ESCROW AGREEMENT
EXHIBIT
4.2
EXECUTION
VERSION
This
Escrow Agreement (as amended or modified from time to time and including any
and
all written instructions given to the Escrow Agent (as defined below) pursuant
hereto, this “Escrow
Agreement”)
is
made and entered into as of December 19, 2006 by and between Acquicor Technology
Inc., a Delaware corporation (the “Company”),
U.S.
Bank National Association, a national banking association, as the trustee under
the Indenture (as defined below) (the “Trustee”),
U.S.
Bank National Association, a banking association, acting in the capacity of
collateral agent for the Holders (as defined below) (the “Collateral
Agent”
and,
together with the Company, the “Other
Parties”),
U.S.
Bank National Association, a national banking association, as escrow agent
and
the securities intermediary and bank for the Escrow Account (as defined below)
(in such capacities, the “Escrow
Agent”).
Capitalized terms used herein and not otherwise defined herein shall have the
meanings set forth therefore in the Indenture.
WITNESSETH:
WHEREAS,
this
Escrow Agreement is being entered into in connection with the Purchase
Agreement, dated as of December 18, 2006 (the “Purchase
Agreement”),
by
and among the Company and CRT Capital Group LLC and Xxxxxxx & Company, LLC
as the initial purchasers (the “Initial
Purchasers”);
WHEREAS,
pursuant
to the Purchase Agreement, the Company has agreed to issue and sell to the
Initial Purchasers, for resale by the Initial Purchasers under Rule 144A of
the
Securities Act of 1933, as amended (the “Offering”),
$145.0 million in aggregate principal amount of its 8% Convertible Senior Notes
due December 31, 2011 (the “Notes”);
WHEREAS,
the
Company and the Trustee have entered into an Indenture, dated as of the date
hereof (as amended, supplemented, restated or otherwise modified from time
to
time, the “Indenture”),
pursuant to which the Company issued the Notes;
WHEREAS,
in
connection with the Offering, the Company expects to acquire Jazz Semiconductor,
Inc. (“Jazz”)
by the
merger of Joy Acquisition Corp., a wholly-owned subsidiary of the Company,
into
Jazz on or prior to May 31, 2007 (the “Acquisition”);
WHEREAS,
concurrently
with the closing of the Offering, the Company has agreed with the Initial
Purchasers to place in escrow the gross proceeds of the Offering, including
the
Initial Purchasers’ discount, to be held pursuant to and subject to the terms
and conditions of this Escrow Agreement and the Indenture;
WHEREAS,
in
order to secure certain obligations of the Company to the holders of the Notes
(the “Holders”),
the
Company has agreed to grant a security interest in all of the Company’s right,
title and interest in, to and under the Collateral (as defined in that certain
Pledge and Security Agreement (the “Pledge
Agreement”)
by and
between the Company and the Collateral Agent.
WHEREAS,
upon
the
satisfaction of the conditions set forth herein, the Escrow Agent shall release
and deliver the funds in the Escrow Account as set forth herein;
and
WHEREAS,
the
Company wishes to engage the Escrow Agent to act, and the Escrow Agent
is willing
to act, as escrow agent hereunder and, in that capacity, to hold, administer
and
distribute the amounts deposited in escrow hereunder in accordance with, and
subject to, the terms of this Escrow Agreement.
NOW,
THEREFORE, in
consideration of the premises and mutual covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Appointment
of the Escrow Agent.
Each of
the Company and
the
Trustee hereby appoints U.S. Bank National Association, a national banking
association, as the escrow agent under this Escrow Agreement, and the Escrow
Agent hereby accepts such appointment.
2. The
Deposit; Establishment of Escrow Account.
