8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 18, 2006

ACQUICOR TECHNOLOGY INC.

(Exact name of registrant as specified in its charter)

Delaware

(State or other jurisdiction of incorporation)

001-32832	20-3320580
(Commission File Number)	(IRS Employer Identification No.)

4910 Birch St., Suite 102

Newport Beach, California 92660

(Address of principal executive offices, including Zip Code)

Registrant's telephone number, including area code: (949) 759-3434

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

On December 18, 2006, Acquicor Technology Inc. (the “Company”) entered into a Purchase Agreement (the “Purchase Agreement”) with CRT Capital Group LLC (“CRT”) and Needham & Company, LLC (“Needham” and together with CRT, the “Initial Purchasers”), relating to the issuance and sale by the Company to the Initial Purchasers of $145.0 million in aggregate principal amount of its 8% Convertible Senior Notes due 2011 (the “Notes”). The Company granted the Initial Purchasers a 45-day option to purchase up to an additional $21.75 million in aggregate principal amount of Notes to cover over-allotments, if any, which the Initial Purchasers exercised on December 20, 2006. $145.0 million in aggregate principal amount of Notes were issued and sold to the Initial Purchasers on December 19, 2006. The additional $21.75 million in aggregate principal amount of Notes were issued and sold to the Initial Purchasers on December 22, 2006.

The Company offered and sold the Notes to the Initial Purchasers in a private placement in reliance on the exemptions from registration provided by Section 4(2) and Regulation D under the Securities Act of 1933, as amended (the “Securities Act”). The Initial Purchasers then sold the Notes to qualified institutional buyers pursuant to the exemption from registration provided by Rule 144A under the Securities Act.

The Notes were issued pursuant to an Indenture, dated December 19, 2006 (the “Indenture”), among the Company and U.S. Bank National Association, as trustee. Pursuant to the terms of an Escrow Agreement, dated December 19, 2006 (the “Escrow Agreement”), by and between the Company, U.S. Bank National Association, as trustee under the Indenture, U.S. Bank National Association, acting in the capacity of collateral agent for the holders of the Notes and U.S. Bank National Association, as escrow agent, the gross proceeds from the sale of the Notes were placed in an escrow account pending the consummation of the merger of the Company’s wholly-owned subsidiary into Jazz Semiconductor, Inc. (the “Merger”) and will only be invested in specified securities such as a money market fund meeting the criterion of Rule 2a-7 under the Investment Company Act of 1940, as amended, or in securities that are direct obligations of, or obligations guaranteed as to principal and interest by, the United States. If the Merger and a proposal to increase the authorized shares of the Company’s common stock (the “Authorized Share Increase”) are approved by the Company’s stockholders prior to May 31, 2007, the funds placed in escrow will be released to the Company immediately prior to the completion of the Merger, less an amount equal to $5.8 million payable to the Initial Purchasers. Prior to the completion of the Merger, the Notes will be the Company’s senior obligations secured by a first priority security interest in the escrow account pursuant to the terms of a Pledge and Security Agreement, dated December 19, 2006 (the “Pledge and Security Agreement”), by and between the Company and U.S. Bank National Association, as collateral agent. After the completion of the Merger, the Notes will be the Company’s senior unsecured obligations and all of the Company’s existing and future domestic subsidiaries will unconditionally guarantee on a joint and several basis the Company’s obligations under the Notes.

If the Merger or the Authorized Share Increase is rejected by the Company’s stockholders or not approved by the Company’s stockholders on or before May 31, 2007, then the Company will redeem the Notes at 100% of the principal amount plus any interest income earned on the funds in the escrow account.

Unless the Notes are redeemed as a result of the Merger or the Authorized Share Increase not being approved by the Company’s stockholders, the Notes will bear interest at a rate of 8% per annum payable semi-annually on each June 30 and December 31, with the first payment due on June 30, 2007. The Company may redeem the Notes on or after December 31, 2009 at the prices set forth in the Indenture. At any time after the completion of the Merger and prior to the maturity of the Notes, unless the Notes have previously been redeemed or repurchased by the Company, the Notes are convertible into shares of the Company’s common stock at an initial conversion rate of 136.426 shares per $1,000 principal amount

of Notes, subject to adjustment in certain circumstances, which is equivalent to an initial conversion price of $7.33 per share. Upon conversion, the Company has the right to deliver, in lieu of shares of its common stock, cash or a combination of cash and shares of its common stock to satisfy its conversion obligation. If the Company elects to deliver cash or a combination of cash and common stock to satisfy its conversion obligation, the amount of such cash and common stock, if any, will be based on the trading price of the Company’s common stock during the 20 consecutive trading days beginning on the third trading day after proper delivery of a conversion notice.

Upon the occurrence of certain specified fundamental changes, the holders of the Notes will have the right, subject to various conditions and restrictions, to require the Company to repurchase the Notes, in whole or in part, at par plus accrued and unpaid interest to, but not including, the repurchase date. In addition, if the Company undergoes certain fundamental changes prior to December 31, 2009, the Company will pay a make whole premium on Notes converted in connection with such fundamental change by issuing additional shares of common stock upon conversion of the Notes.

If an event of default on the Notes occurs, the principal amount of the Notes, plus accrued and unpaid interest (including additional interest, if any), may be declared immediately due and payable, subject to certain conditions set forth in the Indenture.

In connection with the sale of the Notes, the Company entered into a Registration Rights Agreement, dated December 19, 2006 (the “Registration Rights Agreement”), with the Initial Purchasers. Under the Registration Rights Agreement, the Company agreed to file with the Securities and Exchange Commission a shelf registration statement with respect to the resale of the Notes and the sale of the shares of common stock issuable upon conversion of the Notes within 90 calendar days of an affirmative stockholder vote on the Merger and the Authorized Share Increase. The Company also agreed to use its reasonable best efforts to cause such shelf registration statement to be declared effective within 180 calendar days of such affirmative stockholder vote. In the event that the Company fails to satisfy certain of its obligations under the Registration Rights Agreement, it will be required to pay additional interest to the holders of the Notes. In connection with the delivery of the Registration Rights Agreement, the holders of the Company's securities with existing registration rights agreed to waive any piggy-back registration rights they may have in connection with any shelf registration statement or other registration statement filed by the Company pursuant to the Registration Rights Agreement (the “Limited Waiver”).

The descriptions of the Purchase Agreement, the Indenture, the Escrow Agreement, the Pledge and Security Agreement, the Registration Rights Agreement and the Limited Waiver, set forth above are qualified in their entirety by reference to the full and complete terms set forth in such agreements, copies of which are filed as exhibits to this Current Report on Form 8-K and incorporated by reference herein.

ITEM 2.03. CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.

The disclosure set forth above under Item 1.01. is hereby incorporated by reference in this Item 2.03.

ITEM 3.02. UNREGISTERED SALES OF EQUITY SECURITIES.

The disclosure set forth above under Item 1.01. is hereby incorporated by reference in this Item 3.02.

ITEM 3.03. MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS.

The disclosure set forth above under Item 1.01. is hereby incorporated by reference in this Item 3.03.

ITEM 8.01. OTHER EVENTS.

On December 19, 2006, the Company announced the closing of its previously announced private placement of $145.0 million of convertible senior notes due 2011. A copy of the press release is filed as Exhibit 99.1 to this report and is incorporated herein by reference. On December 22, 2006, the Company announced the closing of an additional $21.75 million of convertible senior notes due 2011. A copy of the press release is filed as Exhibit 99.2 to this report and is incorporated herein by reference.

ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.

Exhibit No.	Description
4.1	Indenture, dated December 19, 2006, between Acquicor Technology Inc. and U.S. Bank National Association, as trustee, including Form of 8% Convertible Senior Note due 2011.
4.2	Escrow Agreement, dated December 19, 2006, by and between Acquicor Technology Inc., U.S. Bank National Association, as trustee, U.S. Bank National Association, as collateral agent and U.S. Bank National Association, as escrow agent.
4.3	Pledge and Security Agreement, dated December 19, 2006, by and between the Company and U.S. Bank National Association, as collateral agent.
4.4	Registration Rights Agreement, dated December 19, 2006, among Acquicor Technology Inc, CRT Capital Group LLC and Needham & Company, LLC.
4.5	Limited Waiver, dated as of December 18, 2006, among Acquicor Management LLC, Harold L. Clark, John P. Kensey, Moshe I. Meider, Paul Pittman, ThinkEquity Partners LLC, Wedbush Morgan Securities, Inc., CRT Capital Group LLC and Gunn Allen Financial, Inc.
10.1	Purchase Agreement, dated December 18, 2006, among Acquicor Technology Inc., CRT Capital Group LLC and Needham & Company, LLC.
99.1	Press Release dated December 19, 2006, issued by Acquicor Technology Inc.
99.2	Press Release dated December 22, 2006, issued by Acquicor Technology Inc.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, Acquicor Technology Inc. has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Acquicor Technology Inc.

Dated: December 22, 2006

By:  /s/ Gilbert F. Amelio

Gilbert F. Amelio, Ph.D.

Chief Executive Officer

EXHIBIT INDEX

Exhibit No.	Description
4.1	Indenture, dated December 19, 2006, between Acquicor Technology Inc. and U.S. Bank National Association, as trustee, including Form of 8% Convertible Senior Note due 2011.
4.2	Escrow Agreement, dated December 19, 2006, by and between Acquicor Technology Inc., U.S. Bank National Association, as trustee, U.S. Bank National Association, as collateral agent and U.S. Bank National Association, as escrow agent.
4.3	Pledge and Security Agreement, dated December 19, 2006, by and between the Company and U.S. Bank National Association, as collateral agent.
4.4	Registration Rights Agreement, dated December 19, 2006, among Acquicor Technology Inc., CRT Capital Group LLC and Needham & Company, LLC.
4.5	Limited Waiver, dated as of December 18, 2006, among Acquicor Management LLC, Harold L. Clark, John P. Kensey, Moshe I. Meider, Paul Pittman, ThinkEquity Partners LLC, Wedbush Morgan Securities, Inc., CRT Capital Group LLC and Gunn Allen Financial, Inc.
10.1	Purchase Agreement, dated December 18, 2006, among Acquicor Technology Inc., CRT Capital Group LLC and Needham & Company, LLC.
99.1	Press Release dated December 19, 2006, issued by Acquicor Technology Inc.
99.2	Press Release dated December 22, 2006, issued by Acquicor Technology Inc.

EX-4.1

Exhibit 4.1

Execution Version

ACQUICOR TECHNOLOGY INC.,

as Company

U.S. BANK NATIONAL ASSOCIATION,

as Trustee

INDENTURE

Dated as of December 19, 2006

8% CONVERTIBLE SENIOR NOTES DUE 2011

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TABLE OF CONTENTS

		Page
ARTICLE 1.	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	1
SECTION 1.1.	Definitions	1
SECTION 1.2.	Compliance Certificates and Opinions	13
SECTION 1.3.	Form of Documents Delivered to the Trustee	14
SECTION 1.4.	Acts of Holders of Securities	14
SECTION 1.5.	Notices, Etc., to Trustee, Company and Guarantors	16
SECTION 1.6.	Notice to Holders of Securities; Waiver	17
SECTION 1.7.	Effect of Headings and Table of Contents	17
SECTION 1.8.	Successors and Assigns	17
SECTION 1.9.	Separability Clause	17
SECTION 1.10.	Benefits of Indenture	17
SECTION 1.11.	Governing Law	18
SECTION 1.12.	Legal Holidays	18
SECTION 1.13.	Conflict with Trust Indenture Act	18
SECTION 1.14.	Counterparts.	18
SECTION 1.15.	No Recourse	18
ARTICLE 2.	THE SECURITIES	19
SECTION 2.1.	Form Generally	19
SECTION 2.2.	Title and Terms	19
SECTION 2.3.	Denominations	20
SECTION 2.4.	Execution, Authentication, Delivery and Dating	20
SECTION 2.5.	Global Securities	21
SECTION 2.6.	Registration, Registration of Transfer and Exchange; Restrictions on Transfer	22
SECTION 2.7.	Mutilated, Destroyed, Lost or Stolen Securities	24
SECTION 2.8.	Payment of Interest; Interest Rights Preserved	25
SECTION 2.9.	Persons Deemed Owners	26
SECTION 2.10.	Cancellation	27
SECTION 2.11.	Computation of Interest	27
SECTION 2.12.	CUSIP Numbers	27
ARTICLE 3.	SATISFACTION AND DISCHARGE	27
SECTION 3.1.	Satisfaction and Discharge of Indenture	27
SECTION 3.2.	Application of Trust Money	28
ARTICLE 4.	REMEDIES	29
SECTION 4.1.	Events of Default	29
SECTION 4.2.	Acceleration of Maturity; Rescission and Annulment	30
SECTION 4.3.	Collection of Indebtedness and Suits for Enforcement by Trustee	32

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TABLE OF CONTENTS

(continued)

		Page
SECTION 4.4.	Trustee May File Proofs of Claim	32
SECTION 4.5.	Trustee May Enforce Claims without Possession of Securities	33
SECTION 4.6.	Application of Money Collected	33
SECTION 4.7.	Limitation on Suits	34
SECTION 4.8.	Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert	34
SECTION 4.9.	Restoration of Rights and Remedies	35
SECTION 4.10.	Rights and Remedies Cumulative	35
SECTION 4.11.	Delay or Omission Not Waiver	35
SECTION 4.12.	Control by Holders of Securities	35
SECTION 4.13.	Waiver of Past Defaults	36
SECTION 4.14.	Undertaking for Costs	36
SECTION 4.15.	Waiver of Stay, Usury or Extension Laws	36
ARTICLE 5.	THE TRUSTEE	37
SECTION 5.1.	Certain Duties and Responsibilities	37
SECTION 5.2.	Notice of Defaults	38
SECTION 5.3.	Certain Rights of Trustee	38
SECTION 5.4.	Not Responsible for Recitals or Issuance of Securities	40
SECTION 5.5.	May Hold Securities, Act as Trustee under Other Indentures	40
SECTION 5.6.	Money Held in Trust	40
SECTION 5.7.	Compensation and Reimbursement	40
SECTION 5.8.	Corporate Trustee Required; Eligibility	41
SECTION 5.9.	Resignation and Removal; Appointment of Successor	41
SECTION 5.10.	Acceptance of Appointment by Successor	43
SECTION 5.11.	Merger, Conversion, Consolidation or Succession to Business	43
SECTION 5.12.	Authenticating Agents	43
SECTION 5.13.	Disqualification; Conflicting Interests	44
SECTION 5.14.	Preferential Collection of Claims Against Company	45
ARTICLE 6.	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	45
SECTION 6.1.	Company May Consolidate, Etc., Only on Certain Terms	45
SECTION 6.2.	Successor Substituted	46
ARTICLE 7.	SUPPLEMENTAL INDENTURES	46
SECTION 7.1.	Supplemental Indentures without Consent of Holders of Securities	46

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TABLE OF CONTENTS

(continued)

		Page
SECTION 7.2.	Supplemental Indentures with Consent of Holders of Securities	47
SECTION 7.3.	Execution of Supplemental Indentures	48
SECTION 7.4.	Effect of Supplemental Indentures	48
SECTION 7.5.	Reference in Securities to Supplemental Indentures	49
SECTION 7.6.	Notice of Supplemental Indentures	49
ARTICLE 8.	COVENANTS	49
SECTION 8.1.	Payment of Principal, Premium and Interest	49
SECTION 8.2.	Maintenance of Offices or Agencies	49
SECTION 8.3.	Money for Security Payments to Be Held in Trust	50
SECTION 8.4.	Existence	51
SECTION 8.5.	Statement by Officers as to Default	51
SECTION 8.6.	Delivery of Certain Information	51
SECTION 8.7.	Registration Rights	52
SECTION 8.8.	Additional Subsidiary Guarantees	52
ARTICLE 9.	MAKE WHOLE PREMIUM	53
ARTICLE 10.	CONVERSION OF SECURITIES	54
SECTION 10.1.	Conversion Privilege and Conversion Rate	54
SECTION 10.2.	Conversion Consideration	55
SECTION 10.3.	Exercise of Conversion Privilege	55
SECTION 10.4.	Fractions of Shares	57
SECTION 10.5.	Adjustment of Conversion Rate	58
SECTION 10.6.	Notice of Adjustments of Conversion Rate	62
SECTION 10.7.	Notice of Certain Corporate Action	63
SECTION 10.8.	Company to Reserve Common Stock	63
SECTION 10.9.	Taxes on Conversions	64
SECTION 10.10.	Covenant as to Common Stock	64
SECTION 10.11.	Cancellation of Converted Securities	64
SECTION 10.12.	Provision in Case of Consolidation, Merger or Sale of Assets	64
SECTION 10.13.	Responsibility of Trustee for Conversion Provisions	65
ARTICLE 11.		66
ARTICLE 12.	PURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON A FUNDAMENTAL CHANGE	66
SECTION 12.1.	Right to Require Repurchase	66
SECTION 12.2.	Notices; Method of Exercising Repurchase Right, Etc	67

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TABLE OF CONTENTS

(continued)

		Page
ARTICLE 13.	HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE	68
SECTION 13.1.	Company to Furnish Trustee Names and Addresses of Holders	68
SECTION 13.2.	Preservation of Information	69
SECTION 13.3.	No Recourse Against Others	69
SECTION 13.4.	Reports by Trustee	69
SECTION 13.5.	Reports by Company	70
ARTICLE 14.	REDEMPTION OF SECURITIES	70
SECTION 14.1.	Right of Redemption	70
SECTION 14.2.	Applicability of Article	70
SECTION 14.3.	Election to Redeem; Notice to Trustee	70
SECTION 14.4.	Selection by Trustee of Securities to Be Redeemed	70
SECTION 14.5.	Notice of Redemption	71
SECTION 14.6.	Deposit of Redemption Price	72
SECTION 14.7.	Securities Payable on Redemption Date	72
SECTION 14.8.	Securities Redeemed in Part	72
SECTION 14.9.	Conversion Arrangement on Call for Redemption	73
SECTION 14.10.	Escrow Agreement and Special Mandatory Redemption	73
SECTION 14.11.	Security and Pledge	74
ARTICLE 15.	SUBSIDIARY GUARANTEES	75
SECTION 15.1.	Guarantee	75
SECTION 15.2.	Limitation on Guarantor Liability	76
SECTION 15.3.	Execution and Delivery of Subsidiary Guarantee	76
SECTION 15.4.	Guarantors May Consolidate, etc., on Certain Terms; Releases	77

iv

CROSS-REFERENCE TABLE*

TIA SECTION		INDENTURE SECTION
Section	310(a)(1)	5.8
	(a)(2)	5.8
	(a)(3)	N/A**
	(a)(4)	N/A**
	(a)(5)	5.8
	(b)	5.9, 5.10, 5.13
	(c)	N/A**
Section	311(a)	5.14
	(b)	5.14
	(c)	N/A**
Section	312(a)	13.1, 13.2
	(b)	13.2
	(c)	13.2
Section	313(a)	13.4
	(b)(1)	N/A
	(b)(2)	13.4
	(c)	1.6, 13.4
	(d)	13.4
Section	314(a)	1.5, 8.5, 8.6, 13.5
	(b)	N/A**
	(c)(1)	1.2
	(c)(2)	1.2
	(c)(3)	N/A**
	(d)	N/A**
	(e)	1.2
	(f)	N/A**
Section	315(a)	5.1(a)
	(b)	1.6, 5.2
	(c)	5.1(b)
	(d)	5.1(c)
	(e)	4.14
Section	316(a)(last sentence)	1.1
	(a)(1)(A)	4.12
	(a)(1)(B)	4.13
	(a)(2)	N/A
	(b)	4.8
	(c)	1.4(e)
Section	317(a)(1)	4.3
	(a)(2)	4.4
	(b)	3.2
Section	318(a)	1.13

*	This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture.
**	N/A means Not Applicable

INDENTURE, dated as of December 19, 2006, among Acquicor Technology Inc., a corporation duly organized and existing under the laws of the State of Delaware, having its principal office at 4910 Birch St., Suite 102, Newport Beach, CA 92660 (herein called the “Company”), the Guarantors (as defined below) and U.S. Bank National Association, as Trustee hereunder (herein called the “Trustee”).

