exv4w5



 






BM DRAFT 1/18/06




Exhibit 4.5



THE REGISTERED HOLDER OF THIS PURCHASE OPTION (“HOLDER”) BY ITS ACCEPTANCE HEREOF, AGREES
THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN PROVIDED AND THE
REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR
HYPOTHECATE THIS PURCHASE OPTION FOR A PERIOD OF 180 DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED
BELOW) TO ANYONE OTHER THAN (I) THINKEQUITY PARTNERS LLC (“THINKEQUITY”) OR AN UNDERWRITER
OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF
THINKEQUITY OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.



THIS PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF THE CONSUMMATION BY ACQUICOR
TECHNOLOGY INC. (“COMPANY”) OF A MERGER, CAPITAL STOCK EXCHANGE, STOCK PURCHASE, ASSET
ACQUISITION OR OTHER SIMILAR BUSINESS COMBINATION WITH ONE OR MORE DOMESTIC AND/OR FOREIGN
OPERATING BUSINESSES IN THE TECHNOLOGY, MULTIMEDIA AND NETWORKING SECTORS (AN “INITIAL
TRANSACTION”) (AS DESCRIBED MORE FULLY IN THE COMPANY’S REGISTRATION STATEMENT (DEFINED
HEREIN)) OR ___, 2007. VOID AFTER 5:00 P.M. NEW YORK CITY LOCAL TIME, ___, 2011.




UNIT PURCHASE OPTION




FOR THE PURCHASE OF




____________ UNITS




OF




ACQUICOR TECHNOLOGY INC.




1. Purchase Option.




     THIS CERTIFIES THAT, in consideration of $100.00 duly paid by or on behalf of ThinkEquity
Partners LLC, as registered owner of this Purchase Option, to Acquicor Technologies Inc., Holder is
entitled, at any time or from time to time upon the later of the consummation of an Initial
Transaction, or                          , 2007 (“Commencement Date”), and at or before 5:00
p.m., New York City local time,                            , 2011 (“Expiration Date”), but not
thereafter, to subscribe for, purchase and receive, in whole or in part, up to ___units
(“Units”) of the Company, each Unit consisting of one share of common stock of the Company,
par value $0.0001 per share (“Common Stock”), and two warrants (“Warrant(s)”)
expiring five years from the effective date (“Effective Date”) of the registration
statement (“Registration Statement”) pursuant to which Units are offered for sale to the
public (“Offering”). Each Warrant shall be substantially the same (other than the exercise
price thereof) as the warrants included in the Units being registered for sale to the public by way
of the Registration Statement (“Public Warrants”). If the Expiration Date is a day on which
banking institutions are authorized by law to close, then this Purchase Option may be exercised on
the next succeeding day which is not such a day in accordance with the terms herein. During the
period ending on the Expiration Date, the Company agrees not to take any action that would
terminate this Purchase Option. This Purchase Option is initially exercisable at $            per Unit so
purchased; provided, however, that upon the occurrence of any of the events specified in Section 7
hereof, the rights granted by this Purchase Option, including the exercise price per Unit and the
number of Units (and shares of Common Stock and Warrants) to be received upon such exercise, shall
be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price
or the adjusted exercise price, depending on the context.



 









 





2. Exercise.




     2.1. Exercise Form. In order to exercise this Purchase Option, the exercise form attached
hereto must be duly executed and completed and delivered to the Company, together with this
Purchase Option and payment of the Exercise Price for the Units being purchased payable in cash or
by certified check or official bank check. If the subscription rights represented hereby shall not
be exercised at or before 5:00 p.m., New York City local time, on the Expiration Date this Purchase
Option shall become and be void without further force or effect, and all rights represented hereby
shall cease and expire.



     2.2. Legend. Each certificate for the securities purchased under this Purchase Option shall
bear a legend as follows unless such securities have been registered under the Securities Act of
1933, as amended (“Act”):




“The securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended (“Act”), or applicable state law. The
securities may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act and applicable state law.”



     2.3. Cashless Exercise.




     2.3.1. Determination of Amount. In lieu of the payment of the Exercise Price
multiplied by the number of Units for which this Purchase Option is exercisable and in lieu
of being entitled to receive Units in the manner required by Section 2.1, the Holder shall
have the right (but not the obligation) to convert any exercisable but unexercised portion
of this Purchase Option into Units (“Conversion Right”) as follows: upon exercise of
the Conversion Right, the Company shall deliver to the Holder (without payment by the Holder
of any of the Exercise Price in cash) that number of Units equal to the quotient obtained by
dividing (x) the “Value” (as defined below) of the portion of this Purchase Option being
converted by (y) the “Current Market Price” (as defined below) of a Unit. The “Value” of the
portion of this Purchase Option being converted shall equal the remainder derived from
subtracting (a) the product of (i) the Exercise Price multiplied by (ii) the number of Units
underlying the portion of this Purchase Option being converted from (b) the product of (i)
Current Market Price of a Unit multiplied by (ii) the number of Units underlying the portion
of this Purchase Option being converted. The “Current Market Price” of a Unit at any day
shall mean (i) if the Units are listed on a national securities exchange (including, without
limitation, the American Stock Exchange) or quoted on the Nasdaq National Market, Nasdaq
SmallCap Market or NASD OTC Bulletin Board (or successor such as the Bulletin Board
Exchange), the average closing price of a Unit for the thirty (30) trading days immediately
preceding the date of determination of the Current Market Price in the principal trading
market for the Units as reported by the exchange, Nasdaq or the NASD, as the case may be;
(ii) if Units are not listed on a national securities exchange or quoted on the Nasdaq
National Market, Nasdaq SmallCap Market or the NASD OTC Bulletin Board (or successor such as
the Bulletin Board Exchange), but is traded in the residual over-the-counter market, the
closing bid price for a Unit on the last trading day preceding the date in question for
which such quotations are reported by the Pink Sheets, LLC or similar publisher of such
quotations; and (iii) if the fair market value of the Units cannot be determined pursuant to
clause (i) or (ii) above, such price as the Board of Directors of the Company shall
determine, in good faith.




