigned agrees, if requested by TEP, to deposit the Placement Units in an account
to be established at TEP.
6. Representations
and Warranties of the Purchaser. Each Purchaser hereby
represents and warrants to the Company that:
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.
7. Registration Rights.
7.1 Demand Registration. At any time and from time to time on or after the date three months
prior to the date on which the lock-up restrictions applicable to such Registrable Securities, if
any, expire, the Purchasers or their respective transferees holding a majority-in-interest of the Registrable
Securities may make a written demand for registration under the Securities Act of all or part of
their Registrable Securities (a “Demand Registration”). Any demand for a Demand Registration shall
specify the number of Registrable Securities proposed to be sold and the intended method(s) of
distribution thereof. The Company will notify all holders of
Registrable Securities (each a “Holder)”of the demand,
and each Holder who wishes to include all or a portion of such Holder’s
Registrable Securities in the Demand Registration (each such Holder including shares of Registrable
Securities in such registration, a “Demanding Holder”) shall so notify the Company within fifteen
(15) days after the receipt by the Holder of the notice from the Company. Upon any such request,
the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand
Registration.
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.
7.3 Registration Procedures. To the extent required by Sections 7.1 or 7.2, the Company will:
(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.
7.4 Expenses. The Company shall bear all costs and expenses incurred in connection with any
Demand Registration pursuant to Section 7.1, any Piggy-Back Registration pursuant to Section 7.2,
and all expenses incurred in performing or complying with its other obligations under this
Agreement, whether or not the Registration Statement becomes effective, including, without
limitation: (i) all registration and filing fees; (ii) fees and expenses of compliance with
securities or “blue sky” laws (including fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s
internal expenses (including, without limitation, all salaries and expenses of its officers and
employees); (v) the fees and expenses incurred in connection with the exchange listing of the
Registrable Securities; (vi) National Association of Securities Dealers, Inc. fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated with the delivery
of any opinions or comfort letters); (viii) the fees and expenses of any special experts retained
by the Company in connection with such registration and (ix) the fees and expenses of one legal
counsel selected by the Holders of a majority-in-interest of the Registrable Securities included in
such registration. The Company shall have no obligation to pay any underwriting discounts or
selling commissions attributable to the Registrable Securities being sold by the Holders thereof,
which underwriting discounts or selling commissions shall be borne by such Holders. Additionally,
in an underwritten offering, all selling shareholders and the Company shall bear the expenses of
the underwriter pro rata in proportion to the respective amount of shares each is selling in such
offering.
8. Waiver
of Claims; Indemnification. Each Purchaser hereby waives any and all rights to assert
any present or future claims, including any right of rescission, against the Company, TEP or the
other underwriters in the IPO with respect to its purchase of the
Placement Units, and each Purchaser agrees to indemnify and hold the Company, TEP and the other underwriters in the IPO
harmless from all losses, damages or expenses that relate to claims or proceedings brought against
the Company, TEP or such other underwriters by such Purchaser of the Placement Units or its
transferees, heirs, assigns or any subsequent holders of the Placement Units.
9. Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument. This Agreement or any counterpart may be executed via
facsimile transmission, and any such executed facsimile copy shall be treated as an original.
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: | ||||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | President | |||
| THINKEQUITY PARTNERS LLC as representative of the underwriters |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ACQUICOR MANAGEMENT LLC |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxx, PhD | |||
| Title: | Manager | |||
| Xxxxxx X. Xxxxx, Ed.D. | |||
| Xxxx 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 | |||||