RECITALS OF THE COMPANY

The Company has duly authorized the creation of an issue of its 8% Convertible Senior Notes due 2011 (herein called the “Securities”), of substantially the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture.

All things necessary to make the Securities, when the Securities are executed by the Company and authenticated and delivered hereunder, the valid obligations of the Company and to make this Indenture a valid agreement of the Company, in accordance with their and its terms, have been done. Further, all things necessary to duly authorize the issuance of shares of common stock of the Company issuable upon the conversion of the Securities, and to duly reserve for issuance the number of shares of Common Stock issuable upon such conversion, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:

ARTICLE 1.

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

SECTION 1.1.Definitions.

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(a)the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the singular;

(b)all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States; and

(c)the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

“Act,” when used with respect to any Holder of a Security, has the meaning specified in Section 1.4(a).

“Acquisition” means the acquisition of Jazz Semiconductor, Inc. pursuant to the Merger Agreement.

“Additional Interest” means the obligation to pay additional interest provided for in Section 7 of the Registration Rights Agreement.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Agent Members” means a member of, or a participant in, the Depositary.

“Aggregate Current Market Price” has the meaning specified in Section 10.5(e).

“American Depositary Shares” means U.S. Dollar denominated forms of equity ownership held in deposit in a custodian bank and evidenced by physical certificates of ownership (“American Depositary Receipts”) issued by a U.S. bank.

“Applicable Conversion Rate” means, at any given time, the Conversion Rate then in effect, rounded to the nearest 1/100th of a share.

“Applicable Conversion Reference Period” means the twenty (20) consecutive Trading Days beginning on the third Trading Day following the Conversion Date.

“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, to the extent applicable to such transaction and as in effect from time to time.

“Authenticating Agent” means any Person authorized pursuant to Section 5.12 to act on behalf of the Trustee to authenticate Securities.

“Authorized Share Increase” means the approval by the Company’s stockholders of an amendment to the Company’s certificate of incorporation to increase the number of authorized shares of Common Stock as described in the Offering Memorandum, dated December 12, 2006, setting forth information regarding the offering of the Securities.

“Board of Directors” means either the board of directors of the Company or any duly authorized committee of that board.

“Board Resolution” means a resolution duly adopted by the Board of Directors, a copy of which, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, shall have been delivered to the Trustee.

-2-

“Business Day,” when used with respect to any Place of Payment, Place of Conversion or any other place, as the case may be, means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in such Place of Payment, Place of Conversion or other place, as the case may be, are authorized or obligated by law or executive order to close; provided, however, that a day on which banking institutions in New York, New York are authorized or obligated by law or executive order to close shall not be a Business Day for purposes of Section 10.6.

“Cash Equivalents” means (1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than six months from the date of acquisition, (2) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case with any domestic commercial bank having capital and surplus in excess of $500 million and a Thompson Bank Watch Rating of “B” or better, (3) repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in clause (1) above entered into with any financial institution meeting the qualifications specified in clause (2) above, (4) commercial paper having the highest rating obtainable from Moody’s Investors Service, Inc. or Standard & Poor’s Ratings Services and in each case maturing within six months after the date of acquisition and (5) money market funds at least ninety-five percent (95%) of the assets of which constitute Cash Equivalents of the kinds described in clauses (1)-(4) of this definition.

“Closing Price” means, with respect to the Common Stock on any day, the closing sale price regular way on such day or, in the case where no such sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in each case on the American Stock Exchange, The Nasdaq Stock Market or New York Stock Exchange, as applicable, or, if the Common Stock is not listed or admitted to trading on such exchange, on the principal national security exchange or quotation system on which such security is quoted or listed or admitted to trading, or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices of the Common Stock on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or if not so available, in such manner as furnished by any American Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or if no bid or asked price is available a price determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution.

“Code” has the meaning specified in Section 2.1.

“Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

“Common Equity” of any Person means capital stock or other ownership interests of such Person that is generally entitled to (1) vote in the election of directors of such Person or (2) if such Person is not a Corporation, vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.

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“Common Stock” means the shares of the class designated as common stock of the Company at the date of this Indenture or as such stock may be reconstituted from time to time. Subject to the provisions of Section 10.12, shares issuable on conversion or repurchase of Securities shall include only shares of Common Stock or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided, however, that if at any time there shall be more than one such resulting class, the shares so issuable on conversion of Securities shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the proportion that the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

“Company Notice” has the meaning specified in Section 12.2(a).

“Company Request” or “Company Order” means a written request or order signed in the name of the Company by an Officer of the Company, and delivered to the Trustee.

“Completion Date” has the meaning specified in Section 10.5(f).

“Constituent Person” has the meaning specified in Section 10.12.

“Conversion Agent” means any Person authorized by the Company to convert Securities in accordance with Article X. The Company has initially appointed the Trustee as its Conversion Agent.

“Conversion Date” means the date on which both the Securities and the duly signed and completed notice have been delivered to the Trustee.

“Conversion Notice” has the meaning specified in Section 10.3.

“Conversion Price” means an amount equal to U.S. $1,000 divided by the Conversion Rate.

“Conversion Rate” has the meaning specified in Section 10.1.

“Conversion Shares” has the meaning specified in Section 10.5(m).

“Conversion Value” shall equal the product of (1) the Applicable Conversion Rate and (2) the average of the Closing Prices of the Common Stock for each of the twenty (20) consecutive Trading Days in the Applicable Conversion Reference Period.

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“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered (which at the date of this Indenture is located at 60 Livingston Avenue, EP-MN-WS3C, St. Paul, MN 55107-2292, Attn: Corporate Trust Services (Acquicor Technology Inc. - 8% Convertible Senior Notes due 2011)).

“Corporation” means a corporation, company, association, joint-stock company or business trust.

“Daily Trading Share Amount” for each day in the Applicable Conversion Reference Period shall equal the greater of:

(1)zero; or

(2)a number of shares determined by the following formula:

(Closing Price X Applicable Conversion Rate) - $1,000

20 X Closing Price

“Defaulted Interest” has the meaning specified in Section 2.8.

“Depositary” means, with respect to any Registered Securities, a clearing agency that is registered as such under the Exchange Act and is designated by the Company to act as Depositary for such Registered Securities (or any successor securities clearing agency so registered).

“Distribution Date” has the meaning specified in Section 10.5(m).

“Dollar” or “U.S.$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts.

“Domestic Subsidiary” means any Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia.

“DTC” means The Depository Trust Company, a New York corporation.

“Escrow Agreement” means that certain Escrow Agreement, dated the date hereof, by and among the Company, the Trustee and U.S. Bank National Association, as escrow agent, as such agreement may be amended, supplemented or modified from time to time in accordance with its terms.

“Escrow Interest” means the interest income accrued and earned on the escrow account created pursuant to the Escrow Agreement through, but not including, the Special Mandatory Redemption Date.

“Event of Default” has the meaning specified in Section 4.1.

“Exchange Act” means the United States Securities Exchange Act of 1934 (or any successor statute), as amended from time to time.

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“Final Maturity” means December 31, 2011.

“FundamentalChange” means the occurrence at any time, after the original issuance of the Securities, of any of the following events:

(1)the Common Stock is neither listed for trading on any U.S. national securities exchange or the London Stock Exchange, nor approved for listing on The Nasdaq Global Market (at such time that The Nasdaq Global Market is not a U.S. national securities exchange) or any successor to The Nasdaq Global Market;

(2)any sale, lease or other transfer (in one transaction or a series of transactions) of all or substantially all of the consolidated assets of the Company and its Subsidiaries to any Person (other than a Subsidiary); provided, however, that a transaction where the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of such Person immediately after such transaction shall not be a Fundamental Change;

(3)consummation of any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer (in one transaction or a series of transactions) of all or substantially all of the Company’s consolidated assets (considered together with its Subsidiaries) to any Person (other than one of its Subsidiaries); provided, however, that a transaction where the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving Corporation or transferee immediately after such event shall not be a Fundamental Change;

(4)a “person” or “group” (within the meaning of Section 13(d) of the Exchange Act (other than the Company, its Subsidiaries or the Company’s employee benefit plans)) files a Schedule 13D or a Schedule TO, disclosing that it has become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common Equity; or

(5)the Company’s stockholders approve any plan or proposal for the Company’s liquidation or dissolution; provided, however, that a liquidation or dissolution of the Company that is part of a transaction described in clause (2) above that does not constitute a Fundamental Change under the proviso contained in that clause shall not constitute a Fundamental Change;

further provided, that a Fundamental Change will not be deemed to have occurred if 90% of the consideration for the Common Stock (excluding cash payments in lieu of fractional shares and cash payments made in respect of dissenters’ appraisal rights, if any) in the transaction or transactions constituting the Fundamental Change consists of another Person’s Common Equity or American Depositary Shares representing shares of another Person’s Common Equity traded on a U.S. national securities exchange or quoted on the Nasdaq Global Market (at such time that the Nasdaq Global Market is not a U.S. national securities exchange), or which will be so traded or quoted when issued or exchanged in connection with the Fundamental Change, and as a result of such transaction or transactions the Securities become convertible solely into such common stock or American Depositary Shares.

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For the purposes of this definition, “beneficial owner,” has the meaning attributed to it in Rule 13d-3 under the Exchange Act; and a “group” include any syndicate or group that would be deemed to be a person under Section 13(d)(3) of the Exchange Act.

“Fundamental Change Effective Date” has the meaning specified in Article IX.

“GAAP” means generally accepted accounting principles of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the date of this Indenture.

“Global Security” means a Registered Security that is registered in the Security Register in the name of a Depositary or a nominee thereof.

“Guarantors” means the Domestic Subsidiaries and their respective successors and assigns.

“Holder” means the Person in whose name the Security is registered in the Security Register.

“Indebtedness” means, with respect to any Person, the principal of (and premium, if any) and interest (including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding) on, and rent payable on or in connection with, and all fees, costs, claims, expenses and other amounts payable in connection with, the following, whether absolute or contingent, secured or unsecured, due or to become due, outstanding on the date of this Indenture or thereafter created, incurred or assumed: (1) all of such Person’s indebtedness evidenced by a credit or loan agreement, note, bond, debenture, or other similar instrument whether or not the recourse of the lender is to all of the Company’s assets or only to a portion, (2) all of such Person’s indebtedness, obligations and other liabilities, contingent or otherwise, for borrowed money, including, without limitation, overdrafts, foreign exchange contracts, currency exchange agreements, interest rate protection agreements and any loans or advances from banks, whether or not evidenced by notes or similar instruments, or bonds, debentures, notes or similar instruments, whether or not the recourse of the lender is to all of such Person’s assets or only to a portion thereof, (3) all of such Person’s obligations as lessee under leases required to be capitalized on the balance sheet of the lessee under GAAP, (4) all of such Person’s obligations and other liabilities, contingent or otherwise, under any lease or related document, including a purchase agreement, in connection with the lease of real property or improvements, or any personal property included as part of any such lease, which provides that such Person is contractually obligated to purchase or cause a third party to purchase the leased property and thereby guarantee a residual value of leased property to the lessor and all of such Person’s obligations under such lease or related document to purchase or cause a third party to purchase the leased property, whether or not such lease transaction is characterized as an operating lease or capitalized lease in accordance with generally accepted accounting principles, (5) all of such Person’s obligations under interest rate and currency swaps, caps, floors, collars, hedge agreements, forward contracts, or similar agreements or arrangements, (6) all of such Person’s obligations with respect to letters of credit, bank guarantees, bankers’ acceptances and similar facilities, including related reimbursement obligations, (7) all of such Person’s obligations issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable and accrued liabilities arising in the ordinary course of business), (8) all of such Person’s obligations of the type referred to in clauses (1) through (7) above of another Person and all dividends of another Person, the payment of which, in either case, such Person has assumed or guaranteed or for which such Person is responsible or liable, directly or indirectly, jointly or severally, as obligor, guarantor or otherwise or which is secured by a lien on such Person’s property and (9) renewals, extensions, modifications, replacements, restatements and refundings of, or any indebtedness or obligation issued in exchange for, any such indebtedness or obligation described in clauses (1) through (8) of this definition; provided, however, that Indebtedness shall not include accounts payable or other accrued liabilities or obligations incurred in the ordinary course of business in connection with the obtaining of materials or services and any indebtedness or obligation that such Person may owe to any direct or indirect Subsidiary.

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“Indenture” means this Indenture as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this Indenture and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Indenture and any such supplemental indenture, respectively.

“Interest Payment Date” means the Stated Maturity of an installment of interest on the Securities.

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind with respect to such asset.

“Make Whole Premium” has the meaning specified in Article IX.

“Maturity,” when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity, Final Maturity or by declaration of acceleration, call for redemption, conversion, exercise of the repurchase right set forth in Article XII or otherwise.

“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of September 26, 2006, by and among the Company, Joy Acquisition Corp., Jazz Semiconductor, Inc. and TC Group L.L.C., as the Stockholders’ Representative.

“Non-electing Share” has the meaning specified in Section 10.12.

“Notice of Default” has the meaning specified in Section 4.1.

“Officer” means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.

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“Officer’s Certificate” means a certificate signed by any Officer of the Company, and delivered to the Trustee.

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or employed by the Company and who shall be acceptable to the Trustee.

“Other Interest” means Additional Interest and Special Interest.

“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

(1)Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

(2)Securities for the payment of which money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (if other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; and

(3)Securities that have been paid pursuant to Section 2.7 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities are present at a meeting of Holders of Securities for quorum purposes or have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such determination as to the presence of a quorum or upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.

“Paying Agent” means any Person authorized by the Company to pay the principal of or interest on any Securities on behalf of the Company and, except as otherwise specifically set forth herein, such term shall include the Company if it shall act as its own Paying Agent. The Company has initially appointed the Trustee as its Paying Agent.

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“Person” means a natural person, Corporation, limited liability company, partnership, joint venture, trust, estate, unincorporated organization or government or any agency or political subdivision thereof.

“Place of Conversion” has the meaning specified in Section 2.2.

“Place of Payment” has the meaning specified in Section 2.2.

“Pledge and Security Agreement” means the Pledge and Security Agreement dated as of the date hereof by and between the Company and U.S. Bank National Association, as collateral agent, as such agreement may be amended, modified or supplemented from time to time in accordance with its terms.

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.7 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

“Purchase Agreement” means the Purchase Agreement, dated as of December 18, 2006 by and among the Company, CRT Capital Group LLC and Needham & Company, LLC.

“Purchasers” has the meaning specified in Section 14.9.

“Record Date” means any Regular Record Date or Special Record Date.

“Record Date Period” means the period from the close of business of any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date.

“Redemption” has the meaning specified in Section 14.1.

“Redemption Date” has the meaning specified in Section 14.1.

“Redemption Notice Date” has the meaning specified in Section 14.5.

“Redemption Price” means, beginning on December 31, 2009 through December 30, 2010, 102% of the principal amount of the Securities to be redeemed on the Redemption Date, and, beginning on December 31, 2010 and thereafter, 100% of the principal amount of the Securities to be redeemed on the Redemption Date.

“Registered Common Stock” means Common Stock that does not require registration or approval under any federal securities law or, if applicable, the securities laws of any state where a holder is located, before such shares are freely transferable without being subject to transfer restrictions under the Securities Act or for which such registration is completed pursuant to a Shelf Registration Statement or otherwise.

“Registered Securities” has the meaning specified in Section 2.1.

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“Registrable Securities” has the meaning specified in the Registration Rights Agreement.

“Registration Rights Agreement” means the Registration Rights Agreement dated the date hereof, by and among the Company and CRT Capital Group LLC and Needham & Company LLC.

“Regular Record Date” for interest payable in respect of any Registered Security on any Interest Payment Date means the June 15 and the December 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.

“Repurchase Date” has the meaning specified in Section 12.1.

“Repurchase Price” has the meaning specified in Section 12.1.

“Residual Value Shares” has the meaning specified in Section 10.2.

“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Office, including without limitation any vice president, assistant vice president, assistant treasurer, corporate trust officer or other employee of the Trustee customarily performing functions similar to those performed by any of the above designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge and familiarity with the particular subject.

“Restricted Global Security” has the meaning specified in Section 2.1.

“Restricted Securities Legend” means, collectively, the legends substantially in the forms of the legends required in the form of Security attached hereto as Exhibit A to be placed upon each Security.

“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.

“Rule 144A Information” means such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).