     2.3.2. Mechanics of Cashless Exercise. The cashless exercise right described in this
Section 2.3 (the “Cashless Exercise Right”) may be exercised by the Holder on any
business day on or after the Commencement Date and not later than the Expiration Date by
delivering this Purchase Option with the duly executed exercise form attached hereto with
the cashless exercise section completed to the Company, exercising the Cashless Exercise
Right and specifying the total number of Units the Holder will purchase pursuant to such
Cashless Exercise Right.



     2.4. Warrant Exercise. Any warrants underlying the Units shall be issued pursuant to and
subject to the terms and conditions set forth in the Warrant Agreement, entered into by and between
the Company and Continental Stock & Transfer Company, dated as
of ___________ (the “Warrant
Agreement”); provided, that the exercise price of the Warrants shall be as set forth herein.



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3. Transfer.




     3.1. General Restrictions. The registered Holder of this Purchase Option, by its acceptance
hereof, agrees that it will not sell, transfer, assign, pledge or hypothecate this Purchase Option
for a period of 180 days following the Effective Date to anyone other than (i) ThinkEquity or an
underwriter or a selected dealer participating in the Offering, or (ii) a bona fide officer or
partner of ThinkEquity or of any such underwriter or selected dealer. On and after the
180th day of the Effective Date, transfers to others may be made subject to compliance
with or exemptions from applicable securities laws. In order to make any permitted assignment, the
Holder must deliver to the Company the assignment form attached hereto duly executed and completed,
together with this Purchase Option and payment of all transfer taxes, if any, payable in connection
therewith. The Company shall as soon as reasonably practicable transfer this Purchase Option on the
books of the Company and shall execute and deliver a new Purchase Option or Purchase Options of
like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate
number of Units purchasable hereunder or such portion of such number as shall be contemplated by
any such assignment.



     3.2. Restrictions Imposed by the Act. The securities evidenced by this Purchase Option shall
not be transferred unless and until (i) the Company has received the opinion of counsel for the
Holder that the securities may be transferred pursuant to an exemption from registration under the
Act and applicable state securities laws, the availability of which is established to the
reasonable satisfaction of the Company (the Company hereby agreeing that the opinion of Bingham
McCutchen LLP shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a
registration statement or a post-effective amendment to the Registration Statement relating to such
securities has been filed by the Company and declared effective by the Securities and Exchange
Commission (the “Commission”) and compliance with applicable state securities law has been
established.



4. New Purchase Options to be Issued.




     4.1. Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this
Purchase Option may be exercised or assigned in whole or in part. In the event of the exercise or
assignment hereof in part only, upon surrender of this Purchase Option for cancellation, together
with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price
and/or transfer tax, the Company shall cause to be delivered to the Holder without charge a new
Purchase Option of like tenor to this Purchase Option in the name of the Holder evidencing the
right of the Holder to purchase the number of Units purchasable hereunder as to which this Purchase
Option has not been exercised or assigned.



     4.2. Lost Certificate. Upon receipt by the Company of evidence satisfactory to it of the
loss, theft, destruction or mutilation of this Purchase Option and of reasonably satisfactory
indemnification or the posting of a bond, the Company shall execute and deliver a new Purchase
Option of like tenor and date. Any such new Purchase Option executed and delivered as a result of
such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on
the part of the Company.



5. Registration Rights.




     5.1. Demand Registration.




     5.1.1. Grant of Right. The Company, upon written demand (“Initial Demand
Notice”) of the Holder(s) of at least 51% of the Purchase Options and/or the underlying
Units and/or the underlying securities (“Majority Holders”), agrees to register on
one occasion, all or any portion of the Purchase Options requested by the Majority Holders
in the Initial Demand Notice and all of the securities underlying such Purchase Options,
including the Units, Common Stock, the Warrants and the Common Stock underlying the Warrants
(collectively, the “Registrable Securities”). On such occasion, the Company will
file a registration statement or a post-effective amendment to the Registration Statement
covering the Registrable Securities within sixty days after receipt of the Initial Demand
Notice and use its reasonable best efforts to have such registration statement or
post-effective amendment declared effective as soon as