The
Company shall deliver, or cause the Initial Purchasers to deliver, to the Escrow
Agent (i) concurrently with the execution and delivery of this Escrow Agreement,
the gross proceeds from the issuance and sale of the Notes on the date hereof
(the “Initial
Deposit”),
and
(ii) upon the issuance and sale of any additional Notes prior to termination
of
this Agreement, the gross proceeds from such issuance and sale (the
“Subsequent
Deposit”,
and
together with the Initial Deposit, the “Deposits”),
in
the case of each of clauses (i) and (ii), to be held by the Escrow Agent in
accordance with the terms hereof. Subject to and in accordance with the terms
and conditions hereof, the Escrow Agent agrees to hold the Deposits in an
account established with the Escrow Agent in the name of the Company, as
entitlement holder, and designated as Account No. 108067001, Reference:
“Acquicor 8% Convertible Senior Notes” (the “Escrow
Account”)
and to
administer the Deposits in accordance with the terms of this Escrow Agreement,
including without limitation, holding in escrow, investing and reinvesting,
and
releasing or distributing the Deposits. It is hereby expressly stipulated and
agreed that all interest and other earnings on the Deposits shall become a
part
of the Deposits for all purposes, and that all losses resulting from the
investment or reinvestment thereof from time to time shall from the time of
such
loss no longer constitute part of the Deposits. The Company hereby acknowledges
and agrees that the Deposits cannot be released unless the conditions of Section
5(a), 5(b), 5(c) or 5(d), as the case may be, of this Escrow Agreement are
satisfied. The Escrow Account shall be deemed to be a “Securities Account” as
defined in Section 8-501 of the New York Uniform Commercial Code (the
“NYUCC”)
and,
for purposes of Sections 9-305 and 8-110(e) of the NYUCC, the jurisdiction
of
Escrow Agent shall be the State of New York; provided that if the Escrow Account
is deemed to be a “Deposit Account” as defined in Section 9-102(a)(29) then, for
purposes of Section 9-304 of the NYUCC, the jurisdiction of the Escrow Agent
shall be New York.
3. Acknowledgement
of Security Interest.
The
Escrow Agent hereby acknowledges the security interest of the Collateral Agent
in the Collateral. The Escrow Agent agrees to take all such actions directed
by
the Collateral Agent to perfect such security interest. In connection with
the
perfection of such security interests, the Company, the Collateral Agent, the
Trustee and the Escrow Agent have entered into that certain Control Agreement,
dated as of the date hereof (the “Control
Agreement”).
Notwithstanding anything to the contrary, the Escrow Agreement, and the Escrow
Agent’s rights, duties and obligations hereunder, shall be subject to the
Control Agreement.
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4. Investment
of the Deposits. The
Escrow Agent shall invest and reinvest the Deposits in (a) securities that
are
direct obligations of, or guaranteed as to principal and interest by, the United
States government or any agency or instrumentality of the United States
government (provided
that
the
full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than six months from the date of
acquisition or (b) money market funds meeting certain conditions under Rule
2a-7
(or any successor rule) promulgated under the Investment Company Act of 1940
as
determined by the Company (it being agreed that First American Government
Obligations Fund, Class D, CUSIP #00000X000 meets
such criteria) (both
(a)
and (b), the “Approved
Investment Options”),
as may
be instructed in writing by the Company; provided,
however, that
if
the Collateral Agent or the Company notifies the Escrow Agent that an event
has
occurred that constitutes an Event of Default under the Indenture and said
event
shall be continuing, the Company’s right to instruct the Escrow Agent regarding
the investment of the Deposits shall cease and the Escrow Agent shall no longer
take direction from the Company and shall instead invest and reinvest the
Deposits in such Approved Investment Options instructed in writing by the
Collateral Agent. Such written instructions, if any, referred to in the
foregoing sentence shall specify the type and identity of the Approved
Investment Options to be purchased and/or sold and shall also include the name
of the broker-dealer, if any, that the Company directs the Escrow Agent to
use
in respect of such investment, any particular settlement procedures required,
if
any (which settlement procedures shall be consistent with industry standards
and
practices), and such other information as the Escrow Agent may require. The
Escrow Agent shall not be liable for failure to invest or reinvest funds absent
sufficient written direction. Unless the Escrow Agent is otherwise directed
in
such written instructions, the Escrow Agent may use a broker-dealer of its
own
selection, including a broker-dealer owned by or affiliated with the Escrow
Agent or any of its affiliates. The Escrow Agent or any of its affiliates may
receive compensation with respect to any investment directed hereunder. It
is
expressly agreed and understood by the parties hereto that the Escrow Agent
shall not in any way whatsoever be liable for losses on any investments,
including, but not limited to, losses from market risks due to premature
liquidation or resulting arm other actions taken pursuant to this Escrow
Agreement.