“Secured Indebtedness” means Indebtedness secured by a Lien.

“Securities” has the meaning ascribed to it in the first paragraph under the caption “Recitals of the Company.”

“Securities Act” means the United States Securities Act of 1933 (or any successor statute), as amended from time to time.

“Security Register” and “Security Registrar” have the respective meanings specified in Section 2.6.

“Shelf Registration Statement” has the meaning specified in the Registration Rights Agreement.

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“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date hereof.

“Stock Price” means the price paid, or deemed to be paid, per share of the Company’s Common Stock in connection with a Fundamental Change, as determined pursuant to Article IX.

“Special Interest” has the meaning specified in Section 4.2.

“Special Mandatory Redemption” has the meaning specified in Section 14.10.

“Special Mandatory Redemption Event” has the meaning specified in Section 14.10.

“Special Mandatory Redemption Date” has the meaning specified in Section 14.10.

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Company pursuant to Section 2.8.

“Stated Maturity,” when used with respect to any Security or any installment of interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of interest is due and payable.

“Subsidiary” means a Person more than fifty percent (50%) of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock or other similar interests in the Person that ordinarily has or have voting power for the election of directors or Persons performing similar functions, whether at all times or only so long as no senior class of stock or other interests has or have such voting power by reason of any contingency.

“Subsidiary Guarantee” means the guarantee by each Guarantor of the Company’s payment obligations under this Indenture and on the Securities, executed pursuant to the provisions of this Indenture.

“Successor Security” of any particular Security means every Security issued after, and evidencing all or a portion of the same debt as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.7 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

“Trading Day” means: (1) if the Common Stock is listed or admitted for trading on any national securities exchange, days on which such national securities exchange is open for business; (2) if the Common Stock is quoted on a system of automated dissemination of quotations of securities prices, days on which trades may be effected through such system; or (3) if the Common Stock is not listed or admitted for trading on any national securities exchange or quoted on a system of automated dissemination of quotation of securities prices, days on which the Common Stock is traded regular way in the over-the-counter market and for which a closing bid and a closing asked price for the Common Stock are available.

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“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

“United States” means the United States of America (including the several States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (its “possessions” including Puerto Rico, the United States Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).

“Vice President” when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

“Volume Weighted Average Price” means, with respect to the Common Stock of the Company, for any day the volume weighted average price per share of Common Stock as displayed on Bloomberg on the American Stock Exchange (or, if the Company’s Common Stock is not then listed on the American Stock Exchange, on such other exchange on which the Common Stock is listed or if not so listed on any automated quotation system on which quotes for the Common Stock are available) from 9:30 a.m. to 4:00 p.m. (New York City time) on that day (or if such volume weighted average price is not available, the market value of one share on such day as the Company determines in good faith using a volume weighted method).

SECTION 1.2.Compliance Certificates and Opinions.

Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and, if required by this Indenture or the Trust Indenture Act, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(a)a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(b)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

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(c)a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(d)a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with; provided, however, with respect to matters of fact, an Opinion of Counsel may rely on an Officer’s Certificate or certificates of public officials.

SECTION 1.3.Form of Documents Delivered to the Trustee.

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which such certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or any other Person stating that the information with respect to such factual matters is in the possession of the Company or such other Person, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

SECTION 1.4.Acts of Holders of Securities.

(a)Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders of Securities may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent or proxy duly appointed in writing by such Holders. Such action shall become effective when such instrument or instruments is delivered to the Trustee and, where it is hereby expressly required, to the Company. The Trustee shall promptly deliver to the Company copies of all such instruments delivered to the Trustee. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders of Securities signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent or proxy, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 5.1) conclusive in favor of the Trustee and the Company if made in the manner provided in this Section 1.4.

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(b)The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.

(c)The principal amount and serial number of any Registered Security held by any Person, and the date of his holding the same, shall be proved by the Security Register.

(d)The fact and date of execution of any such instrument or writing and the authority of the Person executing the same may also be proved in any other manner that the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section 1.4.

(e)The Company may set any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted by this Indenture to be given or taken by Holders. Promptly and in any case not later than ten (10) days after setting a record date, the Company shall notify the Trustee and the Holders of such record date. If not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the thirtieth (30th) day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 13.1) prior to such first solicitation or vote, as the case may be. With regard to any record date, the Holders on such date (or their duly appointed agents or proxies), and only such Persons, shall be entitled to give or take, or vote on, the relevant action, whether or not such Holders remain Holders after such record date. Notwithstanding the foregoing, the Company shall not set a record date for, and the provisions of this paragraph shall not apply with respect to, any notice, declaration or direction referred to in the next paragraph.

Upon receipt by the Trustee from any Holder of (1) any Notice of Default or breach referred to in Section 4.1(d), if such default or breach has occurred and is continuing and the Trustee shall not have given such a notice to the Company, (2) any declaration of acceleration referred to in Section 4.2, if an Event of Default has occurred and is continuing and the Trustee shall not have given such a declaration to the Company, or (3) any direction referred to in Section 4.12, if the Trustee shall not have taken the action specified in such direction, then, with respect to clauses (2) and (3), a record date shall automatically and without any action by the Company or the Trustee be set for determining the Holders entitled to join in such declaration or direction, which record date shall be the close of business on the tenth (10th) day (or, if such day is not a Business Day, the next succeeding Business Day) following the day on which the Trustee receives such declaration or direction, and, with respect to clause (1), the Trustee may set any day as a record date for the purpose of determining the Holders entitled to join in such Notice of Default. Promptly after such receipt by the Trustee of any such declaration or direction referred to in clause (2) or (3), and promptly after setting any record date with respect to clause (1), and as soon as practicable thereafter, the Trustee shall notify the Company and the Holders of any such record date so fixed. The Holders on such record date (or their duly appointed agents or proxies), and only such Persons, shall be entitled to join in such notice, declaration or direction, whether or not such Holders remain Holders after such record date; provided, however, that, unless such notice, declaration or direction shall have become effective by virtue of Holders of the requisite principal amount of Securities on such record date (or their duly appointed agents or proxies) having joined therein on or prior to the ninetieth (90th) day after such record date, such notice, declaration or direction shall automatically and without any action by any Person be cancelled and of no further effect. Nothing in this paragraph shall be construed to prevent a Holder (or a duly appointed agent or proxy thereof) from giving, before or after the expiration of such 90-day period, a notice, declaration or direction contrary to or different from, or, after the expiration of such period, identical to, the notice, declaration or direction to which such record date relates, in which event a new record date in respect thereof shall be set pursuant to this paragraph. In addition, nothing in this paragraph shall be construed to render ineffective any notice, declaration or direction of the type referred to in this paragraph given at any time to the Trustee and the Company by Holders (or their duly appointed agents or proxies) of the requisite principal amount of Securities on the date such notice, declaration or direction is so given.

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(f)Except as provided in Sections 4.2 and 4.13, any request, demand, authorization, direction, notice, consent, election, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

SECTION 1.5.Notices, Etc., to Trustee, Company and Guarantors.

Any request, demand, authorization, direction, notice, consent, election, waiver or other Act of Holders of Securities or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

(a)the Trustee by any Holder of Securities or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee and received at the Corporate Trust Office, Attention: Corporate Trust Services (Acquicor Technology Inc. - 8% Convertible Senior Notes Due 2011), and shall be deemed given when received; or

(b)the Company by the Trustee or by any Holder of Securities shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing, mailed, first-class postage prepaid, or telecopied and confirmed by mail, first-class postage prepaid, or delivered by hand or overnight courier, addressed to the Company and for any Guarantors at 4910 Birch St., Suite 102, Newport Beach, CA 92660, Attention: General Counsel (telecopy no.: (949) 266-9020), or at any other address previously furnished in writing to the Trustee by the Company, and shall be deemed given when received.

Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

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SECTION 1.6.Notice to Holders of Securities; Waiver.

Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of Securities of any event, such notice shall be sufficiently given to Holders if in writing and mailed, first-class postage prepaid, to each Holder of a Security affected by such event, at the address of such Holder as it appears in the Security Register, not earlier than the earliest date and not later than the latest date prescribed for the giving of such notice.

Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Holders of Registered Securities as shall be made with the approval of the Trustee, which approval shall not be unreasonably withheld or delayed, shall constitute a sufficient notification to such Holders for every purpose hereunder.

Such notice shall be deemed to have been given when such notice is mailed.

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

SECTION 1.7.Effect of Headings and Table of Contents.

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 1.8.Successors and Assigns.

All covenants and agreements in this Indenture by the Company and by the Trustee shall bind its successors and assigns, whether so expressed or not.

SECTION 1.9.Separability Clause.

In case any provision in this Indenture, the Securities and the Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 1.10.Benefits of Indenture.

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors and assigns hereunder and the Holders of Securities, any benefit or legal or equitable right, remedy or claim under this Indenture.

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SECTION 1.11.Governing Law.

THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA, INCLUDING, WITHOUT LIMITATION, THE NEW YORK GENERAL OBLIGATIONS LAW §5-1401.

SECTION 1.12.Legal Holidays.

In any case where any Interest Payment Date, Repurchase Date, Redemption Date or Stated Maturity of any Security or the last day on which a Holder of a Security has a right to convert his Security shall not be a Business Day at a Place of Payment or Place of Conversion, as the case may be, then (notwithstanding any other provision of this Indenture or of the Securities) payment of principal of, premium, if any, or interest on, or the payment of the Repurchase Price or Redemption Price (whether the same is payable in cash or in shares of Common Stock, the Successor Common Stock or a combination thereof or otherwise) with respect to, or delivery for conversion of, such Security need not be made at such Place of Payment or Place of Conversion, as the case may be, on or by such day, but may be made on or by the next succeeding Business Day at such Place of Payment or Place of Conversion, as the case may be, with the same force and effect as if made on the Interest Payment Date, Redemption Date or Repurchase Date, or at the Stated Maturity or by such last day for conversion; provided, however, that in the case that payment is made on such succeeding Business Day, no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repurchase Date, Stated Maturity or last day for conversion, as the case may be.

SECTION 1.13.Conflict with Trust Indenture Act.

If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. Until such time as this Indenture shall be qualified under the Trust Indenture Act, this Indenture, the Company and the Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act to the same extent as would be the case if this Indenture were so qualified on the date hereof, except that prior to the filing of the Shelf Registration Statement pursuant to the Registration Rights Agreement, the Company will not comply with Section 314(d) of the Trust Indenture Act.

SECTION 1.14.Counterparts. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument

SECTION 1.15.No Recourse.

An incorporator, director, officer, Affiliate or stockholder of the Company or a guarantor, solely by reason of this status, shall not have any liability for any obligations of the Company or any Guarantor under the Securities, this Indenture, the Subsidiary Guarantees or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. This waiver and release does not extend to any claim arising under any federal or state securities laws.

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ARTICLE 2.

THE SECURITIES

SECTION 2.1.Form Generally.

The Securities and the Trustee’s certificate of authentication shall be in substantially the form set forth in Exhibit A hereto, which Exhibit is incorporated into this Indenture, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or the Internal Revenue Code of l986, as amended, and regulations thereunder (the “Code”), or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. All Securities shall be issued in registered form, as opposed to bearer form, and shall sometimes be referred to as the “Registered Securities.”

The Securities shall be printed, lithographed, typewritten or engraved or produced by any combination of these methods on steel engraved borders, if so required by any securities exchange upon which the Securities may be listed, or may be produced in any other manner permitted by the rules of any such securities exchange, or, if the Securities are not listed on a securities exchange, in any other manner approved by the Company, all as determined by the officers executing such Securities, as evidenced by their execution thereof.

Upon their original issuance, Securities shall be issued in the form of one or more Global Securities without interest coupons and shall be registered in the name of DTC, as Depositary, or its nominee and deposited with the Trustee, as custodian for DTC, for credit by DTC to the respective accounts of beneficial owners of the Securities represented thereby (or such other accounts as they may direct). Such Global Security, together with its Successor Securities that are Global Securities, are collectively herein called the “Restricted Global Security .”

SECTION 2.2.Title and Terms.

The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is limited to U.S.$145,000,000 (or such greater amount necessary to reflect exercise of the Initial Purchasers’ over-allotment option in compliance with the Purchase Agreement, but not in excess of U.S.$21,750,000), except for Securities authenticated and delivered in exchange for, or in lieu of, other Securities pursuant to Sections 2.5, 2.6, 2.7, 7.5, 10.2, 12.2(e) or 14.8.

The Securities shall be known and designated as the “8% Convertible Senior Notes due 2011” of the Company. Their Stated Maturity shall be December 31, 2011 and they shall bear interest on their principal amount from the date of issuance, payable semiannually in arrears on June 30 and December 31 in each year, commencing June 30, 2007, at the rate of 8% per annum until the principal thereof is due and at the rate then in effect on any overdue principal and, to the extent permitted by law, on any overdue interest; provided, however, that (i) payments shall only be made on Business Days as provided in Section 1.12 and (ii) upon the occurrence of a Special Mandatory Redemption, Escrow Interest shall be paid in lieu of interest as described above.

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The principal of, premium, if any, and interest on the Securities shall be payable as provided in the form of Securities attached hereto as Exhibit A, and the Redemption Price or the Repurchase Price, as applicable, shall be payable at such places as are identified in the Company Notice given pursuant to Section 12.2 (any city in which any Paying Agent is located being herein called a “Place of Payment”).

Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or interest on, or in respect of, the Securities, such mention shall be deemed to include mention of the payment of Special Interest provided for under Section 4.2 and Additional Interest pursuant to the Registration Rights Agreement to the extent that, in such context, Special Interest or Additional Interest is, were or would be payable in respect thereof pursuant to the provisions of Section 4.2 or the Registration Rights Agreement and express mention of the payment of Special Interest or Additional Interest in any provisions hereof shall not be construed as excluding Special Interest or Additional Interest in those provisions hereof where such express mention is not made.

The Registrable Securities are entitled to the benefits of a Registration Rights Agreement as provided by the form of Securities attached hereto as Exhibit A.

The Securities shall be redeemable at the option of the Company, as provided in Article XIV and the form of Securities attached hereto as Exhibit A. The Securities shall be mandatorily redeemable upon the occurrence of a Special Mandatory Redemption Event as provided in Section 14.10.

The Securities shall be convertible as provided in Article X (any city in which any Conversion Agent is located being herein called a “Place of Conversion”).

The Securities shall be subject to repurchase by the Company at the option of the Holders as provided in Article XII.

Until the completion of the Acquisition or a Special Mandatory Redemption, the Securities shall be secured as provided in the Pledge and Security Agreement.

SECTION 2.3.Denominations.

The Securities shall be issuable only in registered form, without interest coupons, in denominations of U.S.$1,000 and integral multiples thereof.

SECTION 2.4.Execution, Authentication, Delivery and Dating.

The Securities shall be executed on behalf of the Company by any Officer. Any such signature may be manual or facsimile.

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Securities bearing the manual or facsimile signature of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee or to its order for authentication, together with a Company Order for the authentication and delivery of such Securities, which Company Order shall set forth the number of separate Securities certificates, the principal amount of each of the Securities to be authenticated, the date on which the original issue of Securities is to be authenticated, the registered holder of each of the said Securities, and delivery instructions, and the Trustee in accordance with such Company Order shall authenticate and make available for delivery such Securities as provided in this Indenture and not otherwise.

Each Security shall be dated the date of its authentication.

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.

SECTION 2.5.Global Securities.

Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated by the Company for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered as such under the Exchange Act or announces an intention permanently to cease business or does in fact do so or (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security.

If any Global Security is to be exchanged for other Securities or cancelled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Trustee, as Security Registrar, for exchange or cancellation, as provided in this Article II. If any Global Security is to be exchanged for other Securities or cancelled in part, or if another Security is to be exchanged in whole or in part for a beneficial interest in any Global Security, in each case, as provided in Section 2.6, then either (A) such Global Security shall be so surrendered for exchange or cancellation, as provided in this Article II, or (B) the principal amount thereof shall be reduced or increased by an amount equal to the portion thereof to be so exchanged or cancelled or equal to the principal amount of such other Security to be so exchanged for a beneficial interest therein, as the case may be, by means of an appropriate adjustment made on the records of the Trustee, as Security Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records. Upon any such surrender or adjustment of a Global Security, the Trustee shall, subject to Section 2.6(c) and as otherwise provided in this Article II, authenticate and make available for delivery any Securities issuable in exchange for such Global Security (or any portion thereof) to or upon the order of, and registered in such names as may be directed by, the Depositary or its authorized representative. Upon the request of the Trustee in connection with the occurrence of any of the events specified in the preceding paragraph, the Company shall promptly make available to the Trustee a reasonable supply of Securities that are not in the form of Global Securities. The Trustee shall be entitled to rely upon any order, direction or request of the Depositary or its authorized representative which is given or made pursuant to this Article II.

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Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Article II or otherwise, shall be authenticated and delivered in the form of, and shall be, a registered Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof, in which case such Registered Security shall be authenticated and delivered in definitive, fully registered form, without interest coupons.

The Depositary or its nominee, as registered owner of a Global Security, shall be the Holder of such Global Security for all purposes under the Indenture and the Registered Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures. Accordingly, any such owner’s beneficial interest in a Global Security shall be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Agent Members, and such owners of beneficial interests in a Global Security shall not be considered the owners or holders thereof.

SECTION 2.6.Registration, Registration of Transfer and Exchange; Restrictions on Transfer.

(a)The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency of the Company designated pursuant to Section 8.2 being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Registered Securities and transfers and exchanges of Registered Securities as herein provided.

Upon surrender for registration of transfer of any Security at an office or agency of the Company designated pursuant to Section 8.2 for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

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At the option of the Holder, and subject to the other provisions of this Section 2.6, Securities may be exchanged for other Securities of any authorized denomination and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange, and subject to the other provisions of this Section 2.6, the Company shall execute, and the Trustee shall authenticate and make available for delivery, the Securities the Holder making the exchange is entitled to receive. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, subject to the other provisions of this Section 2.6, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

No service charge shall be made for any registration of transfer or exchange of Securities except as provided in Section 2.7, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 2.5, 7.5, 10.2, 12.2(e), or 14.8 (other than where the shares of Common Stock are to be issued or delivered in a name other than that of the Holder of the Security) not involving any transfer and other than any stamp and other duties, if any, that may be imposed in connection with any such transfer or exchange by the United States or any political subdivision thereof or therein, which shall be paid by the Company.

