ACQUICOR TECHNOLOGY INC. STOCK PURCHASE AGREEMENT
Exhibit 10.1
This Common Stock Purchase Agreement (the “Agreement”) is made as of August 26,
2005, by and between Acquicor Technology Inc., a Delaware corporation (the “Company”) and
Acquicor Management LLC (“Purchaser”).
The Company desires to issue, and Purchaser desires to acquire, stock of the Company as herein
described, on the terms and conditions hereinafter set forth;
1. Purchase and Sale of Stock. Purchaser hereby agrees to purchase from the Company, and the
Company hereby agrees to sell to Purchaser, an aggregate of 6,250,000 shares of the Common Stock of
the Company (the “Stock”) at $0.004 per share, for an aggregate purchase price of $25,000, payable
in cash. The closing hereunder, including payment for and delivery of the Stock shall occur at the
offices of the Company immediately following the execution of this Agreement, or at such other time
and place as the parties may mutually agree.
2. Limitations on Transfer. Purchaser shall not assign, hypothecate, donate, encumber or
otherwise dispose of any interest in the Stock except in compliance with the provisions herein and
applicable securities laws. Furthermore, the Stock shall be subject to any right of first refusal
in favor of the Company or its assignees that may be contained in the Company’s Bylaws. The
Company shall not be required (a) to transfer on its books any shares of Stock of the Company which
shall have been transferred in violation of any of the provisions set forth in this Agreement or
(b) to treat as owner of such shares or to accord the right to vote as such owner or to pay
dividends to any transferee to whom such shares shall have been so transferred. Purchaser hereby
further acknowledges that Purchaser may be required to hold the Stock purchased hereunder
indefinitely. During the period of time during which the Purchaser holds the Stock, the value of
the Stock may increase or decrease, and any risk associated with such Stock and such fluctuation in
value shall be borne by the Purchaser.
3. Restrictive Legends. All certificates representing the Stock shall have endorsed thereon
legends in substantially the following forms (in addition to any other legend which may be required
by other agreements between the parties hereto):
(a) “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.”
(b) Any legend required by appropriate blue sky officials.
4. Investment Representations. In connection with the purchase of the Stock, Purchaser
represents to the Company the following:
(a) Purchaser is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and knowledgeable decision
to acquire the Stock. Purchaser is purchasing the Stock for investment for Purchaser’s own account
only and not with a view to, or for resale in connection with, any “distribution” thereof within
the meaning of the Securities Act of 1933, as amended (the “Act”).
(b) Purchaser understands that the Stock has not been registered under the Act by reason of a
specific exemption therefrom, which exemption depends upon, among other things, the bona fide
nature of Purchaser’s investment intent as expressed herein.
(c) Purchaser further acknowledges and understands that the Stock must be held indefinitely
unless the Stock is subsequently registered under the Act or an exemption from such registration is
available. Purchaser understands that the certificate evidencing the Stock will be imprinted with
a legend which prohibits the transfer of the Stock unless the Stock is registered or such
registration is not required in the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rules 144, under the Act, as in effect from
time to time, which, in substance, permits limited public resale of “restricted securities”
acquired, directly or indirectly, from the issuer thereof (or from an affiliate of such issuer), in
a non-public offering subject to the satisfaction of certain conditions.
The Stock may be resold by Purchaser in certain limited circumstances subject to the
provisions of Rule 144, which requires, among other things: (i) the availability of certain public
information about the Company and (ii) the resale occurring following the required holding period
under Rule 144 after the Purchaser has purchased, and made full payment of (within the meaning of
Rule 144), the securities to be sold.
e) Purchaser further understands that at the time Purchaser wishes to sell the Stock there
may be no public market upon which to make such a sale, and that, even if such a public market then
exists, the Company may not be satisfying the current public information requirements of Rule 144,
and that, in such event, Purchaser would be precluded from selling the Stock under Rule 144 even if
the minimum holding period requirement had been satisfied.
(f) Purchaser warrants and represents that Purchaser is an “accredited investor” as that term
is defined in Rule 501 of Regulation D promulgated by the Securities and Exchange Commission under
the Act.
(g) Purchaser further warrants and represents that Purchaser has either (i) preexisting
personal or business relationships, with the Company or any of its officers, directors or
controlling persons, or (ii) the capacity to protect his own interests in connection with the
purchase of the Stock by virtue of the business or financial expertise of himself or of
professional advisors to Purchaser who are unaffiliated with and who are not compensated by the
Company or any of its affiliates, directly or indirectly.