Receipt,
investment and reinvestment of the Deposits shall be confirmed by the Escrow
Agent to the Company as soon as practicable by account statement, and any
discrepancies in any such account statement shall be noted by the Company to
the
Escrow Agent within thirty (30) calendar days after receipt thereof. Failure
to
inform the Escrow Agent in writing of any discrepancies in any such account
statement within said 30-day period shall conclusively be deemed confirmation
of
such account statement in its entirety. For purposes of this paragraph, (a)
each
account statement shall be deemed to have been received by the party to whom
it
is directed on the earlier to occur of (i) the actual receipt thereof and (ii)
three (3) “Business Days” (as defined below) after the deposit thereof in the
United States mail, postage prepaid (registered or certified, return receipt
requested) and (b) the term “Business
Day”
shall
mean any day of the year, excluding Saturday, Sunday and any other day on which
national banks are required or authorized to close in New York, New
York.
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5. Disbursement
of the Deposits.
The
Escrow Agent is hereby authorized to make disbursements of the Deposits only
as
follows:
(a) Upon
(i)
receipt of an officer’s certificate from the Company addressed to the Trustee
(and indicating thereon that a copy has been provided to the
Escrow Agent, the Collateral Agent and the Initial Purchasers) substantially
in
the form of Annex
A
hereto
(the “Officer’s
Certificate”),
specifying the wire transfer instructions for (A) that portion of the Deposits
representing the amount of funds to be applied towards the payment of the
purchase price for the Acquisition and other costs payable in connection with
the Acquisition, (B) that portion of the Deposits representing the amounts
payable by the Company to the Initial Purchasers pursuant to the Purchase
Agreement, which amount shall be equal to 3.5% of the gross proceeds from the
sale and issuance of the Notes that were deposited into the Escrow Account,
and
(C) the balance of the Deposits, if any, in excess of the amount specified
in
clauses (a)(i)(A) and (a)(i)(B) of this Section 5; (ii) receipt of instructions
from the Trustee confirming the disbursement of the Deposits in accordance
with
the Officer’s Certificate; and (iii) solely with respect to the portion of the
Deposits in (B) above, receipt of instructions from the Initial Purchasers
confirming the disbursement of such portion of the Deposit in accordance with
the Officer’s Certificate.
(b) In
the
event the Deposits are not released in accordance with Section 5(a) hereof
on or
prior to May 31, 2007 or if prior thereto the Company’s stockholders shall have
voted not to approve the Acquisition or the Authorized Share Increase (as
confirmed by an officer’s certificate of the Company), the Escrow Agent shall
release the Deposits to the Trustee upon receipt of (i) a written notice from
the Company to the Trustee (with a copy to the Escrow Agent, the Collateral
Agent and the Initial Purchasers), substantially in the form of Annex
B
hereto
(the “Notice”),
specifying the wire transfer instructions for the Deposits to be used to effect
the Special Mandatory Redemption (as defined in the Indenture); and (ii) receipt
of instructions from the Trustee confirming the disbursement of the Deposits
in
accordance with the Notice.
(c) The
Escrow Agent shall make all transfers pursuant to this Section 5 as promptly
as
practicable after receipt of the Officers’ Certificates and Notices set forth
above, and in no event later than the next business day.
(d) Notwithstanding
the foregoing, if the Collateral Agent or the Company notifies the Escrow Agent
that an event has occurred that constitutes an Event of Default under the
Indenture and said event shall be continuing, then the Company’s right to
authorize disbursements shall cease and the Escrow Agent shall no longer take
direction from the Company and the Pledge Agreement shall govern the disposition
of the Deposits.
6. Tax
Matters.
(a) The
Company shall
provide the Escrow Agent with its taxpayer identification number documented
by
an appropriate Form W-8 or Form W-9 upon or prior to the execution of this
Escrow Agreement. Failure to provide such forms may prevent or delay
disbursements from the Deposits and may also result in the assessment of a
penalty and the Escrow Agent’s being required to withhold tax on any interest or
other income earned on the Deposits. Any payments of income shall be subject
to
applicable withholding regulations then in force in the United States or any
other jurisdiction, as applicable.