(b) All Securities shall bear the applicable Restricted Securities Legend subject to the following:

(1)subject to the following clauses of this Section 2.6(b), a Security or any portion thereof that is exchanged, upon transfer or otherwise, for a Global Security or any portion thereof shall bear the Restricted Securities Legend borne by such Global Security while represented thereby;

(2)subject to the following clauses of this Section 2.6(b), a new Security that is not a Global Security and is issued in exchange for another Security (including a Global Security), or any portion thereof, bearing a Restricted Securities Legend, upon transfer or otherwise, shall bear the Restricted Securities Legend borne by such other Security;

(3)any Securities that are sold or otherwise disposed of pursuant to an effective registration statement under the Securities Act (including a Shelf Registration Statement), together with their Successor Securities, shall not bear a Restricted Securities Legend; the Company shall inform the Trustee in writing of the effective date of any such registration statement registering the Securities under the Securities Act and shall notify the Trustee at any time when prospectuses may not be delivered with respect to Securities to be sold pursuant to such registration statement. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned registration statement;

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(4)at any time after the Securities may be freely transferred without registration under the Securities Act or without being subject to transfer restrictions pursuant to the Securities Act, a new Security that does not bear a Restricted Securities Legend (at the request of the Holder) may be issued in exchange for or in lieu of a Security (other than a Global Security) or any portion thereof that bears such a legend if the Trustee has received a certificate regarding the unrestricted nature of the Securities, satisfactory to the Trustee and duly executed by the Holder of such legended Security or his attorney duly authorized in writing, and after such date and receipt of such certificate, the Trustee shall authenticate and make available for delivery such a new Security in exchange for or in lieu of such other Security as provided in this Article II;

(5)a new Security that does not bear a Restricted Securities Legend may be issued in exchange for or in lieu of a Security (other than a Global Security) or any portion thereof that bears such a legend if, in the Company’s judgment, placing such a legend upon such new Security is not necessary to ensure compliance with the registration requirements of the Securities Act, and the Trustee, at the direction of the Company, shall authenticate and make available for delivery such a new Security as provided in this Article II ; and

(6)notwithstanding the foregoing provisions of this Section 2.6(b), a Successor Security of a Security that does not bear a particular form of Restricted Securities Legend shall not bear such form of legend unless the Company has reasonable cause to believe that such Successor Security is a “restricted security” within the meaning of Rule 144 under the Securities Act, in which case the Trustee, at the direction of the Company, shall authenticate and make available for delivery a new Security bearing a Restricted Securities Legend in exchange for such Successor Security as provided in this Article II.

(c)Neither the Trustee, the Paying Agent nor any of their agents shall (1) have any duty to monitor compliance with or with respect to any federal or state or other securities or tax laws or (2) have any duty to obtain documentation on any transfers or exchanges other than as specifically required hereunder.

SECTION 2.7.Mutilated, Destroyed, Lost or Stolen Securities.

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding.

If there be delivered to the Company and to the Trustee:

(a)evidence to their satisfaction of the destruction, loss or theft of any Security, and

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(b)such security or indemnity as may be required by either or both of the Company or the Trustee to save each of them and any agent of either of them harmless from any loss or liability which any of them may suffer if a security is replaced and subsequently presented or claimed for payment,

then, in the absence of actual notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding.

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion, but subject to any conversion rights, may, instead of issuing a new Security, pay such Security, upon satisfaction of the conditions set forth in the preceding paragraph.

Upon the issuance of any new Security under this Section 2.7, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto (other than any stamp and other duties, if any, that may be imposed in connection therewith by the United States or any political subdivision thereof or therein, which shall be paid by the Company) and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

The provisions of this Section 2.7 are exclusive and shall preclude (to the extent lawful) all other rights and remedies of any Holder with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

SECTION 2.8.Payment of Interest; Interest Rights Preserved.

Subject to the last two paragraphs of this Section, interest or Other Interest on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid, in immediately available funds, to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.

Any interest or Other Interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (“Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:

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(a)The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security, the date of the proposed payment and the Special Record Date, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause. The Special Record Date for the payment of such Defaulted Interest shall be not more than fifteen (15) days and not less than ten (10) days prior to the date of the proposed payment and not less than fifteen (15) days after the receipt by the Trustee of the notice of the proposed payment. The Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at such Holder’s address as it appears in the Security Register, not less than ten (10) days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).

(b)The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

Subject to provisions of Section 2.6, the foregoing provisions of this Section 2.8 and the next two paragraphs, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.

Interest on any Security that is converted in accordance with Section 10.2 during a Record Date Period shall be payable in accordance with the provisions of Section 10.2.

Escrow Interest payable with respect to a Special Mandatory Redemption shall be paid as provided in Article XIV and the Escrow Agreement.

SECTION 2.9.Persons Deemed Owners.

Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 2.8) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

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SECTION 2.10.Cancellation.

All Securities surrendered for payment, repurchase, redemption, registration of transfer or exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered to the Trustee shall be cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 2.10. The Trustee shall dispose of all cancelled Securities in accordance with applicable law and its customary practices in effect from time to time.

SECTION 2.11.Computation of Interest.

Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.

SECTION 2.12.CUSIP Numbers.

The Company in issuing Securities may use “CUSIP” numbers (if then generally in use) in addition to serial numbers and the Trustee shall use such CUSIP numbers in addition to serial numbers in notices of repurchase as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such CUSIP numbers either as printed on the Securities or as contained in any notice of a repurchase and that reliance may be placed only on the serial or other identification numbers printed on the Securities, and any such notice shall not be affected by any defect in or omission of such CUSIP numbers. The Company shall promptly notify the Trustee in writing of any change in any such CUSIP number.

ARTICLE 3.

SATISFACTION AND DISCHARGE

SECTION 3.1.Satisfaction and Discharge of Indenture.

This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of conversion, or registration of transfer or exchange, or replacement of Securities herein expressly provided for and the Company’s obligations to the Trustee pursuant to Section 5.7), and the Trustee, at the expense of the Company, shall execute proper instruments in form and substance reasonably satisfactory to the Trustee acknowledging satisfaction and discharge of this Indenture, when:

(a)either:

(1)all Securities theretofore authenticated and delivered (other than (A) Securities that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.7 and (B) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 8.3) have been delivered to the Trustee for cancellation; or

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(2)all such Securities not theretofore delivered to the Trustee or its agent for cancellation (other than Securities referred to in clauses (A) and (B) of clause (a)(1) above):

(i) have become due and payable; or

(ii) will have become due and payable at their Stated Maturity within one (1) year;

and the Company, in the case of clause (i) or (ii) above, has deposited or caused to be deposited with the Trustee as trust funds (immediately available to the Holders in the case of clause (i) above) an amount sufficient to pay and discharge the entire principal, premium, if any, and interest (including any Other Interest), if any, on such Securities not theretofore delivered to the Trustee for cancellation, to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity; and

(b)the Company has paid or caused to be paid all other sums payable hereunder by the Company; and

(c)the Company has delivered to the Trustee an Officer’s Certificate stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 5.7, the obligations of the Company to any Authenticating Agent under Section 5.12, the obligations of the Trustee under Section 3.2 and the last paragraph of Section 8.3, if money shall have been deposited with the Trustee pursuant to clause (a)(2) of this Section 3.1, the obligations of the Company and the Trustee and the rights of the Holders under Article IV and the obligations of the Company and the Trustee under Section 2.6 and Article X shall survive. Funds held in trust pursuant to this Section 3.1 are not subject to the provisions of Article XI.

SECTION 3.2.Application of Trust Money.

Subject to the provisions of the last paragraph of Section 8.3, all money deposited with the Trustee pursuant to Section 3.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Persons entitled thereto, of the principal, premium, if any, and interest (including Other Interest, if any) for whose payment such money has been deposited with the Trustee.

All moneys deposited with the Trustee pursuant to Section 3.1 (and held by it or any Paying Agent) for the payment of Securities subsequently converted shall be returned to the Company upon Company Request.

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ARTICLE 4.

REMEDIES

SECTION 4.1.Events of Default.

“Event of Default,” wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article XI or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

(a)default in the payment of the principal of or premium, if any, on any Security at its Maturity or in the event of a Special Mandatory Redemption; or

(b)default in the payment of any interest (including Special Interest) if any, upon any Security when it becomes due and payable, and continuance of such default for a period of thirty (30) days; or

(c)default in the Company’s obligation to deliver the settlement amount upon conversion of the Securities, together with cash in respect of any fractional shares, upon conversion of any Securities, and continuance of such default for a period of five (5) Business Days;

(d)failure by the Company to give the Company Notice in accordance with Section 12.2; or

(e)default in the performance, or breach, of any covenant of the Company or any Subsidiary in this Indenture (other than a covenant of default in the performance or breach of which is specifically dealt with elsewhere in this Section 4.1), or in the payment of Other Interest when due, and continuance of such default or breach for a period of sixty (60) days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Outstanding Securities, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

(f)(x) failure of the Company or any Subsidiary to make any payment, by the end of any applicable grace period, with respect to any indebtedness under any bond, debenture, note or similar instrument or other indebtedness (other than non-recourse obligations) for money borrowed, in an amount outstanding in excess of U.S.$5,000,000, whether such indebtedness now exists or shall hereafter be created, if such failure continues for a period of thirty (30) days or more, or (y) the acceleration of indebtedness in an amount in excess of $5.0 million because of a default with respect to such indebtedness and such indebtedness is not discharged or such acceleration is not cured, waived, rescinded or annulled within a period of thirty (30) days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Outstanding Securities a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or such acceleration to cease or be cured, waived, rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; provided that, if any such failure or acceleration referred to in (x) or (y) above shall cease or be cured, waived, rescinded or annulled, then the event of default by reason thereof shall be deemed not to have occurred; or

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(g)the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Company or any Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any Significant Subsidiary under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of sixty (60) consecutive days; or

(h)the commencement by the Company or any Significant Subsidiary of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or similar relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any Significant Subsidiary in furtherance of any such action.

SECTION 4.2.Acceleration of Maturity; Rescission and Annulment.

If an Event of Default (other than an Event of Default specified in Section 4.1(g) or 4.1(h) occurs and is continuing, then in every such case the Trustee or the Holders of not less than twenty-five percent (25%) in principal amount of the Outstanding Securities may declare the principal of all the Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration, such principal and all accrued and unpaid interest and Additional Interest thereon shall become immediately due and payable. If an Event of Default specified in Sections 4.1(g) or 4.1(h) with respect to the Company occurs, the principal of, and accrued and unpaid interest and Additional Interest on, all the Securities shall ipso facto become immediately due and payable without any declaration or other Act of the Holder or any act on the part of the Trustee.

Notwithstanding the foregoing, the sole remedy for an Event of Default specified in Section 4.1(e) relating to the failure by the Company to comply with its obligations under Section 8.6 and for any failure by the Company to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act, shall for the first 120 days after the occurrence and during the continuance of such an Event of Default consist exclusively of the right to receive special interest on the Securities at an annual rate equal to 0.50% of the principal amount of the Securities then Outstanding (the “Special Interest”). The Special Interest will be in addition to any Additional Interest that may accrue and be payable under the Registration Rights Agreement and will be payable in the same manner as Additional Interest accruing under the Registration Rights Agreement. The Special Interest will accrue on all Outstanding Securities from and including the date on which an Event of Default relating to a failure to comply with the obligations under Section 8.6 or the failure to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act first occurs to but not including the 120^th day thereafter (or such earlier date on which the Event of Default relating to such obligations shall have been cured or waived pursuant to Section 4.13). After the 120^th day (or earlier, if such Event of Default is cured or waived pursuant to Section 4.13 on or before such 120^th day), such Special Interest will cease to accrue and, if such Event of Default has not been cured or waived pursuant to Section 4.13 prior to such 120^th day, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities may declare the principal of and accrued and unpaid interest and Special Interest on all such Securities to be due and payable immediately. This paragraph shall not affect the rights of Holders in the event of the occurrence of any other Event of Default and shall have no effect on the rights of Holders under the Registration Rights Agreement; provided, however, that in no event will the rate of Special Interest accruing on the Securities pursuant to this Section 4.2 and the Registration Rights Agreement at any time exceed 0.50% per annum in the aggregate. If Special Interest is payable under this Section 4.2, the Company shall deliver to the Trustee a certificate to that effect stating (i) the amount of Special Interest that is payable and (ii) the date on which Special Interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no Special Interest is payable. If Special Interest has been paid by the Company directly to the Persons entitled to it the Company shall deliver to the Trustee a certificate setting forth the particulars of such payment.

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This Section 4.2 is subject to the conditions that if, at any time after a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article IV provided, the Holders of a majority in principal amount of the Outstanding Securities, by written notice to the Company and the Trustee, may rescind and annul such declaration of acceleration and its consequences if:

(a)the Company has paid or deposited with the Trustee a sum sufficient to pay:

(1)all overdue interest, if any, on all Securities;

(2)the principal of and premium, if any, on any Securities that have become due otherwise than by such declaration of acceleration and any interest thereon at the rate borne by the Securities;

(3)to the extent permitted by applicable law, interest upon overdue interest at the rate then in effect and any Additional Interest then due; and

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(4)all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel; and

(b)all Events of Default (other than the non-payment of the principal of, and any premium and interest on Securities that have become due solely by such declaration of acceleration) have been cured or waived as provided in Section 4.13.

No rescission or annulment referred to above shall affect any subsequent default or impair any right consequent thereon.

SECTION 4.3.Collection of Indebtedness and Suits for Enforcement by Trustee.

The Company covenants that if:

(a)default is made in the payment of any interest on any Security when it becomes due and payable and such default continues for a period of thirty (30) days; or

(b)default is made in the payment of the principal of or premium, if any, on any Security at the Maturity thereof;

the Company will upon demand by the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, premium, if any, and interest on any overdue principal, premium, if any, and, to the extent permitted by applicable law, on any overdue interest at the rate then in effect, and in addition thereto, such further amount as shall be sufficient to cover the reasonable costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel.

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated.

If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities by such appropriate judicial proceedings as the Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

SECTION 4.4.Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or the creditors of either, the Trustee (whether or not the principal of, and any interest on, the Securities shall then be due and payable as therein expressed or by declaration or otherwise and whether or not the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:

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(a)to file and prove a claim for the whole amount of principal, premium, if any, and interest owing and unpaid in respect of the Securities and take such other actions, including participating as a member, voting or otherwise, of any official committee of creditors appointed in such matter, and to file such other papers or documents, in each of the foregoing cases, as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel) and of the Holders of Securities allowed in such judicial proceeding; and

(b)to collect and receive any moneys or other property payable or deliverable on any such claim and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel and any other amounts due the Trustee under Section 5.7.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding; provided, however, that the Trustee may, on behalf of such Holders, vote for the election of a trustee in bankruptcy or similar official.

SECTION 4.5.Trustee May Enforce Claims without Possession of Securities.

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, be for the ratable benefit of the Holders of the Securities in respect of which judgment has been recovered.

SECTION 4.6.Application of Money Collected.

Subject to Article XI, any money collected by the Trustee pursuant to this Article IV shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, premium, if any, or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

FIRST: to the payment of all amounts due the Trustee under Section 5.7;

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SECOND: to the payment of the amounts then due and unpaid for principal of, premium, if any, or interest on, the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and

THIRD: any remaining amounts shall be repaid to the Company.

SECTION 4.7.Limitation on Suits.

No Holder of any Security shall have any right to institute any proceeding, judicial or the like, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

(a)such Holder has previously given written notice to the Trustee of a continuing Event of Default;

(b)the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(c)such Holder or Holders have furnished to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;

(d)the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity, has failed to institute any such proceeding; and

(e)the Trustee has not received any direction inconsistent with such written request from the Holders of a majority of the aggregate principal amount of the Outstanding Securities during the 60-day period referred to in (d) above;

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.

SECTION 4.8.Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert.

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of, premium, if any, and (subject to Section 2.8) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of repurchase or redemption, on the Repurchase Date or the Redemption Date, respectively), and to convert such Security in accordance with Article X, and to institute suit for the enforcement of any such payment and right to convert, and such rights shall not be impaired without the consent of such Holder.

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SECTION 4.9.Restoration of Rights and Remedies.

If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and such Holders shall continue as though no such proceeding had been instituted.

SECTION 4.10.Rights and Remedies Cumulative.

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 2.7, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

SECTION 4.11.Delay or Omission Not Waiver.

No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article IV or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or (subject to the limitations contained in this Indenture) by the Holders of Securities, as the case may be.

SECTION 4.12.Control by Holders of Securities.

The Holders of a majority in principal amount of the Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that:

(a)such direction shall not be in conflict with any rule of law or with this Indenture; and

(b)the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction; and

(c)the Trustee need not take any action which might expose it to personal liability, without the prior receipt of satisfactory indemnity (as determined by the Trustee in its sole discretion) from Holders requesting such action, or be unduly prejudicial to the Holders of Securities of such series not joining therein.

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SECTION 4.13.Waiver of Past Defaults.

The Holders, either (a) through the written consent of not less than a majority in principal amount of the Outstanding Securities or (b) by the adoption of a resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of at least a majority in principal amount of the Outstanding Securities represented at such meeting, may on behalf of the Holders of all the Securities waive any past default hereunder and its consequences, except a default (1) in the payment of the principal of, premium, if any, interest (including Other Interest) or the Repurchase Price on any Security or (2) in respect of a covenant or provision hereof that under Article VII cannot be modified or amended without the consent of the Holder of each Outstanding Security affected.

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

SECTION 4.14.Undertaking for Costs.

All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 4.14 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than ten percent (10%) in principal amount of the Outstanding Securities, or to any suit instituted by any Holder of any Security for the enforcement of the payment of the principal of, premium, if any, or interest on any Security on or after the respective Stated Maturity or Maturities expressed in such Security (or, in the case of repurchase, on or after the Repurchase Date) or for the enforcement of the right to convert any Security in accordance with Article X.

SECTION 4.15.Waiver of Stay, Usury or Extension Laws.

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, usury or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede by reason of such law the execution of any power herein granted to the Trustee but will suffer and permit the execution of every such power as though no such law had been enacted.

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ARTICLE 5.