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possible thereafter; provided, that, if the Chief Executive Officer of the Company
furnishes to the Majority Holders a certificate stating in good faith that the Company
expects to file a registration statement (other than a registration statement relating to
any employee benefit plan, or a registration statement related solely to stock issued upon
conversion of debt securities) within 90 days of the Company’s receipt of the Initial Demand
Notice and is exercising its right to delay the filing of a Registration Statement during
the resulting Blackout Period (defined below) (the “Blackout Period Certificate”)
within five (5) Business Days after it receives the Initial Demand Notice then (i) the
Company shall not be required to take any action pursuant to this section 5.1 during such
Blackout Period provided that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective, (ii) the Initial Demand
Notice shall be deemed received, for purposes of determining the availability of
registration rights of the Holders under this Section 5.1, when actually received by the
Company, and (iii) the Initial Demand Notice shall be deemed received, for purposes of
determining the timing of any obligation of the Company under this Section 5.1, on the first
Business Day immediately succeeding the conclusion of such Blackout Period. The Initial
Demand Notice for registration may be made at any time during a period of five years
beginning on the Effective Date; provided, that the Majority Holders may not deliver an
Initial Demand Notice pursuant to this Section 5.1.1 prior to the consummation of an Initial
Transaction. The Company shall give written notice of its receipt of any Initial Demand
Notice by any Holder(s) to all other registered Holders of the Purchase Options and/or the
Registrable Securities within ten days from the date of the receipt of any such Initial
Demand Notice. Once made, a request for registration pursuant to an Initial Demand Notice
provided in accordance with this Section 5.1.1 may not be revoked, except that such a
request for registration pursuant to an Initial Demand Notice may be revoked (and shall not
be deemed to have been made for purposes of determining the rights of the Holders under this
Section 5.1.1) by the Majority Holders if (i) the Majority Holders have received a notice of
a Blackout Period from the Company and (ii) the Majority Holders provide written notice to
the Company within thirty (30) days of receipt of any such notice of a Blackout Period
requesting such revocation for the purpose of preserving the right to request registration
pursuant to an Initial Demand Notice at a time subsequent thereto. For purposes of this
Section 5, “Blackout Period” means a period not to exceed (90) days beginning on the date
the Company’s Chief Executive Officer furnishes to the Majority Holder the Blackout Period
Certificate; provided that in the event the Company in fact files such registration
statement within such 90-day period, such 90-day period shall be extended until the last day
of the distribution period of such primary offering of securities. The Company may not
delay the ability of the Majority Holders to exercise any of their rights under this
Purchase Option by way of giving notice of a Blackout Period more than once in any 12 month
period, and any notice of a Blackout Period given by the Company to the Majority Holders
cannot come less than six months after a previous Blackout Period notice given by the
Company. Notwithstanding anything to the contrary herein, a request for registration
pursuant to an Initial Demand Notice shall not be deemed to have been made for purposes of
determining the rights of the Holders under this Section 5.1.1 if (i) the Majority Holders
have requested registration pursuant to an Initial Demand Notice and (ii) such registration
has not occurred as a result of the Company’s failure to comply with its obligations under
this Section 5.1. For the avoidance of doubt, subject to the other terms and conditions set
forth herein, the Company is required to effect only one (1) registration at the request of
the Majority Holders under this Section 5.1.1 that is declared or ordered effective.




     5.1.2. Terms. The Company shall bear all fees and expenses attendant to registering
the Registrable Securities, including the reasonable fees and expenses of one legal counsel
selected by the Majority Holders to represent them in connection with the sale of the
Registrable Securities, but the Majority Holders shall pay any and all underwriting
discounts and commissions. The Company agrees to use its reasonable best efforts to qualify
or register the Registrable Securities in such States as are reasonably requested by the
Majority Holder(s); provided, however, that in no event shall the Company be required to
register the Registrable Securities in a State in which such registration would cause (i)
the Company to be obligated to qualify to do business in such State, or would subject the
Company to taxation as a foreign corporation doing business in such jurisdiction or (ii) the
principal stockholders of the Company to be obligated to escrow their shares of capital
stock of the Company. The Company shall cause any registration statement or post-effective
amendment filed pursuant to the demand rights granted under Section 5.1.1 to remain
effective for a period of nine consecutive months from the effective date of such
registration statement or post-effective amendment.



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     5.2. “Piggy-Back” Registration.




     5.2.1. Grant of Right. In addition to the demand right of registration, the Holders of
the Purchase Options shall have the right for a period of seven years commencing on the
Effective Date, to include the Registrable Securities as part of any other registration of
securities filed by the Company (other than in connection with a transaction contemplated by
Rule 145(a) promulgated under the Act or pursuant to Form S-8); provided, however, that if
the managing underwriter or underwriters for such offering that is to be an underwritten
offering advises the Company and the Holders in writing that the dollar amount or number of
Registrable Securities that the Holders desire to sell, taken together with all other shares
of Common Stock or other securities that the Company desires to sell and the shares of
Common Stock, if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights held by other holders of the Company’s securities
who desire to sell securities, exceeds the maximum dollar amount or maximum number of shares
that can be sold in such offering without adversely affecting the proposed offering price,
the timing, the distribution method, or the probability of success of such offering (such
maximum dollar amount or maximum number of shares, as applicable, the “Maximum Number of
Shares”), then the Company shall include in such registration:




     (i) If the registration is undertaken for the Company’s account or is a
“demand” registration undertaken at the demand of persons who were
stockholders of the Company prior to the consummation of its initial public
offering (the “Initial Stockholders”) pursuant to the Registration Rights
Agreement, dated as of ___________, 2006, by and among the Company and the
stockholders party thereto (the “Registration Rights Agreement”),
(A) first, the shares of Common Stock for the account of the demanding
Initial Stockholders (“Insider Shares”) as to which the demand
registration has been requested pursuant to the Registration Rights
Agreement, together with all other shares of Common Stock or other
securities that the Company desires to sell and the Registrable Securities
as to which registration has been requested pursuant to this Section 5.2
(all pro rata in accordance with the number of shares that the Holders, the
Company, and/or the Initial Stockholders shall have requested to be included
in such registration), that can be sold without exceeding the Maximum Number
of Shares; (B) second, to the extent that the Maximum Number of Shares has
not been reached under the foregoing clause (A), the shares of Common Stock,
if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights which other shareholders desire
to sell that can be sold without exceeding the Maximum Number of Shares; and
(C) third, to the extent the Maximum Number of Shares has not been reached
under the foregoing clauses (A) and (B), the shares of Common Stock, if any,
that other stockholders desire to sell that can be sold without exceeding
the Maximum Number of Shares; and




     (ii) If the registration is a “demand” registration undertaken at the
demand of persons other than the holders of Registrable Securities or the
Initial Stockholders pursuant to written contractual arrangements with such
persons, (A) first, the shares of Common Stock for the account of the
demanding persons as to which demand registration has been requested,
together with all other shares of Common Stock or other securities that the
Company desires to sell, the Registrable Securities as to which registration
has been requested pursuant to this Section 5.2, and the Insider Shares as
to which registration has been requested pursuant to the Registration Rights
Agreement (all pro rata in accordance with the number of shares that the
demanding stockholders, the Holders, the Company, and/or the Initial
Stockholders shall have requested to be included in such registration), that
can be sold without exceeding the Maximum Number of Shares; (B) second, to
the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock, if any, as to which
registration has been requested pursuant to written contractual piggy-back
registration rights which other shareholders desire to sell that can be sold
without exceeding the Maximum Number of Shares; and (C) third, to the extent
the Maximum Number of



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Shares has not been reached under the foregoing clauses (A) and (B),
the shares of Common Stock, if any, that other stockholders desire to sell
that can be sold without exceeding the Maximum Number of Shares.




     5.2.2. Terms. The Company shall bear all fees and expenses attendant to registering
the Registrable Securities, including the expenses of one legal counsel selected by a
majority of the Holders to represent them in connection with the sale of the Registrable
Securities but the Holders shall pay any and all underwriting discounts and commissions
related to the Registrable Securities. In the event of such a proposed registration, the
Company shall furnish the then Holders of outstanding Registrable Securities with not less
than fifteen days written notice prior to the proposed date of filing of such registration
statement. Such notice to the Holders shall continue to be given for each applicable
registration statement filed (during the period in which the Purchase Option is exercisable)
by the Company until such time as all of the Registrable Securities have been registered and
sold. The holders of the Registrable Securities shall exercise the “piggy back” rights
provided for herein by giving written notice, within ten days of the receipt of the
Company’s notice of its intention to file a registration statement.



     5.3. Suspension of Use of Effective Registration Statement. If a registration statement
relating to the registration of Registrable Securities under this Section 5 hereof has been
declared effective (“Effective Registration Statement”), subject to the good faith
determination by the Board of Directors of the Company that it is reasonably necessary to suspend
the use of such Effective Registration Statement or sales of Registrable Securities by Holders
under such Effective Registration Statement, the Company may, upon written notice (the
“Suspension Notice”) to the Holders, direct the Holders to suspend the use of or sales
under such Effective Registration Statement for a period not to exceed thirty (30) days in any
three (3) month period or ninety (90) days in the aggregate in any twelve (12) month period, if any
of the following events (each, a “Suspension Event”) shall occur: negotiations relating to, or the
consummation of, a transaction or the occurrence of an event, in each case, that (i) would require
additional disclosure of material information by the Company in such Effective Registration
Statement or other public filings and which has not been so disclosed, and (ii) either (x) as to
which the Company has a bona fide business purpose for preserving confidentiality, or (y) that
renders the Company unable to comply with SEC requirements or (z) that would make it unduly
burdensome to promptly amend or supplement such Effective Registration Statement on a
post-effective basis, as applicable. Upon the occurrence of any such Suspension Event, the Company
shall use its reasonable best efforts to take or cause to be taken such action as is necessary to
permit resumed use of such Effective Registration Statement promptly following the cessation of the
Suspension Event giving rise to such suspension so as to permit the Holders to resume use of and
sales under such Effective Registration Statement as soon as practicable thereafter. Upon cessation
of the Suspension Event giving rise to such suspension, the Company shall provide the Holders with
prompt written notice that the Suspension Event has ceased (the “End of Suspension
Notice”). The Holders shall not effect any sales of the Registrable Securities pursuant to such
Effective Registration Statement at any time after it has received a Suspension Notice from the
Company and prior to receipt of an End of Suspension Notice. If so directed by the Company in a
Suspension Notice, each Holder will deliver to the Company (at the expense of the Company) all
copies, other than permanent file copies then in such Holder’s possession, of any prospectuses
covering the Registrable Securities at the time of receipt of such Suspension Notice.