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(b) The
Company agrees that, for purposes of federal and other taxes based on income,
the Company will be treated as the owner of the Deposits, the Company will
report all income, if any, that is earned on, or derived from, the Deposits
as
its income in the taxable year or years in which such income is properly
includible and pay any taxes attributable thereto.
7. Scope
of Undertaking.
The
Escrow Agent’s duties and responsibilities in connection with this Escrow
Agreement shall be purely ministerial and shall be limited to those expressly
set forth in this Escrow Agreement. The Escrow Agent is not a principal,
participant or beneficiary in any transaction underlying this Escrow Agreement
and shall have no duty to inquire beyond the terms and provisions hereof. The
Escrow Agent shall have no responsibility or obligation of any kind in
connection with this Escrow Agreement or the Deposits and shall not be required
to deliver the Deposits or any part thereof or take any action with respect
to
any matters that might arise in connection therewith, other than to receive,
hold, invest, reinvest and deliver the Deposits as expressly herein provided.
Without limiting the generality of the foregoing, it is hereby expressly agreed
and stipulated by the parties hereto that the Escrow Agent shall not be required
to exercise any discretion hereunder and shall have no investment or management
responsibility and, accordingly, shall have no duty to, or liability for its
failure to, provide investment recommendations or investment advice to the
Other
Parties or any of them. The Escrow Agent shall not be liable for any error
in
judgment, any act or omission, any mistake of law or fact, or for anything
it
may do or refrain from doing in connection herewith, except for, subject to
Section 8 hereof, its own willful misconduct or gross negligence. It is the
intention of the parties hereto that the Escrow Agent shall never be required
to
use, advance or risk its own funds or otherwise incur financial liability in
the
performance of any of its duties or the exercise of any of its rights and powers
hereunder.
8. Reliance;
Liability.
The
Escrow Agent may rely on, and shall not be liable for acting or refraining
from
acting in accordance with, any written notice, instruction or request or other
paper furnished to it hereunder or pursuant hereto and believed by it in good
faith to be genuine and to have been signed or presented by the proper party
or
parties. The Escrow Agent shall be responsible for holding, investing,
reinvesting and disbursing the Deposits pursuant to this Escrow Agreement;
provided,
however, that
in
no event shall the Escrow Agent be liable for any lost profits, lost savings
or
other special, exemplary, consequential or incidental damages in excess of
the
Escrow Agent’s fee hereunder; and provided,
further, that
the
Escrow Agent shall have no liability for any loss arising from any cause beyond
its control, including, but not limited to, the following: (a) acts of God,
force majeure, including, without limitation, war (whether declared or
existing), revolution, insurrection, riot, civil commotion, accident, fire,
explosion, stoppage of labor, strikes and other differences with employees;
(b)
the act, failure or neglect of any Other Party or any agent or correspondent
or
any other person selected by the Escrow Agent; (c) any delay, error, omission
or
default of any mail, courier, telegraph, cable or wireless agency or operator;
or (d) the acts or edicts of any government or governmental agency or other
group or entity exercising governmental powers. The Escrow Agent is not
responsible or liable in any manner whatsoever for the sufficiency, correctness,
genuineness or validity of the subject matter of this Escrow Agreement or any
part hereof or for the transaction or transactions requiring or underlying
the
execution of this Escrow Agreement, the form or execution hereof or for the
identity or authority of any person executing this Escrow Agreement or any
part
hereof or depositing the Deposits.
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9. Right
of Interpleader. Should
any controversy arise involving the parties hereto or any of them or any other
person, firm or entity with respect to this Escrow Agreement or the Deposits,
or
should a substitute escrow agent fail to be designated as provided in Section
16
hereof, or if the Escrow Agent should be in doubt as to what action to take,
the
Escrow Agent shall have the right, but not the obligation, to institute a
petition for interpleader in any court of competent
jurisdiction to determine the rights of the parties hereto. In the event the
Escrow Agent is a party to any dispute, the Escrow Agent shall have the
additional right to refer such controversy to binding arbitration. Should a
petition for interpleader be instituted, or should the Escrow Agent be
threatened with litigation or become involved in litigation or binding
arbitration in any manner whatsoever in connection with this Escrow Agreement
or
the Deposits, the Company hereby agrees to reimburse the Escrow Agent for its
reasonable attorneys’ fees and any and all other expenses, losses, costs and
damages incurred by the Escrow Agent in connection with or resulting from such
threatened or actual litigation or arbitration prior to any disbursement
hereunder, except as such fees, expenses, losses, costs and damages result
from
the willful misconduct or gross negligence of the Escrow Agent.