THE TRUSTEE

SECTION 5.1.Certain Duties and Responsibilities.

(a)Except during the continuance of an Event of Default:

(1)the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee and permissive rights of the Trustee hereunder shall not constitute performance duties; and

(2)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture but not to verify the contents thereof.

(b)In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

(c)No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

(1)this paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section 5.1;

(2)the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

(3)the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and

(4)no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

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(d)Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 5.1.

SECTION 5.2.Notice of Defaults.

Within ninety (90) days after the occurrence of any default hereunder as to which a Responsible Officer of the Trustee has actually received written notice, the Trustee shall give to all Holders of Securities, in the manner provided in Section 1.6, notice of such default, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of, premium, if any, or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders. For the purpose of this Section 5.2, the term “default” means any event that is, or after notice or lapse of time or both would become, an Event of Default.

SECTION 5.3.Certain Rights of Trustee.

Subject to the provisions of Section 5.1:

(a)the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of Indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b)any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;

(c)whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may request and, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;

(d)the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(e)the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;

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(f)the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of Indebtedness or other paper or document, but the Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

(g)the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

(h)the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

(i)the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

(j)the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;

(k)the Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;

(l)the Trustee shall not be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss or profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

(m)the Trustee shall not be required to give any note, bond or surety in respect of the execution of the trusts and powers under this Indenture;

(n)the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authorities and governmental action; and

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(o)the Trustee shall have no duty to inquire as to the performance of the covenants in Article 8 hereof. In addition, Trustee shall not be deemed to have knowledge of any Event of Default or Default hereunder except (i) any Event of Default arising from a breach of Sections 8.1 or 8.5, or (ii) any Default or Event of Default of which the Trustee shall have received notification or obtained knowledge. In the absence of such actual knowledge or notice, the Trustee may conclusively assume that no Default has occurred or is continuing under this Indenture.

SECTION 5.4.Not Responsible for Recitals or Issuance of Securities.

The recitals contained herein and in the Securities (except the Trustee’s certificates of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture, of the Securities or of the Common Stock issuable upon the conversion of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

SECTION 5.5.May Hold Securities, Act as Trustee under Other Indentures.

The Trustee, any Authenticating Agent, any Paying Agent, any Conversion Agent or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Conversion Agent or such other agent.

The Trustee may become and act as trustee under other indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding in the same manner as if it were not Trustee hereunder.

SECTION 5.6.Money Held in Trust.

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder, except as otherwise agreed in writing with the Company.

SECTION 5.7.Compensation and Reimbursement.

The Company agrees:

(a)to pay to the Trustee from time to time such reasonable compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(b)to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

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(c)to indemnify the Trustee (and its directors, officers, employees and agents) for, and to hold it harmless against, any and all loss, damage, claim, liability or expense, including taxes (other than taxes based on the income of the Trustee), incurred without negligence, bad faith or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust, including the reasonable costs, expenses and reasonable attorneys’ fees of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.1(g) or Section 4.1(h) with respect to the Company, the expenses (including the reasonable charges of its counsel) and the compensation for the services are intended to constitute expenses of the administration under any applicable federal or state bankruptcy, insolvency or other similar law.

The Trustee shall have a lien prior to the Securities as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 5.7, except with respect to funds held in trust for the benefit of the Holders of particular Securities.

The provisions of this Section 5.7 shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee.

SECTION 5.8.Corporate Trustee Required; Eligibility.

There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, having a combined capital and surplus (or for such purposes, the combined capital and surplus of any parent holding company) of at least U.S.$25,000,000, subject to supervision or examination by federal or state authority, in good standing and having an established place of business or agency in the Borough of Manhattan, The City of New York. If such Corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 5.8, the combined capital and surplus of such Corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 5.8, it shall resign immediately in the manner and with the effect hereinafter specified in this Article V and a successor shall be appointed pursuant to Section 5.9.

SECTION 5.9.Resignation and Removal; Appointment of Successor.

(a)No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article V shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 5.10.

(b)The Trustee may resign at any time by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 5.10 shall not have been delivered to the Trustee within thirty (30) days after the giving of such notice of resignation, the resigning Trustee or the Company may petition any court of competent jurisdiction for the appointment of a successor Trustee.

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(c)The Trustee may be removed at any time by Act of the Holders of a majority in principal amount of the Outstanding Securities, delivered to the Trustee and the Company. If the instrument of acceptance by a successor Trustee required by Section 5.10 shall not have been delivered to the Trustee within thirty (30) days after the giving of such notice of removal, the removed Trustee or the Company may petition any court of competent jurisdiction for the appointment of a successor Trustee.

(d)If at any time:

(1)the Trustee shall cease to be eligible under Section 5.8 and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six (6) months; or

(2)the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

then, (i) in any such case the Company may remove the Trustee, or (ii) in the case of clause (d)(1) above only and subject to Section 4.14, any Holder of a Security who has been a bona fide Holder of a Security for at least six (6) months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

(e)If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company shall promptly appoint a successor Trustee and shall comply with the applicable requirements of this Section 5.9 and Section 5.10. If, within one (1) year after such resignation, removal or incapability, or occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 5.10, become the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner required by this Section 5.9 and Section 5.10, any Holder of a Security who has been a bona fide Holder of a Security for at least six (6) months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.

(f)The successor Trustee shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders of Securities in the manner provided in Section 1.6. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.

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SECTION 5.10.Acceptance of Appointment by Successor.

Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee. Such retiring Trustee shall, upon payment of its charges, promptly execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be eligible under this Article V.

SECTION 5.11.Merger, Conversion, Consolidation or Succession to Business.

Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of the trust created by this Indenture), shall be the successor of the Trustee hereunder (provided such Corporation shall be otherwise eligible under this Article V), without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

SECTION 5.12.Authenticating Agents.

The Trustee may, with the consent of the Company, appoint an Authenticating Agent or Agents acceptable to the Company with respect to the Securities, which shall be authorized to act on behalf of the Trustee to authenticate Securities issued upon exchange or substitution pursuant to this Indenture.

Securities authenticated by an Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder, and every reference in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be subject to acceptance by the Company and shall at all times be a Corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent and subject to supervision or examination by government or other fiscal authority. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 5.12, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 5.12.

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Any Corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent (provided such Corporation shall be otherwise eligible under this Section 5.12), without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 5.12, the Trustee may appoint a successor Authenticating Agent, which shall be subject to acceptance by the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 5.12.

The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 5.12.

If an Authenticating Agent is appointed with respect to the Securities pursuant to this Section 5.12, the Securities may have endorsed thereon, in addition to or in lieu of the Trustee’s certification of authentication, an alternative certificate of authentication in the following form:

This is one of the Securities referred to in the within-mentioned Indenture.

By: U.S. BANK NATIONAL ASSOCIATION,

By:___________, as Authenticating Agent

By______________________________

Authorized Signature

SECTION 5.13.Disqualification; Conflicting Interests.

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign as Trustee hereunder, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

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SECTION 5.14.Preferential Collection of Claims Against Company.

If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

ARTICLE 6.

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

SECTION 6.1.Company May Consolidate, Etc., Only on Certain Terms.

Without the consent or affirmative vote of the Holders of each Outstanding Security, the Company shall not consolidate with or merge into any other Person or convey, transfer, sell or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into it or convey, transfer, sell or lease such Person’s properties and assets substantially as an entirety to it, unless:

(a)the Company is the surviving person or the Person formed by such consolidation or into which the Company is merged, or the Person to which the Company’s properties and assets are conveyed, transferred, sold or leased, shall be (1) a corporation, limited liability company, partnership or trust organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia or (2) any member country of the European Union, or any other country if the organization and existence of such Person in such country would not impair the rights of Holders and such resulting, surviving or transferee Person has common stock, or American Depository Receipts representing such common stock, trading on a national securities exchange in the United States, and, in each case, if other than the Company, shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, premium, if any, Additional Interest, if any, and interest on all of the Securities as applicable, and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;

(b)immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and

(c)the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article VI and that all conditions precedent herein provided for relating to such transaction have been complied with, together with any documents required under Section 7.3.

For purposes of this Section, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which property and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. In no event will the consummation of the Acquisition be prohibited by this Section 6.1, require the consent or affirmative vote of the Holders of each Outstanding Security, or require the Company to deliver to the Trustee an Officer’s Certificate or an Opinion of Counsel.

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SECTION 6.2.Successor Substituted.

Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer of all or substantially all the assets of the Company in accordance with Section 6.1, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all the obligations and covenants under this Indenture and the Securities except with respect to any obligations that arise from, or are related to, such transaction.

ARTICLE 7.

SUPPLEMENTAL INDENTURES

SECTION 7.1.Supplemental Indentures without Consent of Holders of Securities.

Without the consent or affirmative vote of any Holders of Securities, the Company, the Guarantors, if applicable, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may amend this Indenture, the Securities and the Subsidiary Guarantees by entering into one or more indentures supplemental hereto for any of the following purposes:

(1)to cure any ambiguity, to correct or supplement any provision herein that may be inconsistent with any other provision herein or that is otherwise defective, including to correct any inconsistency between the terms of this Indenture, any Subsidiary Guarantee or the Securities and the terms summarized in the “Description of Notes” section of the Offering Memorandum, dated December 12, 2006, relating to the Securities;

(2)to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants and obligations of the Company herein and in the Securities as permitted by Article VI;

(3)to make provision with respect to the conversion rights of Holders of Securities pursuant to Section 10.1 or to make provision with respect to the repurchase rights of Holders of Securities pursuant to Section 12.1;

(4)to make provision for an increase in the Conversion Rate, provided that the increase will not adversely affect the interests of the Holders of Securities;

(5)to evidence and provide for the acceptance of appointment hereunder by a successor Trustee;

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(6)to provide for uncertificated Securities in addition to or in place of certificated Securities (provided that the uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the Code);

(7)to add Guarantors with respect to the Securities or release Guarantors from Subsidiary Guarantees as provided or permitted by the terms of this Indenture;

(8)to secure the Securities or release the security as provided or permitted by the terms of this Indenture, the Escrow Agreement or the Pledge Agreement;

(9)to add to the covenants of the Company or Events of Default for the benefit of the Holders of Securities or to surrender any right or power herein conferred upon the Company;

(10)to comply with the requirements of the Trust Indenture Act or the rules and regulations of the Commission thereunder in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act, as contemplated by this Indenture or otherwise; or

(11)to make any other provisions with respect to matters or questions arising under this Indenture as the Company may deem necessary or desirable, provided that such action pursuant to this clause (12) shall not adversely affect the interests of the Holders of Securities.

Upon Company Request accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and subject to and upon receipt by the Trustee of the documents described in Section 7.3 hereof, the Trustee shall join with the Company in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained.

SECTION 7.2.Supplemental Indentures with Consent of Holders of Securities.

With either (a) the written consent of the Holders of not less than a majority in principal amount of the Outstanding Securities, by the Act of said Holders delivered to the Company, the Guarantors and the Trustee, or (b) by the adoption of a resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of a majority in principal amount of the Outstanding Securities represented at such meeting, the Company and the Guarantors when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, the Securities and the Subsidiary Guarantees or of modifying in any manner the rights of the Holders of Securities under this Indenture, the Subsidiary Guarantees or the Securities; provided, however, that no such supplemental indenture shall, without the consent or affirmative vote of the Holder of each Outstanding Security affected thereby:

(1)change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount, any premium or the rate of interest payable thereon, or the coin or currency in which any Security or the interest or any premium thereon or any other amount in respect thereof is payable;

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(2)impair the right to institute suit for the enforcement of any payment in respect of any Security on or after the Stated Maturity thereof (or, in the case of any repurchase or redemption, on or after the Repurchase Date or the Redemption Date, respectively);

(3)except as permitted by Section 10.12, adversely affect the right to convert any Security as provided in Article X; or

(4)reduce the percentage in principal amount of the Outstanding Securities the consent of whose Holders is required for any supplemental indenture to modify or amend any provision of this Indenture or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or

(5)modify any of the provisions of this Section 7.2 except to increase any required percentage contained herein or therein or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby.

It shall not be necessary for any Act of Holders of Securities under this Section 7.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

The quorum at any meeting called to adopt a resolution shall be Holders representing a majority in aggregate principal amount of Securities at the time Outstanding.

SECTION 7.3.Execution of Supplemental Indentures.

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article VII or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Sections 5.1 and 5.3) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

SECTION 7.4.Effect of Supplemental Indentures.

Upon the execution of any supplemental indenture under this Article VII, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder appertaining thereto shall be bound thereby.

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SECTION 7.5.Reference in Securities to Supplemental Indentures.

Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article VII may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Company and the Trustee, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities.

SECTION 7.6.Notice of Supplemental Indentures.

Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 7.2, the Company shall give notice to all Holders of Securities of such fact, setting forth in general terms the substance of such supplemental indenture, in the manner provided in Section 1.6. Any failure of the Company to give such notice, or any defect therein, shall not in any way impair or affect the validity of any such supplemental indenture.

ARTICLE 8.

COVENANTS

SECTION 8.1.Payment of Principal, Premium and Interest.

The Company covenants and agrees that it will duly and punctually pay the principal of and premium, if any, and interest on the Securities in accordance with the terms of the Securities and this Indenture. The Company shall deposit or cause to be deposited with the Trustee, no later than the close of business on the date of the Stated Maturity of any Security or no later than the close of business on the due date for any installment of interest, all payments so due, which payments shall be in immediately available funds or shares of Common Stock on the date of such Stated Maturity or due date, as the case may be.

SECTION 8.2.Maintenance of Offices or Agencies.

The Company hereby appoints the New York City office of the Trustee as its agent in the Borough of Manhattan, The City of New York, where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion, and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.

The Company may at any time and from time to time vary or terminate the appointment of any such agent or appoint any additional agents for any or all of such purposes; provided, however, that until all of the Securities have been delivered to the Trustee for cancellation, or moneys sufficient to pay the principal of, premium, if any, and interest on the Securities have been made available for payment and either paid or returned to the Company pursuant to the provisions of Section 8.3, the Company shall maintain in the Borough of Manhattan, The City of New York, an office or agency where Securities may be presented or surrendered for payment and conversion, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company shall give prompt written notice to the Trustee, and notice to the Holders in accordance with Section 1.6, of the appointment or termination of any such agents and of the location and any change in the location of any such office or agency.

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If at any time the Company shall fail to maintain any such required office or agency, or shall fail to furnish the Trustee with the address thereof, presentations and surrenders may be made and notices and demands may be served on the Corporate Trust Office.

SECTION 8.3.Money for Security Payments to Be Held in Trust.

If the Company will act as its own Paying Agent, it shall, on or before each due date of the principal of, premium, if any, or interest on any of the Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and the Company will promptly notify the Trustee of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents, it will, no later than the close of business on each due date of the principal of, premium, if any, or interest on any Securities, deposit with such Paying Agent(s) a sum sufficient to pay the principal, premium, if any, or interest so becoming due, such sum to be held for the benefit of the Persons entitled to such principal, premium, if any, or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure so to act.

The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 8.3, that such Paying Agent will:

(a)hold all sums held by it for the payment of the principal of, premium, if any, or interest on Securities for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

(b)give the Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal, premium, if any, or interest; and

(c)at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held by such Paying Agent.

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

Anything contained herein to the contrary notwithstanding, any money held by the Trustee or any Paying Agent in trust for the payment and discharge of the principal of, premium, if any, or interest on any Security that remains unclaimed for two (2) years after the date when each payment of such principal, premium, or interest has become payable shall, upon the request of the Company, be repaid by the Trustee to the Company as its absolute property free from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the Holders shall look only to the Company for the payment of the principal, premium or interest on such Security. The Trustee shall not be liable to the Company or any Holder for interest on funds held by it for the payment and discharge of the principal, premium or interest on any of the Securities to any Holder. The Company shall not be liable for any interest on the sums paid to it pursuant to this paragraph and shall not be regarded as a trustee of such money.

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SECTION 8.4.Existence.

Subject to Article VI, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.

SECTION 8.5.Statement by Officers as to Default.

The Company shall deliver to the Trustee, within one hundred twenty (120) days after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate (one of the signers of which shall be the Company’s principal executive, principal financial or principal accounting officer), stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they have knowledge.

The Company will deliver to the Trustee, forthwith upon becoming aware of any default in the performance or observance of any covenant, agreement or condition contained in this Indenture, or any Event of Default, an Officer’s Certificate specifying with particularity such default or Event of Default and further stating what action the Company has taken, is taking or proposes to take with respect thereto.

Any notice required to be given under this Section 8.5 shall be delivered to the Trustee at the Corporate Trust Office.

SECTION 8.6.Delivery of Certain Information.

The Company will deliver to the Trustee within fifteen (15) days after the filing of the same with the Commission, copies of the quarterly and annual reports and of the information, documents and other reports, if any, which the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act. Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will file with the Commission, to the extent permitted, and provide the Trustee and Holders with such annual reports and such information, documents and other reports specified in Sections 13 and 15(d) of the Exchange Act; provided that the Company need not file such reports or other information if, and so long as, it would not be required to do so pursuant to Rule 12h-5 under the Exchange Act. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein.

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At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder of a Security or the holder of shares of Common Stock issued upon conversion thereof, the Company will promptly furnish or cause to be furnished Rule 144A Information to such Holder of Securities or such holder of shares of Common Stock issued upon conversion of Securities, or to a prospective purchaser of any such security designated by any such Holder or holder, as the case may be, to the extent required to permit compliance by such Holder or holder with Rule 144A under the Securities Act (or any successor provision thereto) in connection with the resale of any such security; provided, however, that the Company shall not be required to furnish such information in connection with any request made on or after the date that is two years from the later of (a) the date such a security (or any such predecessor security) was last acquired from the Company or (b) the date such a security (or any such predecessor security) was last acquired from an “affiliate” of the Company within the meaning of Rule 144 under the Securities Act (or any successor provision thereto).

SECTION 8.7.Registration Rights.

The Company agrees that the Holders from time to time of Registrable Securities are entitled to the benefits of a Registration Rights Agreement, dated as of December 19, 2006, executed by the Company as it may be amended from time to time in accordance with its terms.