     5.4. General Terms.




     5.4.1. Indemnification. The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement hereunder and each person, if
any, who controls such Holders within the meaning of Section 15 of the Act or Section 20(a)
of the Securities Exchange Act of 1934, as amended (“Exchange Act”), against all loss,
claim, damage, expense or liability (including all reasonable attorneys’ fees and other
expenses reasonably incurred in investigating, preparing or defending against litigation,
commenced or threatened, or any claim whatsoever whether arising out of any action between
the underwriter and the Company or between the underwriter and any third party or otherwise)
to which any of them may become subject under the Act, the Exchange Act or otherwise,
arising from such registration statement but only to the same extent and with the same
effect as the provisions pursuant to which the Company has agreed to indemnify the
underwriters contained in [Section 5] of the Underwriting Agreement between the Company,
ThinkEquity and the other underwriters named therein dated the Effective Date. The
Holder(s) of the Registrable Securities to be sold pursuant to such registration



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statement, and their successors and assigns, shall severally, and not jointly,
indemnify the Company, its officers and directors and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against all loss, claim, damage, expense or liability (including all reasonable attorneys’
fees and other expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which they may become subject under the Act, the Exchange Act or
otherwise, arising from information furnished by or on behalf of such Holders, or their
successors or assigns, in writing, for specific inclusion in such registration statement but
only to the same extent and with the same effect as the provisions contained in [Section 5]
of the Underwriting Agreement pursuant to which the underwriters have agreed to indemnify
the Company.




     5.4.2. Exercise of Purchase Options. Nothing contained in this Purchase Option shall
be construed as requiring the Holder(s) to exercise their Purchase Options or Warrants
underlying such Purchase Options prior to or after the initial filing of any registration
statement or the effectiveness thereof.




     5.4.3. Documents Delivered to Holders. The Company shall furnish ThinkEquity, as
representative of the Holders participating in any of the foregoing offerings, a signed
counterpart, addressed to the participating Holders, of (i) an opinion of counsel to the
Company, dated the effective date of such registration statement (and, if such registration
includes an underwritten public offering, an opinion dated the date of the closing under any
underwriting agreement related thereto), and (ii) a “cold comfort” letter dated the
effective date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the underwriting
agreement) signed by the independent public accountants who have issued a report on the
Company’s financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration statement (and the
prospectus included therein) and, in the case of such accountants’ letter, with respect to
events subsequent to the date of such financial statements, as are customarily covered in
opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in
underwritten public offerings of securities. The Company shall also deliver promptly to
ThinkEquity, as representative of the Holders participating in the offering, the
correspondence and memoranda described below and copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the registration statement and
permit ThinkEquity, as representative of the Holders, to do such investigation, upon
reasonable advance notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary to comply with applicable securities
laws or rules of the National Association of Securities Dealers, Inc. (“NASD”).
Such investigation shall include access to books, records and properties and opportunities
to discuss the business of the Company with its officers and independent auditors, all to
such reasonable extent and at such reasonable times and as often as ThinkEquity, as
representative of the Holders, shall reasonably request. The Company shall not be required
to disclose any confidential information or other records to ThinkEquity, as representative
of the Holders, or to any other person, until and unless such persons shall have entered
into reasonable confidentiality agreements (in form and substance reasonably satisfactory to
the Company), with the Company with respect thereto.




     5.4.4. Underwriting Agreement. The Company shall enter into an underwriting agreement
with the managing underwriter(s), if any, selected by any Holders whose Registrable
Securities are being registered pursuant to this Section 5, which managing underwriter shall
be reasonably acceptable to the Company. Such agreement shall be reasonably satisfactory in
form and substance to the Company, each Holder and such managing underwriters, and shall
contain such representations, warranties and covenants by the Company and such other terms
as are customarily contained in agreements of that type used by the managing underwriter.
The Holders shall be parties to any underwriting agreement relating to an underwritten sale
of their Registrable Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit of such
underwriters shall also be made to and for the benefit of such Holders; provided that the
foregoing shall not be deemed to permit such Holders to negotiate the terms of the
underwriting agreement (in their capacity as Holders). Such Holders shall not be required
to make any representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended methods of
distribution. Such Holders, however, shall agree to such covenants and indemnification and
contribution



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obligations for selling stockholders as are customarily contained in agreements of that
type used by the managing underwriter. Further, such Holders shall execute appropriate
custody agreements and otherwise cooperate fully in the preparation of the registration
statement and other documents relating to any offering in which they include securities
pursuant to this Section 5. Each Holder shall also furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method of
disposition of such securities as shall be reasonably required to effect the registration of
the Registrable Securities.




     5.4.5. Rule 144 Sale. Notwithstanding anything contained in this Section 5 to the
contrary, the Company shall have no obligation pursuant to Sections 5.1 or 5.2 for the
registration of Registrable Securities held by any Holder (i) where such Holder would then
be entitled to sell under Rule 144 promulgated under the Act (“Rule 144”) within any
three-month period (or such other period prescribed under Rule 144 as may be provided by
amendment thereof) all of the Registrable Securities then held by such Holder, and (ii)
where the number of Registrable Securities held by such Holder is within the volume
limitations under paragraph (e) of Rule 144 (calculated as if such Holder were an affiliate
within the meaning of Rule 144).