10. Indemnification.
The
Company hereby indemnifies the Escrow Agent, its officers, directors, partners,
employees and agents (each herein called an “Indemnified
Party”)
against, and holds each Indemnified Party harmless from, any and all reasonable
expenses, including, without limitation, attorneys’ fees and court costs,
losses, costs, damages and claims, including, but not limited to, costs of
investigation, litigation and arbitration, tax liability and loss on investments
suffered or incurred by any Indemnified Party in connection with or arising
from
or out of this Escrow Agreement, except such acts or omissions as may result
from the willful misconduct or gross negligence of such Indemnified
Party.
11. Compensation
and Reimbursement of Expenses.
The
Company hereby agrees to pay the Escrow Agent for its services hereunder in
accordance with the Escrow Agent’s fee schedule as attached hereto as
Schedule
A
and to
pay all expenses incurred by the Escrow Agent in connection with the performance
of its duties and enforcement of its rights hereunder and otherwise in
connection with the preparation, operation, administration and enforcement
of
this Escrow Agreement, including, without limitation, reasonable attorneys’
fees, brokerage costs and other reasonable and related expenses incurred by
the
Escrow Agent.
12. Funds
Transfer.
In the
event funds transfer instructions are given (other than in writing at the time
of execution of this Escrow Agreement), whether in writing, by facsimile, or
otherwise, the Escrow Agent is authorized, but not obligated, to seek
confirmation of such instructions by telephone call-back to each of the persons
designated on Schedule
B
hereto,
and the Escrow Agent may rely upon the confirmations of anyone purporting to
be
the person so designated. The persons and telephone numbers for call-backs
may
be changed only in writing actually received and acknowledged by the Escrow
Agent. The parties to this Escrow Agreement acknowledge that undertaking funds
transfers based upon given instructions without call-back instruction is
commercially reasonable.
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It
is
understood that the Escrow Agent and the beneficiary’s bank in any funds
transfer may rely solely upon any account numbers or similar identifying number
provided by either of the other parties hereto to identify (i) the beneficiary,
(ii) the beneficiary’s bank or (iii) an intermediary bank. The Escrow Agent may
apply any of the escrowed funds for any payment order it executes using any
such
identifying number, even where its use may result in a person other than the
beneficiary being paid, or the transfer of funds to a bank other than the
beneficiary’s bank or an intermediary bank, designated.
13. Notices.
Any
notice or other communication required or permitted to be given under this
Escrow Agreement by any party hereto to any other party hereto shall be
considered as properly given if in writing and (a) delivered against receipt
therefor, (b) mailed by registered or certified mail, return receipt requested
and postage prepaid or (c) sent by facsimile, in each case to the address or
facsimile number, as the case may be, set forth below:
If
to the
Company:
0000
Xxxxx Xxxxxx
Xxxxx
000
Xxxxxxx
Xxxxx, XX 00000
Attn:
General Counsel
Facsimile
No.: 000-000-0000
Telephone
No.: 000-000-0000
With
a
copy to:
Xxxxxx
Godward Kronish LLP
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxx-Xxxxxxx a Marca
Facsimile
No.: 000-000-0000
Telephone
No.: 000-000-0000
If
to the
Trustee:
U.S.
Bank
National Association
00
Xxxxxxxxxx Xxx.
Xx.
Xxxx,
Xxxxxxxxx 00000
Attn:
Xxxxxxx Xxxxxxxx
Facsimile
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
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If
to the
Collateral Agent:
U.S.
Bank
National Association
00
Xxxxxxxxxx Xxx.
Xx.