If Additional Interest is payable by the Company pursuant to Section 7 of the Registration Rights Agreement, the Company shall deliver to the Trustee a certificate to that effect stating (i) the amount of such Additional Interest per U.S.$1,000 principal amount of the Securities that are payable, (ii) the facts and calculations supporting the determination of such amount and (iii) the date on which such damages are payable. Unless and until an officer or representative of the Trustee receives such a certificate, the Trustee may assume without inquiry that no Additional Interest is payable.

SECTION 8.8.Additional Subsidiary Guarantees.

If the Company or any of its Domestic Subsidiaries acquires or creates another Domestic Subsidiary after the date of this Indenture, then that Domestic Subsidiary shall become a Guarantor and execute a Subsidiary Guarantee pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee and deliver an Opinion of Counsel to the Trustee within thirty Business Days of the date on which it was acquired; provided, however, that no Domestic Subsidiary shall be required to execute a Subsidiary Guaranty pursuant to a supplemental indenture or deliver an Opinion of Counsel to the Trustee prior to the date thirty Business Days after the consummation of the Acquisition. The form of such Subsidiary Guarantee is attached as Exhibit D hereto.

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ARTICLE 9.

MAKE WHOLE PREMIUM

In the event a Fundamental Change occurs prior to December 31, 2009, the Company shall pay a “Make Whole Premium” to the Holders of the Securities who convert their Securities during the period beginning ten (10) Trading Days before the date the Company announces as the anticipated effective date of the Fundamental Change (the “Fundamental Change Effective Date”) and ending at the close of business on the Trading Day immediately preceding the Fundamental Change Repurchase Date by increasing the Conversion Rate for such Securities. Any Make Whole Premium will be in addition to, and not in substitution for, any cash, securities, or other assets otherwise due to Holders upon conversion. The number of additional shares of Common Stock per $1,000 principal amount of Securities constituting the Make Whole Premium shall be determined by the Company by reference to the table below, based on the Fundamental Change Effective Date and the Stock Price of such Fundamental Change. If holders of the Common Stock receive only cash in the Fundamental Change, the Stock Price shall be the cash amount paid per share of the Common Stock. In all other cases, the Stock Price shall be the average of the closing prices of the Company’s Common Stock for each of the ten (10) Trading Days immediately prior to, but not including, the Fundamental Change Effective Date.

Make-Whole Premium Upon a Fundamental Change (No. of Additional Shares per $1,000 Principal Amount)
		$5.64	$6.00	$6.50	$7.00	$7.50	$8.00	$8.50	$9.00	$9.50	$10.00	$10.50	$11.00	$11.50	$12.00
Effective Date	12/31/06	40.879	35.966	30.584	26.114	22.373	19.225	16.565	14.311	12.400	10.780	9.409	8.300	7.330	6.525
	12/31/07	40.879	32.535	26.648	21.887	18.428	15.651	13.319	11.357	9.706	8.321	7.163	6.201	5.410	4.767
	12/31/08	40.879	27.657	21.375	16.420	12.659	9.680	7.640	6.104	4.836	3.894	3.232	2.722	2.430	2.245
	12/31/09	40.879	23.620	14.496	7.389	1.563	0.000	0.000	0.000	0.000	0.000	0.000	0.000	0.000	0.000

The actual Stock Price or Fundamental Change Effective Date may not be set forth on the table, in which case:

(a)if the actual Stock Price on the Fundamental Change Effective Date is between two Stock Prices on the table or the actual Fundamental Change Effective Date is between two Fundamental Change Effective Dates on the table, the Make Whole Premium will be determined by a straight-line interpolation between the Make Whole Premiums set forth for the two Stock Prices and the two Fundamental Change Effective Dates on the table based on a 365-day year, as applicable,

(b)if the Stock Price on the Fundamental Change Effective Date exceeds $12.00 per share, subject to adjustment as set forth herein, no Make Whole Premium will be paid, and

(c)if the Stock Price on the Fundamental Change Effective Date is less than $5.64 per share, subject to adjustment as set forth herein, no Make Whole Premium will be paid.

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The Stock Prices set forth in the top row of the table above will be adjusted as of any date on which the Conversion Rate of the Securities is adjusted. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of additional shares set forth in the table above will be adjusted in the same manner as the Conversion Rate as set forth in Section 10.5 hereof, other than as a result of an adjustment of the Conversion Rate pursuant to this Article IX.

Notwithstanding the foregoing paragraph, in no event will the total number of shares of Common Stock issuable upon conversion of a Security exceed 177.305 per $1,000 principal amount, subject to proportional adjustment in the same manner as the Conversion Rate as set forth in Section 10.5 hereof.

The additional shares issuable pursuant to this Article IX shall be delivered upon the later of (i) the settlement date for the conversion and (ii) promptly following the Fundamental Change Effective Date.

By delivering the number of shares of Common Stock issuable on conversion to the Trustee, or to the Conversion Agent, if the Conversion Agent is other than the Trustee, the Company will be deemed to have satisfied its obligation to pay the principal amount of the Securities so converted and its obligation to pay accrued and unpaid interest, and Other Interest if any, attributable to the period from the most recent Interest Payment Date through the Conversion Date (which amount will be deemed paid in full rather than cancelled, extinguished or forfeited).

The Trustee may conclusively rely on the Company’s calculations of the Make Whole Premium.

ARTICLE 10.

CONVERSION OF SECURITIES

SECTION 10.1.Conversion Privilege and Conversion Rate.

(a)Subject to and upon compliance with the provisions of this Article X, at the option of the Holder thereof, unless earlier repurchased or redeemed, any portion of the principal amount of any Security that is an integral multiple of $1,000 may be converted into fully paid and non-assessable shares of Common Stock at the Conversion Rate, determined as hereinafter provided, in effect at the time of conversion. Such conversion right shall commence upon the consummation of the Acquisition and expire at the close of business on the Final Maturity, unless the Security has been previously repurchased or redeemed, subject, in the case of conversion of any Global Security, to any Applicable Procedures. In case the Holder of a Security exercises his right to require the Company to repurchase or redeem the Security, such conversion right in respect of the security, or portion thereof, shall expire at the close of business on the second Business Day immediately preceding the Repurchase Date or Redemption Date, as applicable, unless the Company defaults in making the payment due upon repurchase (in each case subject, as aforesaid, to any Applicable Procedures with respect to any Global Security).

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(b)The rate at which shares of Common Stock shall be delivered upon conversion (herein called the “Conversion Rate”) shall be initially 136.426 shares of Common Stock for each $1,000 principal amount of Securities. The Conversion Rate will be adjusted under the circumstances provided in Section 10.5. All calculations under this Article shall be made to the nearest cent or to the nearest 1 /100ths of a share, as the case may be.

SECTION 10.2.Conversion Consideration.

(a)Upon surrendering any Securities for conversion, the Holder of such Securities shall receive, in respect of each $1,000 principal amount of Securities, a number of shares of Common Stock equal to the Applicable Conversion Rate.

(b)At any time prior to Maturity, the Company shall have the option to unilaterally and irrevocably elect to settle its obligation to deliver shares of Common Stock with respect to Securities to be converted following such election in cash, and, if applicable, shares of Common Stock.  If the Company shall make this election, then if a Holder surrenders its Securities for conversion, such Holder will receive, in respect of each $1,000 principal amount of Securities surrendered for conversion:

(1)cash in the amount equal to the lesser of:

(A)the principal amount of each Security; or

(B)the Conversion Value; and

(2)to the extent the Conversion Value exceeds $1,000, a number of shares of Common Stock (the “Residual Value Shares”) equal to the sum of the Daily Trading Share Amounts for each of the 20 consecutive Trading Days in the Applicable Conversion Reference Period; provided, however, that the Company shall pay cash in lieu of fractional shares otherwise issuable upon conversion of the Securities in accordance with Section 10.4.

(c)The Company will determine the Conversion Value, the Daily Trading Share Amount, the calculation of the excess of the Conversion Value over the principal amount and the number of shares of Common Stock deliverable to Holders upon conversion in satisfaction of such excess.

SECTION 10.3.Exercise of Conversion Privilege.

In order to exercise the conversion privilege, the Holder of any Security to be converted shall surrender such Security, duly endorsed or assigned to the Company or in blank, at any office or agency of the Company maintained for that purpose pursuant to Section 8.2, accompanied by a duly signed and completed notice of conversion substantially in the form attached hereto as Exhibit C (the “Conversion Notice”) stating that the Holder elects to convert such Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted. Each Security surrendered for conversion (in whole or in part) during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date shall (except in the case of any Security or portion thereof that is to be repurchased or redeemed on a Repurchase Date or Redemption Date, respectively, with the consequence that the conversion right of such Security would terminate between such Regular Record Date and the close of business on such Interest Payment Date) be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of such Security (or part thereof, as the case may be) being surrendered for conversion. The interest so payable on such Interest Payment Date, with respect to any Security (or portion thereof, if applicable) that is surrendered for conversion during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date, shall be paid to the Holder of such Security as of such Regular Record Date. Interest payable in respect of any Security surrendered for conversion on or after an Interest Payment Date shall be paid to the Holder of such Security as of the next preceding Regular Record Date, notwithstanding the exercise of the right of conversion. Except as provided in this paragraph, no cash payment or adjustment shall be made upon any conversion on account of any interest accrued from the Interest Payment Date next preceding the Conversion Date, in respect of any Security (or part thereof, as the case may be) surrendered for conversion, or on account of any dividends on the Common Stock issued upon conversion. The Company’s delivery to the Holder of the number of shares of Common Stock, if any, and cash as provided in this Indenture, into which a Security is convertible and any rights pursuant to Section 10.6(m) will be deemed to satisfy the Company’s obligation to pay the principal amount of the Security.

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If the Company elects to settle in cash all or part of its obligations to deliver shares of Common Stock with respect to Securities to be converted, notice of such election shall be given to Holders in the manner provided in Section 1.6 on or before the date that is three Business Days following the Company’s receipt of the Conversion Notice.

Securities shall be deemed to have been converted on the day of surrender of such Securities for conversion in accordance with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive the Common Stock, issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock at such time. As promptly as practicable on or after the Conversion Date, the Company shall satisfy its obligations with respect to such conversion by either:

(1)delivering to the Trustee cash payable pursuant to Section 10.2, if any, as elected by the Company;

(2)delivering to the Trustee, for delivery to the Holder (or such other Person as may be named in the relevant Conversion Notice), certificates representing the number of shares of Common Stock, if any, issuable upon such conversion; and/or

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(3)delivering to such Holder (or such other Person as may be named in the relevant Conversion Notice) such number of shares of Common Stock, if any, issuable upon such conversion in accordance with the Applicable Procedures,

in each case, together with payment of any cash in lieu of any fractional shares, if any, as provided in Section 10.4.

The Company shall (i) deliver shares of Common Stock, if any, deliverable upon conversion of all Securities into Common Stock to the Conversion Agent no later than the third Business Day following the Conversion Date, or (ii) in the event the Company elects to settle in cash all or part of its obligation to deliver shares of Common Stock with respect to Securities to be converted, deliver shares of Common Stock and cash, deliverable upon conversion of the Securities no later than the third Business Day following the end of the Applicable Conversion Reference Period.

Any shares of Common Stock delivered upon such conversion of Securities shall bear restrictive legends substantially in the form of the legends required to be set forth on the Securities pursuant to Section 2.6 and shall be subject to the restrictions on transfer provided in such legends. Neither the Trustee nor any agent maintained for the purpose of such conversion shall have any responsibility for the inclusion or content of any such restrictive legends on such Common Stock; provided, however, that the Trustee or any agent maintained for the purpose of such conversion shall have provided to the Company or to the Company’s transfer agent for such Common Stock, prior to or concurrently with a request to the Company to deliver such Common Stock, written notice that the Securities delivered for conversion are Securities.

In the case of any Security that is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Registered Security or Securities of authorized denominations in an aggregate principal amount equal to the unconverted portion of the principal amount of such Security. A Security may be converted in part, but only if the principal amount of such Security to be converted is any integral multiple of U.S.$1,000 and the principal amount of such security to remain Outstanding after such conversion is equal to U.S.$l,000 or any integral multiple of U.S.$l,000 in excess thereof.

SECTION 10.4.Fractions of Shares.

No fractional shares of Common Stock shall be issued upon conversion of any Security or Securities. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) so surrendered. The number of fractional shares to be paid, if any, will be valued by the Closing Price of the Common Stock on the Trading Day immediately preceding the Conversion Date. Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of any Security or Securities (or specified portions thereof), the Company shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the same fraction of the Closing Price on the Trading Day immediately preceding the Conversion Date.

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SECTION 10.5.Adjustment of Conversion Rate.

The Conversion Rate shall be subject to adjustments from time to time as follows:

(a)In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (l) of this Section 10.5) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Company’s Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.

(b)In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (h) of this Section 10.5) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (2) that are distributed to shareholders of the Company upon a merger or consolidation), then the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (l) of this Section 10.5) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the company’s Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be, and as a result no additional shares are delivered or issued pursuant to such rights, options or warrants. For the purposes of this paragraph (b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.

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(c)(i) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased; (ii) in case outstanding shares of Common Stock shall each be combined or reclassified into a smaller number of shares of Common Stock, then the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced; and (iii) in case the Company issues any shares of its Capital Stock in a reclassification of the outstanding shares of Common Stock, then the Conversion Rate in effect at the opening of business on the day following the day upon which such reclassification becomes effective shall be proportionately applied to the new class of shares of Capital Stock of the Company into which the Common Stock was reclassified; in each case, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.

(d)In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its Indebtedness, shares of any class of capital stock, or other property (provided that if these rights are only exercisable upon the occurrence of specified triggering events, the Conversion Rate will not be adjusted until the triggering events occur) (including cash or assets or securities, but excluding (1) any rights, options or warrants referred to in paragraph (b) of this Section 10.5 and the distribution of rights to all holders of Common Stock pursuant to the adoption of a stockholders’ rights plan or the detachment of such rights under the terms of such stockholders’ rights plan, (2) any dividend or distribution paid in cash, except as set forth in paragraphs (e) and (f) of this Section 10.5, (3) any dividend or distribution referred to in paragraph (a) of this Section 10.5 and (4) any merger or consolidation paid in cash to which Section 10.12 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (h) of this Section 10.5) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of Indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (l) of this Section 10.5) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.

(e)In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding cash portions of distributions referred to in Section 10.5(d) and any cash that is distributed upon a merger or consolidation to which Section 10.12 applies), then, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (A) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 10.5) of the Common Stock on the date fixed for such determination less an amount equal to the cash distribution per share of Common Stock and (B) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 10.5) of the Common Stock on such date fixed for determination.

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(f)In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that exceeds the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 10.5) as of the completion of such tender offer (the “Completion Date”) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (A) the numerator of which shall be equal to (i) the product of (x) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 10.5) on the Completion Date multiplied by (y) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (ii) the fair market value of the aggregate consideration paid in the tender offer (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), and (B) the denominator of which shall be equal to the product of (x) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 10.5) as of the Completion Date multiplied by (y) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date.

(g)The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 10.11 applies) shall be deemed to involve (1) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (d) of this Section 10.5), and (2) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (c) of this Section 10.5).

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(h)For the purpose of any computation under paragraphs (b), (d), (e) or (f) of this Section 10.5, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the Volume Weighted Average Price for the Trading Day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.

(i)No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (i)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article X shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.

(j)The Company may make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (a), (b), (c), (d), (e) and (f) of this Section 10.5, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes.

To the extent permitted by applicable law and subject to the stockholder approval requests of any applicable U.S. Securities exchange on which the Common Stock is traded, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

(k)Notwithstanding the foregoing provisions of this Section 10.5, no adjustment of the Conversion Rate shall be required to be made (1) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (2) because of a tender or exchange offer of the character described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto or (3) as a result of a rights plan or poison pill implemented by the Company.

(l)In any case in which this Section 10.5 shall require that an adjustment be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and on and before such adjustment shall have become effective (1) defer paying any cash payment pursuant to Section 10.4 hereof or issuing to the Holder of such Security the number of shares of Common Stock issuable upon such conversion in excess of the number of shares of Common Stock issuable thereupon only on the basis of the Conversion Rate prior to adjustment, and (2) not later than five (5) Business Days after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 10.4 hereof and issue to such Holder the additional shares of Common Stock issuable on such conversion. Notwithstanding the foregoing, no adjustment of the Conversion Rate shall be made if the event giving rise to such adjustment does not occur.

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(m)In the event that the Company distributes rights or warrants (other than those referred to in paragraph (b) above) pro rata to holders of Common Stock, so long as any such rights or warrants have not expired, the Company shall make proper provision so that the Holder of any Security surrendered for conversion will be entitled to receive upon such conversion, in addition to the Common Stock issuable upon conversion of the Securities (the “Conversion Shares”), a number of rights and warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of rights or warrants of separate certificates evidencing such rights or warrants (the “Distribution Date”), the same number of rights or warrants to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the rights or warrants, and (ii) if such conversion occurs after such Distribution Date, the same number of rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of such Security so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the rights or warrants.

SECTION 10.6.Notice of Adjustments of Conversion Rate.

Whenever the Conversion Rate is adjusted as herein provided:

(a)the Company shall compute the adjusted Conversion Rate in accordance with Section 10.5 and shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall promptly be filed with the Trustee and with the Conversion Agent; and

(b)upon each such adjustment, a notice stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate shall be required, and as soon as practicable after it is required, such notice shall be provided by the Company to all Holders in accordance with Section 1.6.

Neither the Trustee nor the Conversion Agent shall be under any duty or responsibility with respect to any such certificate or the information and calculations contained therein, except to exhibit the same to any Holder of Securities desiring inspection thereof at its office during normal business hours. Unless and until a Responsible Officer of the Trustee and Conversion Agent receive notice of an adjusted Conversion Rate, the Trustee and the Conversion Agent may rely without inquiry on the Conversion Rate most recently in effect.

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SECTION 10.7.Notice of Certain Corporate Action.