     5.4.6. Supplemental Prospectus. Each Holder agrees, that upon receipt of any notice
from the Company of the happening of any event as a result of which the prospectus included
in the Registration Statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then existing, such
Holder will immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such Holder’s receipt of
the copies of a supplemental or amended prospectus, and, if so desired by the Company, such
Holder shall deliver to the Company (at the expense of the Company) or destroy (and deliver
to the Company a certificate of such destruction) all copies, other than permanent file
copies then in such Holder’s possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.




     5.4.7. Holder Obligations. No Holder may participate in any underwritten offering
pursuant to this Section 5 unless such Holder (i) agrees to sell only the Holder’s
Registrable Securities on the basis reasonably provided in any underwriting agreement, and
(ii) completes, executes and delivers any and all questionnaires, powers of attorney,
custody agreements, indemnities, underwriting agreements and other documents reasonably and
customarily required by or under the terms of any underwriting agreement.


6. Warrant Redemption. Notwithstanding anything to the contrary contained herein or in that
certain Warrant Agreement, dated as of                              , 2006, between the Company and
Continental Stock Transfer & Trust Company, as Warrant Agent (the “Warrant Agreement”), (i)
this Purchase Option shall, if not earlier exercised in full, be automatically exercised, on a
cashless basis as described in Section 2.3.1 hereof, immediately prior to the Redemption Date (as
defined in the Warrant Agreement) redemption of the Company’s outstanding warrants pursuant to
[Section 6] of the Warrant Agreement (provided that notice is provided to the Holder on the same
terms as provided to the holders of Warrants pursuant to the Warrant Agreement), and (ii) each
Warrant that is part of a Unit issued hereunder upon such automatic conversion shall be redeemed by
the Company as part of such redemption for the Redemption Price (as defined in the Warrant
Agreement).




7. Adjustments.




     7.1. Adjustments to Exercise Price and Number of Securities. The Exercise Price and the
number of Units underlying this Purchase Option shall be subject to adjustment from time to time as
hereinafter set forth:




     7.1.1. Stock Dividends—Split-Ups. If after the date hereof, and subject to the
provisions of Section 7.4 below, the number of outstanding shares of Common Stock is
increased by a stock dividend payable in shares of Common Stock or by a split-up of shares
of Common Stock or other similar event, then, on the effective date thereof, the number of
shares of Common Stock underlying each of the Units purchasable hereunder shall be increased
in proportion to such increase in outstanding shares. In such case,



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the number of shares of Common Stock, and the exercise price applicable thereto,
underlying the Warrants underlying each of the Units purchasable hereunder shall be adjusted
in accordance with the terms of the Warrants (even though such Warrants shall not yet have
been issued). For example, if the Company declares a two-for-one stock dividend and at the
time of such dividend this Purchase Option is for the purchase of one Unit at $7.50 per
whole Unit (and each Warrant underlying the Units is exercisable for $6.25 per share), upon
effectiveness of the dividend, this Purchase Option will be adjusted to allow for the
purchase of one Unit at $7.50 per Unit, each Unit entitling the holder to receive two shares
of Common Stock and four Warrants (each Warrant exercisable for $3.13 per share).




     7.1.2. Aggregation of Shares. If after the date hereof, and subject to the provisions
of Section 7.4, the number of outstanding shares of Common Stock is decreased by a
consolidation, combination or reclassification of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of Common Stock underlying
each of the Units purchasable hereunder shall be decreased in proportion to such decrease in
outstanding shares. In such case, the number of shares of Common Stock, and the exercise
price applicable thereto, underlying the Warrants underlying each of the Units purchasable
hereunder shall be adjusted in accordance with the terms of the Warrants (even though such
Warrants shall not yet have been issued).




     7.1.3. Replacement of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding shares of Common Stock other than a
change covered by Section 7.1.1 or 7.1.2 hereof or that solely affects the par value of such
shares of Common Stock, or in the case of any merger or consolidation of the Company with or
into another corporation (other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification or reorganization of
the outstanding shares of Common Stock), or in the case of any sale or conveyance to another
corporation or entity of the property of the Company as an entirety or substantially as an
entirety in connection with which the Company is dissolved, the Holder of this Purchase
Option shall have the right thereafter (until the expiration of the right of exercise of
this Purchase Option) to receive upon the exercise hereof, for the same aggregate Exercise
Price payable hereunder immediately prior to such event, the kind and amount of shares of
stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution following
any such sale or transfer, by a Holder of the number of shares of Common Stock of the
Company obtainable upon exercise of this Purchase Option and the underlying Warrants
immediately prior to such event; and if any reclassification also results in a change in
shares of Common Stock covered by Section 7.1.1 or 7.1.2, then such adjustment shall be made
pursuant to Sections 7.1.1, 7.1.2 and this Section 7.1.3. The provisions of this Section
7.1.3 shall similarly apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.