Xxxx,
Xxxxxxxxx 00000
Attn:
Xxxxxxx Xxxxxxxx
Facsimile
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
If
to the
Initial Purchasers:
x/x
XXX
Capital Group LLC
000
Xxxxxx Xxxxx
Xxxxxxxx,
XX 00000
Attn:
Xxxxxxxxxxx Xxxxx
Facsimile
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
With
a
copy to:
Xxxxxxx
XxXxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000-0000
Attn:
Xxxx X. Xxxxxxxxxxxx, Esq.
Fax
No.:
(000) 000-0000
Telephone
No.: (000) 000-0000
If
to the
Escrow Agent:
U.S.
Bank
National Association
00
Xxxxxxxxxx Xxx.
Xx.
Xxxx,
Xxxxxxxxx 00000
Attn:
Xxxxxxx Xxxxxxxx
Facsimile
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
Except
to
the extent otherwise provided in the second paragraph of Section 4 hereof,
delivery of any communication given in accordance herewith shall be effective
only upon actual receipt thereof by the party or parties to whom such
communication is directed. Any party to this Escrow Agreement may change the
address to which communications hereunder are to be directed by giving written
notice to the other party or parties hereto in the manner provided in this
section.
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14. Consultation
with Legal Counsel.
The
Escrow Agent may consult with its counsel or other counsel satisfactory to
it
concerning any question relating to its duties or responsibilities hereunder
or
otherwise in connection herewith and shall not be liable for any action taken,
suffered or omitted by it in good faith upon the advice of such
counsel.
15. Choice
of Laws; Cumulative Rights.
This
Escrow Agreement shall be construed under, and governed by, the laws of the
State of New York without regard to the conflict of laws principles thereof
which might indicate the applicability of the laws of another jurisdiction.
All
of the Escrow Agent’s rights hereunder are cumulative of any other rights it may
have at law, in equity or otherwise. The parties hereto agree that the forum
for
resolution of any dispute arising under this Escrow Agreement shall be Borough
of Manhattan, New York, New York, and each of the Other Parties hereby consents,
and submits itself, to the jurisdiction of any state or federal court sitting
in
Borough of Manhattan, New York, New York.
16. Resignation.
The
Escrow Agent shall have the right at any time to resign hereunder by giving
written notice of its resignation to the Company (with a copy to the Initial
Purchasers) at the addresses set forth herein, or at such other addresses as
the
Company or the Initial Purchasers shall provide, at least thirty (30) days
prior
to the date specified for such resignation to take effect. The Company shall
promptly appoint a successor escrow agent. Such resignation shall not be
effective until the acceptance of appointment by a successor escrow agent.
Upon
the effective date of such resignation, all cash and other payments and all
other property then held by the Escrow Agent hereunder in the Escrow Account
shall be delivered by it to such successor escrow agent. If no successor escrow
agent is appointed and has accepted its appointment within thirty (30) days
after the Escrow Agent has given notice of its resignation as aforesaid, the
Escrow Agent may apply to a court of competent jurisdiction for such
appointment. The Escrow Agent or any successor thereto is not required to be
the
same entity as the Trustee under the Indenture.
17. Assignment.
This
Escrow Agreement shall not be assigned by any of the Other Parties without
the
prior written consent of the Escrow Agent (such assigns of the Other Parties
to
which the Escrow Agent consents, if any, and the Escrow Agent’s assigns being
hereinafter referred to collectively as “Permitted
Assigns”).
18. Severability.
If one
or more of the provisions hereof shall for any reason be held to be invalid,
illegal or unenforceable in any respect under applicable law, such invalidity,
illegality or unenforceability shall not affect any other provisions hereof,
and
this Escrow Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein, and the remaining
provisions hereof shall be given full force and effect.
19. Termination.
This
Escrow Agreement shall terminate upon the disbursement of the Deposits in full,
in accordance with Section 5 hereof or by order of a court of competent
jurisdiction; provided,
however, that
in
the event all fees, expenses, costs and other amounts required to be paid to
the
Escrow Agent hereunder are not fully and finally paid prior to termination,
the
provisions of Section 11 hereof shall survive the termination hereof;
provided,
further, that
the
last two sentences of Section 9 hereof and the provisions of Section 10 hereof
shall, in any event, survive the termination hereof.
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20. General.