In case:

(a)the Company shall declare a dividend (or any other distribution) on its Common Stock; or

(b)the Company shall authorize the granting to the holders of its Common Stock of rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights; or

(c)of any reclassification of the Common Stock of the Company, or of any consolidation, merger or share exchange to which the Company is a party and for which approval of any stockholders of the Company is required, or of the conveyance, sale, transfer or lease of all or substantially all of the assets of the Company; or

(d)of the voluntary or involuntary dissolution, liquidation or winding up of the Company;

then the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 8.2, and shall cause to be provided to all Holders in accordance with Section 1.6, at least twenty (20) days (or ten (10) days in any case specified in clause (a) or (b) above) prior to the applicable record or effective date hereinafter specified, a notice stating (1) the date on which a record is to be taken for the purpose of such dividend, distribution, rights, options or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights, options or warrants are to be determined or (2) the date on which such reclassification, consolidation, merger, conveyance, transfer, sale, lease, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, conveyance, transfer, sale, lease, dissolution, liquidation or winding up. Neither the failure to give such notice or the notice referred to in the following paragraph nor any defect therein shall affect the legality or validity of the proceedings described in clauses (a) through (d) of this Section 10.7. If at the time the Trustee shall not be the Conversion Agent, a copy of such notice shall also forthwith be filed by the Company with the Trustee.

The Company shall cause to be filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 8.2, and shall cause to be provided to all Holders in accordance with Section 1.6, notice of any tender offer by the Company or any Subsidiary for all or any portion of the Common Stock at or about the time that such notice of tender offer is provided to the public generally.

SECTION 10.8.Company to Reserve Common Stock.

The Company shall at all times following the consummation of the Acquisition and the approval of the Authorized Share Increase reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities, the full number of shares of Common Stock then issuable upon the conversion of all Outstanding Securities.

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SECTION 10.9.Taxes on Conversions.

Except as provided in the next sentence, the Company will pay any and all taxes and duties that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Company the amount of any such tax or duty or has established to the satisfaction of the Company that such tax or duty has been paid.

SECTION 10.10.Covenant as to Common Stock.

The Company agrees that all shares of Common Stock that may be delivered upon conversion of Securities, upon such delivery, will be newly issued shares and will have been duly authorized and validly issued and will be fully paid and nonassessable and, except as provided in Section 10.9, the Company will pay all taxes, liens and charges with respect to the issue thereof.

The Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Securities hereunder require registration with or approval of any governmental authority under any federal or state law before such shares may be validly issued upon conversion, the Company will use all commercially reasonable efforts, to the extent then permitted by the rules and interpretations of the Commission (or any successor thereto) or such other applicable governmental authority, to secure such registration or approval in connection with the conversion of Securities.

The Company further covenants that if at any time the Common Stock shall be listed on the American Stock Exchange or any other national securities exchange or automated quotation system the Company will, if permitted and required by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Securities.

SECTION 10.11.Cancellation of Converted Securities.

All Securities delivered for conversion shall be delivered to the Trustee or its agent to be cancelled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 2.10 .

SECTION 10.12.Provision in Case of Consolidation, Merger or Sale of Assets.

In case of any consolidation or merger of the Company with or into any other Person, any merger of another Person with or into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company) or any conveyance, sale, transfer or lease of all or substantially all of the assets of the Company, the Person formed by such consolidation or resulting from such merger or that acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Security shall be convertible as specified in Section 10.1, to convert such Security only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (a) is not a Person with which the Company consolidated or merged with or into or that merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a “Constituent Person”), or an Affiliate of a Constituent Person and (b) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised (“Non-electing Share”), then for the purpose of this Section 10.12 the kind and amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the holders of each Non-electing Share shall be deemed to be the kind and amount so receivable per share by a plurality of the Non-electing Shares). Such supplemental indenture shall provide for adjustments that, for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article X. The above provisions of this Section 10.12 shall similarly apply to successive consolidations, mergers, conveyances, sales, transfers or leases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 1.6 promptly upon such execution.

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Neither the Trustee nor the Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Officers Certificate or an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

SECTION 10.13.Responsibility of Trustee for Conversion Provisions.

(a)The Trustee, subject to the provisions of Section 5.1, and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Securities to determine whether any facts exist that may require any adjustment of the Conversion Rate, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed herein or in any supplemental indenture in making the same, or whether a supplemental indenture need be entered into. Neither the Trustee, subject to the provisions of Section 5.1, nor any Conversion Agent shall be accountable with respect to the validity or value (or the kind or amount) of any Common Stock, or of any other securities or property or cash, that may at any time be issued or delivered upon the conversion of any Security; and it or they do not make any representation with respect thereto. Neither the Trustee, subject to the provisions of Section 5.1, nor any Conversion Agent shall be responsible for any failure of the Company to make or calculate any cash payment or to issue, transfer or deliver any shares of Common Stock or share certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion; and the Trustee, subject to the provisions of Section 5.1, and any Conversion Agent shall not be responsible for any failure of the Company to comply with any of the covenants of the Company contained in this Article X .

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ARTICLE 11.

[RESERVED]

ARTICLE 12.

PURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON A

FUNDAMENTAL CHANGE

SECTION 12.1.Right to Require Repurchase.

In the event that a Fundamental Change shall occur, then each Holder shall have the right, at the Holder’s option, but subject to the provisions of Section 12.2, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all of such Holder’s Securities, or any portion of the principal amount thereof that is equal to U.S.$1,000 or any greater integral multiple of U.S.$1,000, on the date (the “Repurchase Date”) that is fixed by the Company at a cash purchase price equal to one hundred percent (100%) of the principal amount of the Securities to be repurchased plus interest and Other Interest, if any, accrued to, but excluding, the Repurchase Date (the “Repurchase Price”); provided, however, that installments of interest on Securities whose Stated Maturity is on or prior to the Repurchase Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 2.8. The Repurchase Date will be determined by the Company in the following manner: (i) the Company will give notice of the Fundamental Change as contemplated in Section 12.2(a) ; (ii) each Holder electing to exercise the repurchase right must deliver, on or before the twentieth (20th) day (or such greater period as may be required by applicable law) after the date of the Company’s notice provided in provision (i) above: (A) irrevocable written notice to the trustee of such Holder’s exercise of its repurchase right; and (B) the Securities with respect to which such repurchase right is being exercised; and (iii) the Company will make the repurchase on a date that is no later than twenty (20) Business Days after the Holder has delivered the notice provided in proviso (ii) above. Such right to require the repurchase of the Securities shall not continue after a discharge of the Company from its obligations with respect to the Securities in accordance with Article III unless a Fundamental Change shall have occurred prior to such discharge.

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SECTION 12.2.Notices; Method of Exercising Repurchase Right, Etc.

(a)On or before the twentieth (20th) day after the occurrence of a Fundamental Change, the Company or, at the request and expense of the Company on or before the thirtieth (30th) day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the “Company Notice”) of the occurrence of the Fundamental Change and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee.

Each notice of a repurchase right shall state:

(1)the Repurchase Date,

(2)the date by which the repurchase right must be exercised,

(3)the Repurchase Price, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of shares of Common Stock or a combination thereof,

(4)a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,

(5)that on the Repurchase Date, the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased and that interest thereon shall cease to accrue on and after said date,

(6)the Conversion Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,

(7)the place or places that the Notice of Election of Holder to Require Repurchase attached hereto as Exhibit B, shall be delivered, and the form of such notice, and

(8)the CUSIP number or numbers of such Securities.

No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities.

If any of the foregoing provisions or other provisions of this Article XII are inconsistent with applicable law, such law shall govern.

(b)To exercise a repurchase right, a Holder shall deliver to the Trustee on or before the twentieth (20th) day (or such greater period as may be required by applicable law) after the date of the Company Notice (1) written notice of the Holder’s exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (2) the Securities with respect to which the repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Holder to convert the Securities with respect to which the repurchase right is being exercised shall continue until the close of business on the Business Day immediately preceding the Repurchase Date.

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(c)In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised.

(d)If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate then in effect per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.

(e)Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.

(f)All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.10.

ARTICLE 13.

HOLDERS LISTS AND REPORTS BY

TRUSTEE AND COMPANY; NON-RECOURSE

SECTION 13.1.Company to Furnish Trustee Names and Addresses of Holders.

The Company will furnish or cause to be furnished to the Trustee:

(a)semi-annually, not more than fifteen (15) days after the Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities as of such Regular Record Date, and

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(b)at such other times as the Trustee may reasonably request in writing, within thirty (30) days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than fifteen (15) days prior to the time such list is furnished;

provided, however, that no such list need be furnished so long as the Trustee is acting as Security Registrar.

SECTION 13.2.Preservation of Information.

(a)The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 13.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 13.1 upon receipt of a new list so furnished.

(b)After this Indenture has been qualified under the Trust Indenture Act, the rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act.

(c)Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.

SECTION 13.3.No Recourse Against Others.

An incorporator or any past, present or future director, officer, employee or stockholder, as such, of the Company or any successor entity shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such liability. Such waiver and release shall be part of the consideration for the issue of the Securities.

SECTION 13.4.Reports by Trustee.

(a)After this Indenture has been qualified under the Trust Indenture Act, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15 following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15, that complies with the provisions of such Section 313(a).

(b)After this Indenture has been qualified under the Trust Indenture Act, a copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when the Securities are listed on any stock exchange.

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SECTION 13.5.Reports by Company.

After this Indenture has been qualified under the Trust Indenture Act, the Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein; provided, however, that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within fifteen (15) days after the same is so required to be filed with the Commission.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).

ARTICLE 14.

REDEMPTION OF SECURITIES

SECTION 14.1.Right of Redemption.

The Company may elect to redeem for cash all or any portion of the Securities (a “Redemption”) at any time on or after December 31, 2009 (the “Redemption Date”).

The Securities shall not be redeemable at the option of the Company other than pursuant to this Article XIV. The Securities shall be subject to mandatory redemption as provided in Section 14.10.

SECTION 14.2.Applicability of Article.

Redemption of Securities at the election of the Company or otherwise, as permitted or required by any provision of the Securities or this Indenture, shall be made in accordance with such provision and this Article XIV .

SECTION 14.3.Election to Redeem; Notice to Trustee.

In case of any redemption pursuant hereto, the Company shall, at least fifteen (15) Business Days prior to the Redemption Notice Date (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee by Company Request of the Redemption Date and of the principal amount of Securities of that series to be redeemed and shall deliver to Trustee such documentation and records as shall enable Trustee to select the Securities to be redeemed pursuant to Section 14.4.

SECTION 14.4.Selection by Trustee of Securities to Be Redeemed.

If less than all the Securities are to be redeemed, the particular Securities to be redeemed shall be selected by the Trustee at least five (5) Business Days prior to the Redemption Notice Date from the Outstanding Securities not previously called for redemption by lot or such method as the Trustee may deem fair and appropriate.

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If any Registered Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the unconverted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption.

The Trustee shall promptly notify the Company and each Security Registrar in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount and certificate numbers thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities that has been or is to be redeemed.

SECTION 14.5.Notice of Redemption.

Upon not less than thirty (30) nor more than sixty (60) days prior to the Redemption Date (the “Redemption Notice Date”), notice of Redemption shall be given by the Company, or by the Trustee upon the written request of the Company, in the manner provided in Section 1.6 to all Holders of Securities in the case of an Redemption by the Company. All notices of Redemption shall identify the Securities to be redeemed (including CUSIP numbers) and shall state:

(a)the Redemption Date,

(b)the Redemption Price,

(c)that on the Redemption Date the Redemption Price, will become due and payable upon each such Security to be redeemed, and that interest thereon shall cease to accrue on and after said date,

(d)the Conversion Rate, the date on which the right to convert the Securities to be redeemed will terminate and the places where such Securities may be surrendered for conversion, and

(e)the place or places where such Securities are to be surrendered for payment of the Redemption Price.

If any of the Securities to be redeemed is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to redemptions.

Notice of Redemption received by the Trustee shall be given by the Trustee to the Paying Agent in the name of and at the expense of the Company.

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Notice of redemption of Securities to be redeemed at the election of the Company, at its written request to Trustee made at least 45 days prior to the Redemption Date, shall be given by the Trustee in the name and at the expense of the Company. In such event, the Company shall provide the Trustee with the information required by this Section.

SECTION 14.6.Deposit of Redemption Price.

Not less than one (1) Business Day prior to any Redemption Date, the Company shall deposit with the Trustee (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 8.3) an amount of money (which shall be in immediately available funds on such Redemption Date) sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued or unpaid interest and Additional Interest on, all the Securities that are to be redeemed on that date other than any Securities called for Redemption on that date that have been converted prior to the date of such deposit.

If any Security called for Redemption is converted, any money deposited with the Trustee or so segregated and held in trust for the Redemption of such Security shall (subject to any right of the Holder or such Security or any Predecessor Security to receive interest as provided in the last paragraph of Section 2.8) be paid to the Company on Company Request or, if then held by the Company, shall be discharged from such trust.

SECTION 14.7.Securities Payable on Redemption Date.

Notice of redemption having been given as aforesaid, the Securities to be so redeemed shall, on the applicable Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price, including any applicable accrued interest) such Securities shall cease to bear interest. Upon surrender of any Securities for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price together with any applicable accrued and unpaid interest and Other Interest up to but not including the Redemption Date; provided, however, that installments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 2.8.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal amount of, premium, if any, and, to the extent permitted by applicable law, accrued interest on such Security shall, until paid, bear interest from the Redemption Date at the rate then in effect, and such Security shall remain convertible until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.

SECTION 14.8.Securities Redeemed in Part.

Any Security that is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 8.2 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Registered Security or Securities, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

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SECTION 14.9.Conversion Arrangement on Call for Redemption.

In connection with any redemption of the Securities, the Company may arrange for the purchase and conversion of any Securities by an agreement with one or more investment bankers or other purchasers (the “Purchasers”) to purchase such Securities by paying to the Trustee in trust for the Holders, on or before the applicable Redemption Date, an amount not less than the applicable Redemption Price, together with interest accrued and unpaid to such Redemption Date, of such Securities. Notwithstanding anything to the contrary contained in this Article XIV, the obligation of the Company to pay the applicable Redemption Price, together with any applicable interest (including Other Interest) accrued and unpaid to, but not including, the Redemption Date, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such Purchasers. If such an agreement is entered into (a copy of which shall be filed with the Trustee prior to the close of business on the second (2^nd) Business Day immediately prior to the Redemption Date), any Securities called for redemption that are not duly surrendered for conversion by the Holders thereof may, at the option of the Company, be deemed, to the fullest extent permitted by law, and consistent with any agreement or agreements with such Purchasers, to be acquired by such Purchasers from such Holders and (notwithstanding anything to the contrary contained in this Article XIV) surrendered by such Purchasers for conversion, all as of immediately prior to the close of business on the Redemption Date (and the right to convert any such Securities shall be extended through such time), subject to payment of the above amount as aforesaid. At the direction of the Company, the Trustee shall hold and dispose of any such amount paid to it by the Purchasers to the Holders in the same manner as it would monies deposited with it by the Company for the redemption of Securities. Without the Trustee’s prior written consent, no arrangement between the Company and such Purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture, and the Company agrees to indemnify the Trustee from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Company and such Purchasers, including the costs and expenses, including reasonable legal fees, incurred by the Trustee in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture.

SECTION 14.10.Escrow Agreement and Special Mandatory Redemption.

(a)Except as set forth in clause (b) of this Section 14.10 or under Article XII hereof, the Company is not required to make mandatory redemption payments with respect to the Securities.

(b)The Company agrees to enter into the Escrow Agreement on the date hereof and comply with the terms and provisions thereof. Each Holder, by its acceptance of this Security, consents and agrees to the terms of the Escrow Agreement as the same may be in effect or may be amended from time to time in accordance with its terms, and authorizes and directs the Trustee, in its capacity as escrow agent, to enter into the Escrow Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith.

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(c)In accordance with the terms and conditions of the Escrow Agreement, and using the Deposits (as defined in the Escrow Agreement), the Company shall redeem all and not less than all of the Securities, if the Acquisition and/or the Authorized Share Increase shall not have been approved by the Company’s stockholders on or before May 31, 2007 or shall have been rejected by the stockholders prior to that date (in either case, a“Special Mandatory Redemption Event”), at a redemption price equal to 100% of the principal amount of the Securities, plus any Escrow Interest (a “Special Mandatory Redemption”). In the event of a Special Mandatory Redemption, the Company shall not be required to make interest payments on each Interest Payment Date at a rate of 8% per annum but shall only be required to pay the Escrow Interest.

(d)Upon the occurrence of a Special Mandatory Redemption Event, the Company will cause a notice of such redemption to be sent in the manner set forth in Section 1.6 no later than five (5) Business Days after the occurrence of the Special Mandatory Redemption Event, and shall redeem the Securities no later than fifteen (15) days following the date of such notice of redemption (the “Special Mandatory Redemption Date”).

(e)The Deposits may be released from the Escrow Agreement in accordance with the provisions of the Escrow Agreement. The Trustee and each of the Holders acknowledge that a release of Deposits in accordance with the provisions of the Escrow Agreement and of this Indenture will not be deemed for any purpose to be an impairment of the Deposits in contradiction of the terms of this Indenture or the Trust Indenture Act. Prior to the filing of the Shelf Registration Statement pursuant to the Registration Rights Agreement, the Company will not comply with Section 3.14(d) of the Trust Indenture Act relating to the release of property or securities from the Escrow Agreement and relating to the substitution therefore of any property or securities to be subjected to the Escrow Agreement to be complied with.

SECTION 14.11.Security and Pledge.

(a)To secure certain obligations of the Company to the Holders of the Securities, the Company agrees to enter into the Pledge Agreement on the date hereof an comply with the terms and provisions thereof.

(b)Each Holder, by its acceptance of this Security, consents and agrees to the terms of the Pledge Agreement as the same may be in effect or may be amended from time to time in accordance with its terms, and authorizes and directs the Trustee, in its capacity as collateral agent, to enter into the Pledge Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith.

(c)The Collateral (as defined in the Pledge Agreement) may be released from the security interest created by the Pledge Agreement at any time or form time to time in accordance with the provisions of the Pledge Agreement. The Trustee and each of the Holders acknowledge that a release of a lien strictly in accordance with the provisions of the Pledge Agreement and of this Indenture will not be deemed for any purpose to be an impairment of the Collateral in contraction of the terms of this Indenture or the Trust Indenture Act. Prior to the filing of the Shelf Registration Statement pursuant to the Registration Rights Agreement, the Company will not comply with Section 3.14(d) of the Trust Indenture Act relating to the release of property or securities from the lien and security interest created under the Pledge Agreement and relating to the substitution therefore of any property or securities to be subjected to the lien and security interest created under the Pledge Agreement to be complied with.