     7.1.4. Changes in Form of Purchase Option. This form of Purchase Option need not be
changed because of any change pursuant to this Section, and Purchase Options issued after
such change may state the same Exercise Price and the same number of Units as are stated in
the Purchase Options initially issued pursuant to this Agreement. The acceptance by any
Holder of the issuance of new Purchase Options reflecting a required or permissive change
shall not be deemed to waive any rights to an adjustment occurring after the Commencement
Date or the computation thereof.



     7.2. [Intentionally Omitted]



     7.3. Substitute Purchase Option. In case of any consolidation of the Company with, or merger
of the Company with, or merger of the Company into, another corporation (other than a consolidation
or merger which does not result in any reclassification or change of the outstanding Common Stock),
the corporation formed by such consolidation or merger shall execute and deliver to the Holder a
supplemental Purchase Option providing that the holder of each Purchase Option then outstanding or
to be outstanding shall have the right thereafter (until the stated expiration of such Purchase
Option) to receive, upon exercise of such Purchase Option, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger, by a holder of the
number of shares of Common Stock of the Company for which such Purchase Option might have been
exercised immediately prior to such consolidation, merger, sale or transfer. Such supplemental
Purchase Option shall provide



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for adjustments which shall be identical to the adjustments provided in Section 7. The above
provision of this Section shall similarly apply to successive consolidations or mergers.



     7.4. Elimination of Fractional Interests. The Company shall not be required to issue
certificates representing fractions of shares of Common Stock or Warrants upon the exercise of this
Purchase Option, nor shall it be required to issue scrip or pay cash in lieu of any fractional
interests, it being the intent of the parties that all fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of Warrants, shares of Common Stock or other
securities, properties or rights.


8. Reservation and Listing. The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon exercise of this
Purchase Option or the Warrants underlying this Purchase Option, such number of shares of Common
Stock or other securities, properties or rights as shall be issuable upon the exercise thereof. The
Company covenants and agrees that, upon exercise of this Purchase Option and payment of the
Exercise Price therefor, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid and non-assessable and not subject to
preemptive rights of any stockholder. The Company further covenants and agrees that upon exercise
of the Warrants underlying this Purchase Option and payment of the respective Warrant exercise
price therefor, all shares of Common Stock and other securities issuable upon such exercise shall
be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of
any stockholder. As long as this Purchase Option shall be outstanding, the Company shall use
commercially reasonable efforts to cause all (i) Units and shares of Common Stock issuable upon
exercise of this Purchase Option, (ii) Warrants issuable upon exercise of this Purchase Option and
(iii) shares of Common Stock issuable upon exercise of the Warrants included in the Units issuable
upon exercise of this Purchase Option to be listed (subject to official notice of issuance) on all
securities exchanges (or, if applicable on the Nasdaq National Market, SmallCap Market, OTC
Bulletin Board or any successor trading market) on which the Units, the Common Stock or the Public
Warrants issued to the public in connection herewith may then be listed and/or quoted.




9. Certain Notice Requirements.




     9.1. Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon
the Holders the right to vote or consent as a stockholder for the election of directors or any
other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at
any time prior to the expiration of the Purchase Options and their exercise, any of the events
described in Section 9.2 shall occur, then, in one or more of said events, the Company shall give
written notice of such event at least fifteen days prior to the date fixed as a record date or the
date of closing the transfer books for the determination of the stockholders entitled to such
dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to
vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such
record date or the date of the closing of the transfer books, as the case may be. Notwithstanding
the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other
stockholders of the Company at the same time and in the same manner that such notice is given to
the stockholders.



     9.2. Events Requiring Notice. The Company shall be required to give the notice described in
this Section 9 upon one or more of the following events: (i) if the Company shall take a record of
the holders of its shares of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or distribution payable
otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend
or distribution on the books of the Company, (ii) the Company shall offer to all the holders of its
Common Stock any additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option, right or warrant to
subscribe therefor or (iii) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all of its property,
assets and business shall be proposed.



     9.3. Notice of Change in Exercise Price. The Company shall, promptly after an event requiring
a change in the Exercise Price pursuant to Section 7 hereof, send notice to the Holders of such
event and change (“Price Notice”). The Price Notice shall describe the event causing the
change and the method of calculating same and shall be certified as being true and accurate by the
Company’s President and Chief Executive Officer.



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     9.4. Transmittal of Notices. All notices, requests, consents and other communications under
this Purchase Option shall be in writing and shall be deemed to have been duly made when hand
delivered, or mailed by express mail or private courier service: (i) if to the registered Holder of
this Purchase Option, to the address of such Holder as shown on the books of the Company, or (ii)
if to the Company, to the following address or to such other address as the Company may designate
by notice to the Holders:




Acquicor Technology Inc.

4910 Birch Street, #102

Newport Beach, California 92660

Attention: Gilbert F. Amelio, Ph.D.





With a copy to:




Cooley Godward LLP

101 California Street, 5th Floor

San Francisco, California 94111-5800

Attention: Kenneth L. Guernsey




10. Miscellaneous.




     10.1. Amendments. The Company and ThinkEquity may from time to time supplement or amend this
Purchase Option without the approval of any of the Holders in order to cure any ambiguity, to
correct or supplement any provision contained herein that may be defective or inconsistent with any
other provisions herein, or to make any other provisions in regard to matters or questions arising
hereunder that the Company and ThinkEquity may deem necessary or desirable and that the Company and
ThinkEquity deem shall not adversely affect the interest of the Holders. All other modifications or
amendments shall require the written consent of and be signed by the party against whom enforcement
of the modification or amendment is sought.