5. Market Stand-Off Agreement. Purchaser shall not sell, dispose of, transfer, make any short
sale of, grant any option for the purchase of, or enter into any hedging or similar transaction
with the same economic effect as a sale, any Common Stock or other securities of the Company held
by Purchaser, including the Stock (the “Restricted Securities”), during the 180-day period
following the effective date of a registration statement of the Company filed under the Act (the
“Lock Up Period”) (or such longer period, not to exceed 18 days after the expiration of the 180-day
period, as the underwriters or the Company shall request in order to facilitate compliance with
NASD Rule 2711). Purchaser agrees to execute and deliver such other agreements as may be
reasonably requested by the Company and/or the managing underwriter(s) which are consistent with
the foregoing or which are necessary to give further effect thereto. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with respect to Purchaser’s
Restricted Securities until the end of such period. The underwriters of the Company’s stock are
intended third party beneficiaries of this Section 5 and shall have the right, power and authority
to enforce the provisions hereof as though they were a party hereto.
6. Miscellaneous.
(a) Notices. All notices required or permitted hereunder shall be in writing and shall be
deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by
confirmed telex or facsimile if sent during normal business hours of the recipient, and if not
during normal business hours of the recipient, then on the next business day, (iii) five (5)
calendar days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) one (1) business day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt. All communications
shall be sent to the other party hereto at such party’s address hereinafter set forth on the
signature page hereof, or at such other address as such party may designate by ten (10) days
advance written notice to the other party hereto.
(b) Successors and Assigns. This Agreement shall inure to the benefit of the successors and
assigns of the Company and, subject to the restrictions on transfer herein set forth, be binding
upon Purchaser, Purchaser’s successors, and assigns.
(c) Governing Law; Venue. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. The parties agree that any action brought by either
party to interpret or enforce any provision of this Agreement shall be brought in, and each party
agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or
federal court for the district encompassing the Company’s principal place of business.
(d) Further Execution. The parties agree to take all such further action(s) as may reasonably
be necessary to carry out and consummate this Agreement as soon as practicable, and to take
whatever steps may be necessary to obtain any governmental approval in connection with or otherwise
qualify the issuance of the securities that are the subject of this Agreement.
(e) Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes and
merges all prior agreements or understandings, whether written or oral. This Agreement may
not be amended, modified or revoked, in whole or in part, except by an agreement in writing signed
by each of the parties hereto.
(f) Independent Counsel. Purchaser acknowledges that this Agreement has been prepared on
behalf of the Company by Xxxxxx Godward llp, counsel to the Company and that Xxxxxx
Godward llp does not represent, and is not acting on behalf of, Purchaser. Purchaser has
been provided with an opportunity to consult with Purchaser’s own counsel with respect to this
Agreement.
(g) Severability. If one or more provisions of this Agreement are held to be unenforceable
under applicable law, the parties agree to renegotiate such provision in good faith. In the event
that the parties cannot reach a mutually agreeable and enforceable replacement for such provision,
then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement
shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement
shall be enforceable in accordance with its terms.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one instrument.
(i) CIRCULAR 230 DISCLAIMER. THE TAX LAW IS VERY COMPLEX. THIS AGREEMENT CONTAINS
STATEMENTS REGARDING GENERAL TAX PRINCIPLES THAT MAY NOT BE SPECIFIC TO YOUR TAX SITUATION. THIS
ADVICE WAS NOT INTENDED OR WRITTEN TO BE USED BY YOU FOR THE PURPOSE OF AVOIDING TAX PENALTIES THAT
MIGHT BE IMPOSED ON YOU. YOU SHOULD SEEK ADVICE BASED ON YOUR OWN PARTICULAR CIRCUMSTANCES FROM
YOUR INDEPENDENT TAX ADVISOR. THIS DISCLAIMER IS REQUIRED BY THE INTERNAL REVENUE SERVICE’S
CIRCULAR 230.
In Witness Whereof, the parties hereto have executed this Agreement as of the day and
year first above written.
| Acquicor Technology Inc. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx, President, | ||||
| Chief Operating Officer and Secretary Address: 0000 Xxxxx Xx., #000, Xxxxxxx Xxxxx, XX 00000 |
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Acquicor Management LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx, Ph.X. | |||
| Xxxxxxx X. Xxxxxx, Ph.D., Managing | ||||
| Member Address: 0000 Xxxxx Xx., #000, Xxxxxxx Xxxxx, XX 00000 |
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