The
section headings contained in this Escrow Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Escrow Agreement. This Escrow Agreement and any affidavit, certificate,
instrument, agreement or other document required to be provided hereunder may
be
executed in two (2) or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute but one and the
same
instrument. Unless the context shall otherwise require, the singular shall
include the plural and vice-versa, and each pronoun in any gender shall include
all other genders. The terms and provisions of this Escrow Agreement constitute
the entire agreement among the parties hereto in respect of the subject matter
hereof, and neither the Other Parties nor the Escrow Agent has relied on any
representations or agreements of the other, except as specifically set forth
in
this Escrow Agreement. This Escrow Agreement or any provision hereof may be
amended, modified, waived or terminated only by written instrument duly signed
by the parties hereto. This Escrow Agreement shall inure to the benefit of,
and
be binding upon, the parties hereto and their respective Permitted Assigns.
This
Escrow Agreement is for the sole and exclusive benefit of the Other Parties
and
the Escrow Agent, and nothing in this Escrow Agreement, express or implied,
is
intended to confer or shall be construed as conferring upon any other person
any
rights, remedies or any other type or types of benefits; provided,
however,
that
the Escrow Agent and Other Parties hereby acknowledge and agree that the Initial
Purchasers are intended third party beneficiaries of Sections 5 and 16
hereof.
[Signature
page follows.]
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IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement to
be
effective as of the date first above written.
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Chairman and Chief Executive Officer
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U.S.
BANK NATIONAL
ASSOCIATION,
AS TRUSTEE
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| By: | /s/ Xxxxxxx Xxxxxxxx | |
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Vice President
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U.S.
BANK NATIONAL
ASSOCIATION,
AS COLLATERAL AGENT
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| By: | /s/ Xxxxxxx Xxxxxxxx | |
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Vice President
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U.S.
BANK NATIONAL ASSOCIATION, AS ESCROW AGENT
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| By: | /s/ Xxxxxxx Xxxxxxxx | |
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Vice President
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-11-
Schedule
A
Fee
Schedule
The
Escrow Agent shall charge no fee for its services as Escrow Agent so long as
the
Deposits are invested in the First American Government Obligations Fund, Class
D, CUSIP #00000X000.
A-1
Schedule
B
Telephone
Number for Call-backs and Person
Designated
to Confirm Funds Transfer Instructions
If
to the
Company:
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Name
|
Telephone
Number
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General
Counsel
|
(000)
000-0000
|
If
to the
Initial Purchasers:
|
Name
|
Telephone
Number
|
|
|
Xxxxxxxxxxx
Xxxxx
|
(000)
000-0000
|
If
to the
Trustee:
|
Name
|
Telephone
Number
|
|
|
Xxxxxxx
Xxxxxxxx
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(000)
000-0000
|
B-1
ANNEX
A
[___________],
2007
OFFICER’S
CERTIFICATE
The
undersigned, ____________, the ____________ of Acquicor Technology Inc., a
Delaware corporation (the “Company”),
pursuant to Section 5(a)(i) of the Escrow Agreement, dated as of December 19,
2006 (the “Escrow
Agreement”),
by
and among the Company, U.S. Bank National Association, a national banking
association, as trustee under the Indenture dated as of December 19, 2006 (as
amended, supplemented, restated or otherwise modified from time to time),
pursuant to which the Company issued the Notes, as defined in the Indenture
(the
“Trustee”),
U.S.
Bank National Association, a banking association, acting in the capacity of
collateral agent for the Holders (as defined in the Escrow Agreement) (the
“Collateral
Agent”)
and
U.S. Bank National Association, a national banking association, as escrow agent
(the “Escrow
Agent”),
on
behalf of the Company, hereby provides this officers’ certificate to the
Trustee, with a copy to the Escrow Agent, the Collateral Agent and the Initial
Purchasers. Capitalized terms used but not defined herein shall have the
meanings given to them in the Escrow Agreement.