     10.2. Headings. The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or interpretation of any of the
terms or provisions of this Purchase Option.



     10.3. Entire Agreement. This Purchase Option (together with the other agreements and
documents being delivered pursuant to or in connection with this Purchase Option) constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes
all prior agreements and understandings of the parties, oral and written, with respect to the
subject matter hereof.



     10.4. Binding Effect. This Purchase Option shall inure solely to the benefit of and shall be
binding upon, the Holder and the Company and their permitted assignees, respective successors,
legal representative and assigns, and no other person shall have or be construed to have any legal
or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Option or
any provisions herein contained.



     10.5. Governing Law; Submission to Jurisdiction. This Purchase Option shall be governed by
and construed and enforced in accordance with the laws of the State of New York, without giving
effect to conflict of laws. The Company hereby agrees that any action, proceeding or claim against
it arising out of, or relating in any way to this Purchase Option may be brought and enforced in
the courts of the State of New York or of the United States of America for the Southern District of
New York, and irrevocably submits to such jurisdiction. Any process or summons to be served upon
the Company 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 in Section 9 hereof.
Such mailing shall be deemed personal service and shall be legal and binding upon the Company in
any action, proceeding or claim. The Company and the Holder agree that the prevailing party(ies) in
any such action shall be entitled to recover from the other party(ies) all of its (their)
reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.



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     10.6. Waiver, Etc. The failure of the Company or the Holder to at any time enforce any of the
provisions of this Purchase Option shall not be deemed or construed to be a waiver of any such
provision, nor to in any way affect the validity of this Purchase Option or any provision hereof or
the right of the Company or any Holder to thereafter enforce each and every provision of this
Purchase Option. No waiver of any breach, non-compliance or non-fulfillment of any of the
provisions of this Purchase Option shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought; and no
waiver of any such breach, non-compliance or non- fulfillment shall be construed or deemed to be a
waiver of any other or subsequent breach or non-compliance.



     10.7. Execution in Counterparts. This Purchase Option may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been signed by each of the
parties hereto and delivered to each of the other parties hereto.



     10.8. Exchange Agreement. As a condition of the Holder’s receipt and acceptance of this
Purchase Option, Holder agrees that, at any time prior to the complete exercise of this Purchase
Option by Holder, if the Company and ThinkEquity enter into an agreement (“Exchange
Agreement”) pursuant to which they agree that all outstanding Purchase Options will be
exchanged for securities or cash or a combination of both, then Holder shall agree to such exchange
and become a party to the Exchange Agreement.



     10.9. Underlying Warrants. At any time after exercise by the Holder of this Purchase Option,
the Holder may exchange his Warrants (with a $_________exercise price) for Public Warrants (with a
$_________exercise price) upon payment to the Company of the difference between the exercise price of
his Warrant and the exercise price of the Public Warrants.



[Remainder of this page intentionally left blank; signature page follows.]




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     IN WITNESS WHEREOF, the Company has caused this Purchase Option to be signed by its duly
authorized officer as of the            day of                          , 2006.



	 	 	 	 	 
	 	ACQUICOR TECHNOLOGY INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title 	 
	 




 









 








Form to be used to exercise Purchase Option:




Acquicor Technology Inc.

4910 Birch Street, #102

Newport Beach, California 92660




Date:                          , 200





     The undersigned hereby elects irrevocably to exercise all or a portion of the within Purchase
Option and to purchase            Units of Acquicor Technology Inc. and hereby makes payment of $          
(at the rate of $           per Unit) in payment of the Exercise Price pursuant thereto. Please issue the
Common Stock and Warrants as to which this Purchase Option is exercised in accordance with the
instructions given below.



or




     The undersigned hereby elects irrevocably to convert its right to purchase            Units
purchasable under the within Purchase Option by surrender of the unexercised portion of the
attached Purchase Option (with a “Value” of $           based on a “Market Price” of $           ). Please issue the
securities comprising the Units as to which this Purchase Option is exercised in accordance with
the instructions given below.



	 	 	 
	 

	 	 
	 

	 	NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the purchase option in every particular, without
alteration or enlargement or any change whatever.





Signature(s) Guaranteed:



THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS,
SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15).




INSTRUCTIONS FOR REGISTRATION OF SECURITIES




	 	 	 	 	 
	Name:

	 	 	 	 
	 

	 	 	 	 
	 

	 	(Print in Block Letters)	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 	 	 





 









 





Form to be used to assign Purchase Option:




ASSIGNMENT



(To be executed by the registered Holder to effect a transfer of the within Purchase Option):



FOR VALUE RECEIVED,                                        does hereby sell, assign and transfer unto                                   
the right to purchase            Units of Acquicor Technology Inc. (“Company”)
evidenced by the within Purchase Option and does hereby authorize the Company to transfer such
right on the books of the Company.



Dated:                          , 200




	 	 	 
	 

	 	 
	 

	 	Signature
	 
	 	 
	 

	 	 
	 

	 	NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the purchase option in every particular, without
alteration or enlargement or any change whatever.





Signature(s) Guaranteed:



THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS,
SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15).