The
undersigned hereby certifies to the Escrow Agent, the Trustee and the Collateral
Agent that:
(a) the
undersigned has read the covenants relating to, and conditions to, the release
of the [Collateral], including the Deposits, and the definitions relating
thereto set forth in the Indenture, the Pledge Agreement and the Escrow
Agreement;
(b) In
connection with this certificate, the undersigned has examined and relied
upon:
(1) the
certificate from the Inspector of Election at the Special Meeting of the
stockholders of the Company held on •, 2007,
(2) the
Agreement and Plan of Acquisition dated September 26, 2006, by and among the
Company, Joy Acquisition Corp., Jazz and TC Group, L.L.C. as Jazz’s
stockholders’ representative, including the conditions to the Acquisition set
forth therein,
(3) certificates
from officers of the Company and Jazz and other documents delivered in
connection with the Acquisition;
(4) the
Company’s corporate records; and
(5) such
amendments to the Company’s certificate of incorporation as are necessary to
implement the Authorized Share Increase.
ANNEX-A-1
In
addition, the undersigned has examined such other documents and made such
investigation as the undersigned has deemed necessary or appropriate to enable
him to deliver this certificate.
(c) In
the
opinion of the undersigned, the undersigned made such examination or
investigation as is necessary to enable him to express an informed opinion
as to
whether compliance with the conditions to, and covenants relating to, the
release of the Collateral, including the Deposits, have been complied
with;
(d) In
the
opinion of the undersigned, the conditions to, and the covenants relating to,
the release of the Collateral, including the Deposits, have been complied with;
and
(e) The
Acquisition will occur immediately after the release of the Deposits as
specified below.
The
Company hereby requests the Trustee to direct the Escrow Agent to
remit:
(a) U.S.$[__________]
of the Deposits, such amount being equal to 3.5% of the gross proceeds from
the
sale and issuance of the Notes that were deposited into the Escrow Account,
as
specified below on the date hereof by wire transfer of immediately available
funds in accordance with the following wire transfer instructions:
[insert
wire transfer instructions]
(b) The
balance of the Deposits, remaining in the Escrow Account after remitting the
amount of the Deposits specified in paragraph (a) above, for the purposes of
funding the Acquisition and for certain other purposes, as specified below
on
the date hereof by wire transfer of immediately available funds in accordance
with the following wire transfer instructions:
[insert
wire transfer instructions]
[Signature
Page Follows]
ANNEX-A-2
IN
WITNESS WHEREOF, the undersigned has signed this Officer’s Certificate on the
date written above.
| By: | |
|
Name:
|
|
| Title: |
ANNEX-A-3
ANNEX
B
[___________],
2007
NOTICE
The
undersigned, ___________, the ___________ of Acquicor Technology Inc., a
Delaware corporation (the “Company”),
pursuant to Section 5(b)(i) of the Escrow Agreement dated as of December 19,
2006 (the “Escrow
Agreement”),
by
and among the Company, U.S. Bank National Association, a national banking
association, as trustee under the Indenture dated as of December 19, 2006 (as
amended, supplemented, restated or otherwise modified from time to time),
pursuant to which the Company issued the Notes, as defined in the Indenture
(the
“Trustee”),
U.S.
Bank National Association, a banking association, acting in the capacity of
collateral agent for the Holders (as defined in the Escrow Agreement) (the
“Collateral
Agent”)
and
U.S. Bank National Association, a national banking association, as escrow agent
(the “Escrow
Agent”),
on
behalf of the Company, hereby provides notice to the Trustee, with a copy to
the
Escrow Agent, the Collateral Agent and the Initial Purchasers, that the Company
will effect a “Special Mandatory Redemption” on _____, 200_ (the “Special
Mandatory Redemption Date”)
pursuant to Section 14.10 of the Indenture, dated as of December 19, 2006 (the
“Indenture”),
by
and between the Company and the Trustee. Unless otherwise specified, capitalized
terms used herein and not defined herein shall have the meanings given such
terms in the Indenture.
The
Company through its undersigned officers hereby notifies and requests the
Trustee to instruct the Escrow Agent to transfer to the Trustee on the Special
Mandatory Redemption Date the balance of the Deposits in the Escrow
Account.
[Signature
Page Follows]
ANNEX-B-1
IN
WITNESS WHEREOF, the Company, through its undersigned officers, has signed
this
Notice on the date written above.
| By: | |
|
Name:
|
|
| Title: |
ANNEX-B-2