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ARTICLE 15.

SUBSIDIARY GUARANTEES

SECTION 15.1.Guarantee.

(a)After the consummation of the Acquisition, subject to this Article XV, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of Securities authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, that:

(1)the principal of, premium and interest on the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

(2)in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)  The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.  Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.

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(c)If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

(d)Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article IV hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article IV hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee.  The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Subsidiary Guarantee.

SECTION 15.2.Limitation on Guarantor Liability.

Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee.  To effectuate the foregoing intention, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article XV, result in the obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.

SECTION 15.3.Execution and Delivery of Subsidiary Guarantee.

To evidence its Subsidiary Guarantee set forth in Section 15.1, within thirty (30) Business Days following the consummation of the Acquisition, each Guarantor hereby agrees that a notation of such Subsidiary Guarantee substantially in the form attached as Exhibit D hereto will be endorsed by an officer of such Guarantor on each Security authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its officers.

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Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 15.1 will remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Subsidiary Guarantee.

If an officer whose signature is on this Indenture or on the Subsidiary Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee will be valid nevertheless.

The delivery of any Security by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the Guarantors.

In the event that the Company creates or acquires any Domestic Subsidiary after the date of this Indenture, the Company will cause such Domestic Subsidiary to comply with this Article XV, to the extent applicable.

SECTION 15.4.Guarantors May Consolidate, etc., on Certain Terms; Releases.

In the event of any sale or other disposition of all or substantially all of the assets of any Guarantor, by way of (a) merger, consolidation or otherwise, (b) a sale or other disposition of all of the Capital Stock of any Guarantor, in each case to a Person that is not (either before or after giving effect to such transactions) the Company or a Subsidiary of the Company, or (c) upon satisfaction and discharge of this Indenture in accordance with Section 3.1, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the Corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the foregoing clause shall not apply to any sale or disposition that constitutes a Fundamental Change.  Upon delivery by the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, the Trustee will execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Subsidiary Guarantee.

Any Guarantor not released from its obligations under its Subsidiary Guarantee will remain liable for the full amount of principal of and interest on the Securities and for the other obligations of any Guarantor under this Indenture as provided in this Article XV.

[Signature Page Follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.

ACQUICOR TECHNOLOGY INC.
By	/s/ Gilbert F. Amelio
	Name: Gilbert F. Amelio Title: Chairman and Chief Executive Officer

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
By	/s/ Richard Prokosch
	Name: Richard Prokosch
	Title: Vice-President

EXHIBIT A

[FORM OF FACE]

[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED SECURITY OTHER THAN ANY RESTRICTED GLOBAL SECURITY:

THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (2) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO ACQUICOR TECHNOLOGY INC.) OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR OTHER EXEMPTIONS THEREFROM.

[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED GLOBAL SECURITY:

THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY BENEFICIAL INTEREST IN THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF SUCH BENEFICIAL INTEREST IN THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR OTHER EXEMPTIONS THEREFROM.

EACH BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE SECURITIES EVIDENCED BY THIS NOTE (INCLUDING ANY PARTICIPANT IN THE DEPOSITARY HOLDING THIS NOTE THAT IS SHOWN AS HOLDING SUCH AN INTEREST ON THE RECORDS OF SUCH DEPOSITARY AND EACH BENEFICIAL OWNER THAT HOLDS THROUGH ANY SUCH PARTICIPANT) AGREES FOR THE BENEFIT OF ACQUICOR TECHNOLOGY INC. THAT (A) ANY BENEFICIAL INTEREST IN THIS NOTE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (2) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO ACQUICOR TECHNOLOGY INC.) OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS AND THAT (B) THE BENEFICIAL OWNER WILL, AND EACH SUBSEQUENT BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE SECURITIES EVIDENCED BY THIS NOTE OR ANY COMMON STOCK ISSUABLE UPON CONVERSION THEREOF IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY BENEFICIAL INTEREST IN THE NOTE OR SUCH COMMON STOCK ISSUABLE UPON ITS CONVERSION FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

[THE FOLLOWING LEGENDS SHALL APPEAR ON THE FACE OF EACH RESTRICTED SECURITY:

THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]

THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS DEFINED IN THE INDENTURE) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION AGREEMENT.

[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.]

[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY FOR WHICH THE DEPOSITORY TRUST COMPANY IS TO BE THE DEPOSITARY:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

ACQUICOR TECHNOLOGY INC.

8% CONVERTIBLE SENIOR NOTE DUE DECEMBER 31, 2011

No. ___________ U.S.$ ___________

CUSIP No.

Acquicor Technology Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company,” which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of ____________ United States Dollars (U.S.$ __________)[if this Security is a Global Security, then insert — (which principal amount may from time to time be increased or decreased to such other principal amounts (which, taken together with the principal amounts of all other Outstanding Securities, shall not exceed $__________________ in the aggregate at any time, [by adjustments made on the records of the Trustee hereinafter referred to in accordance with the Indenture)]] on December 31, 2011, unless repurchased or redeemed on an earlier date.

Interest Payment Dates:	June 30 and December 31
Regular Record Dates:	June 15 and December 15

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

SIGNATURE PAGE FOLLOWS

IN WITNESS WHEREOF, the Company has caused this Security to be duly executed.

ACQUICOR TECHNOLOGY INC.
By:
	Name:
	Title:

Attest:

________________________________

Name:

Dated: _________________

This is one of the Securities referred to in the within-mentioned Indenture.

U.S. BANK NATIONAL ASSOCIATION,

as Trustee

By: _____________________________________

Authorized Signatory

[FORM OF REVERSE]

Indenture; Defined Terms. This Security is one of a duly authorized issue of securities of the Company designated as its “8% Convertible Senior Notes due December 31, 2011” (herein called the “Securities”), limited in aggregate principal amount to U.S.$145,000,000, issued and to be issued under an Indenture dated as of December 19, 2006 (herein called the “Indenture”) between the Company and U.S. Bank National Association, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture

Payments of Interest. The Company promises to pay interest on the principal amount of this Security, from December 19, 2006, or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, semiannually in arrears on June 30 and December 31 in each year (each, an “Interest Payment Date”), commencing June 30, 2007, at the rate of 8% per annum, until the principal hereof is due, and at the rate then in effect on any overdue principal and premium, if any, and, to the extent permitted by law, on any overdue interest. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be June 15 and December 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any interest not punctually paid or duly provided for shall be payable as provided in the Indenture. Notwithstanding the foregoing, in the event of a Special Mandatory Redemption, Escrow Interest shall be paid as provided in Section 14.10 of the Indenture.

Method of Payment. Payment of interest or Additional Interest on this Security may be made at the option of the Company by United States Dollar check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or, upon written application by the Holder to the Security Registrar setting forth wire instructions not later than the relevant Record Date, by wire transfer to a United States dollar account (such a wire transfer to be made only to a Holder of an aggregate principal amount of Registered Securities in excess of U.S.$2,000,000 and only if such Holder shall have furnished wire instructions in writing to the Trustee no later than 15 days prior to the relevant payment date) maintained by the payee.

Payments of Principal. Payments of principal shall be made upon the surrender of this Security at the Corporate Trust Office or at such other office or agency of the Company as may be designated by it for such purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, or at such other offices or agencies as the Company may designate, by United States Dollar check drawn on, or wire transfer to, a United States Dollar account (such a wire transfer to be made only to a Holder of an aggregate principal amount of Registered Securities in excess of U.S.$2,000,000 and only if such Holder shall have furnished wire instructions in writing to the Trustee no later than 15 days prior to the relevant payment date) maintained by the payee.

Sinking Fund. No sinking fund is provided for the Securities.

Tax. Except as specifically provided herein and in the Indenture, the Company shall not be required to make any payment with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein.

In any case where the due date for the payment of the principal of, premium, if any, interest or Additional Interest, if any, on any Security or the last day on which a Holder of a Security has a right to convert its Security shall be, at any Place of Payment or Place of Conversion, as the case may be, a day on which banking institutions at such Place of Payment or Place of Conversion are authorized or obligated by law or executive order to close, then payment of principal, premium, if any, or interest or delivery for conversion of such Security need not be made on or by such date at such place but may be made on or by the next succeeding day at such place which is not a day on which banking institutions are authorized or obligated by law or executive order to close, with the same force and effect as if made on the date for such payment or the date fixed for repurchase, or by such last day for conversion, and no interest shall accrue on the amount so payable for the period from and after such due date. Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.

Redemption of Securities at Option of Company. All or any portion of the Securities are subject to redemption at the option of the Company at any time on or after December 31, 2009 (“Optional Redemption”), upon not less than twenty (20) nor more than thirty (30) days notice to the Holders prior to the redemption date specified in such notice (the “Optional Redemption Date”). The redemption price (the “Optional Redemption Price”) (i) on or prior to December 30, 2010, shall equal 102% of the principal amount, together with accrued and unpaid interest to, but excluding, the Optional Redemption Date or (ii) beginning on December 31, 2010 and thereafter, shall equal 100% of the principal amount, together with accrued and unpaid interest to, but excluding, the Optional Redemption Date. The Securities shall not be redeemable at the option of the Company other than pursuant to Article XIV of the Indenture. The Securities are also subject to mandatory redemption upon the occurrence of a Special Mandatory Redemption Event pursuant to Section 14.10 of the Indenture.

Conversion at the Option of the Holder. Upon compliance with the provisions of the Indenture, the Holder of this Security is entitled, at its option, at any time after consummation of the Acquisition and on or before the close of business on December 31, 2011, or in case the Holder of this Security has exercised his right to require the Company to repurchase or redeem this Security or such portion hereof, then in respect of this Security until and including, but (unless the Company defaults in making the payment due upon repurchase or redemption) not after, the close of business on the date two Business Days immediately preceding the Repurchase Date or the Redemption Date, as applicable, to convert this Security or any portion of the principal amount hereof that is an integral multiple of U.S.$1,000 (provided that the unconverted portion of such principal amount is U.S.$1,000 or any integral multiple of U.S.$1,000 in excess thereof) into fully paid and nonassessable shares of Common Stock of the Company at the initial Conversion Rate per U.S.$1,000 principal amount of Securities (or at the current adjusted Conversion Rate, if any adjustment has been made as provided in the Indenture) by surrender of this Security, duly endorsed or assigned to the Company or in blank.

In case such surrender shall be made during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date (except if this Security or a portion thereof is repurchasable or redeemable, on a Repurchase Date or a Redemption Date, respectively, with the consequence that the conversion right of such Security would terminate between such Regular Record Date and the close of business on such Interest Payment Date), also accompanied by payment in New York Clearing House or other funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of this Security then being converted and also the conversion notice hereon duly executed, to the Company at the Corporate Trust Office, or at such other office or agency of the Company, subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any Conversion Agent (as defined below) as may be designated by it for such purpose in the Borough of Manhattan, The City of New York, or at such other offices or agencies as the Company may designate.

The interest so payable on such Interest Payment Date, with respect to any Security (or portion thereof, if applicable) that is surrendered for conversion during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date, shall be paid to the Holder of such Security as of such Regular Record Date. Interest payable in respect of any Security surrendered for conversion on or after an Interest Payment Date shall be paid to the Holder of such Security as of the next preceding Regular Record Date, notwithstanding the exercise of the right of conversion.

At any time prior to the Final Maturity, the Company shall have the option to unilaterally and irrevocable elect to settle its obligations to deliver shares of Common Stock with respect to the Securities to be converted following such election, in cash, pursuant to Section 10.2 of the Indenture. Except as provided in this paragraph and subject to the Indenture, no cash payment or adjustment shall be made upon any conversion on account of any interest accrued from the Interest Payment Date next preceding the conversion date, in respect of any Security (or part thereof, as the case may be) surrendered for conversion, or on account of any dividends on the Common Stock issued upon conversion.

The Company’s delivery to the Holder of the number of shares of Common Stock, if applicable, cash, or combination of cash and Common Stock (and cash in lieu of fractions thereof, as provided in this Indenture) into which a Security is convertible and any rights pursuant to Section 10.5(m) of the Indenture will be deemed to satisfy the Company’s obligation to pay the principal amount of the Security. The Company shall (i) deliver shares of Common Stock, if any, deliverable upon conversion of all Securities into Common Stock to the Conversion Agent no later than the third Business Day following the Conversion Date, or (ii) in the event the Company elects to settle in cash all or part of its obligation to deliver shares of Common Stock with respect to Securities to be converted, deliver shares of Common Stock and cash, deliverable upon conversion of the Securities no later than the third Business Day following the end of the Applicable Conversion Reference Period.

No fractions of shares or scrip representing fractions of shares will be issued on conversion, but instead of any fractional interest (calculated to the nearest 1/100th of a share) the Company shall pay a cash adjustment as provided in the Indenture.

The Conversion Rate is subject to adjustment as provided in the Indenture. In addition, the Indenture provides that in case of certain consolidations or mergers to which the Company is a party or the conveyance, transfer, sale or lease of all or substantially all of the property and assets of the Company, the Indenture shall be amended, without the consent of any Holders of Securities, so that this Security, if then Outstanding, will be convertible thereafter, during the period this Security shall be convertible as specified above, only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, transfer, sale or lease by a holder of the number of shares of Common Stock of the Company into which this Security could have been converted immediately prior to such consolidation, merger, conveyance, transfer, sale or lease (assuming such holder of Common Stock is not a Constituent Person or an Affiliate of a Constituent Person, failed to exercise any rights of election and received per share the kind and amount received per share by a plurality of Non-electing Shares). No adjustment in the Conversion Rate will be made until such adjustment would require an increase or decrease of at least one percent of such rate; provided that any adjustment that would otherwise be made will be carried forward and taken into account in the computation of any subsequent adjustment.

Special Mandatory Redemption. Pending approval of the Acquisition and the Authorized Share Increase by the Company’s stockholders, the gross proceeds from the offering of the Securities shall be placed into an escrow account (the “Escrow Account”) held pursuant to the terms of the Escrow Agreement. The Securities shall be subject to a special mandatory redemption at a redemption price of 100% of the principal amount plus any interest income earned on the funds in the Escrow Account in the event the Acquisition and/or the Authorized Share Increase is rejected by the Company’s stockholders or not approved by the Company’s stockholders on or prior to May 31, 2007.

Optional Repurchase Upon Fundamental Change. If a Fundamental Change occurs, the Holder of this Security, at the Holder’s option, shall have the right, in accordance with the provisions of the Indenture, to require the Company to repurchase this Security (or any portion of the principal amount hereof that is equal to U.S. $1,000 or any greater integral multiple of U.S.$1,000) for cash at a Repurchase Price equal to 100% of the principal amount thereof plus interest and Additional Interest, if any, accrued to, but excluding, the Repurchase Date plus the Make Whole Premium, if any.

[The following paragraph shall appear in each Registered Security that is not a Global Security:

In the event of repurchase, redemption or conversion of this Security in part only, a new Registered Security or Registered Securities for the unrepurchased, unredeemed or unconverted portion hereof will be issued in the name of the Holder hereof.]

[The following three paragraphs shall appear in each Security that is a Restricted Security.]

Registration Rights Agreement. The Holder of this Security [if this Security is a Global Security, then insert—(including any Person that has a beneficial interest in this Security)] and the Common Stock issuable upon conversion hereof is entitled to the benefits of a Registration Rights Agreement, dated as of December 19, 2006 (the “Registration Rights Agreement”), executed by the Company. Pursuant to the Registration Rights Agreement, the Company has agreed for the benefit of the Holders from time to time of Registered Securities and the Common Stock issuable upon conversion thereof, in each case, that are Registrable Securities, at the Company’s expense, (a) to file on or before 90 days following the date the Company’s stockholders approve the Acquisition, a shelf registration statement (the “Shelf Registration Statement”) with the Commission with respect to resales of the Registrable Securities, (b) thereafter to use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission on or before 180 days after the approval of the Acquisition, and (c) to use its reasonable best efforts to maintain such Shelf Registration Statement continuously effective under the Securities Act until the earlier of (1) the sale under the Shelf Registration Statement of all the Registrable Securities registered thereunder, (2) all of the Holders of Registrable Securities are able to sell all Registrable Securities immediately without restriction pursuant to Rule 144(k) under the Securities Act or any successor rule thereto, or (3) all Registrable Securities have ceased to be outstanding. Pursuant to the Registration Rights Agreement, if the Company fails to have the Shelf Registration Statement declared effective on or prior to the 180^h day following the approval of the Acquisition or to keep the Shelf Registration Statement effective thereafter and certain other circumstances as described in the Registration Rights Agreement, the Company has agreed to pay additional interest for the duration of such failure, from and including the date of such failure. During the first 90 days following the occurrence of such failure, the Additional Interest will be in the amount of 0.25% per annum, increasing at the end of such 90-day period by 0.25% per annum, subject to a maximum rate of 0.50% per annum until the event giving rise to the Additional Interest has been cured.

If the Holder of this Security[if this Security is a Global Security, then insert— (including any Person that has a beneficial interest in this Security)] elects to sell this Security pursuant to the Shelf Registration Statement then, by its acceptance hereof, such Holder of this Security agrees to be bound by the terms of the Registration Rights Agreement relating to the Registrable Securities which are the subject of such election.

Subject to certain limitations in the Indenture, at any time when the Company is not subject to Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as amended, upon the request of a Holder of a Security or the holder of shares of Common Stock issued upon conversion thereof, the Company will promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such Holder of Securities or such holder of shares of Common Stock issued upon conversion of Securities, or to a prospective purchaser of any such security designated by any such Holder or holder, as the case may be, to the extent required to permit compliance by such Holder or holder with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act” ), in connection with the resale of any such security. “Rule 144A Information” shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).

Event of Default and Remedies. If an Event of Default shall occur and be continuing, the principal of all the Securities, together with accrued and unpaid interest, if any, and Additional Interest, if any, to the date of declaration, may be declared due and payable in the manner and with the effect provided in the Indenture.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and furnished the Trustee reasonable indemnity, the Trustee shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity, and the Trustee has not received any direction inconsistent with such written request from the Holders of a majority of the aggregate principal amount of the Outstanding Securities during such 60-day period. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof, premium, if any, Additional Interest, if any, or interest hereon on or after the respective due dates expressed herein or for the enforcement of the right to convert, redeem or repurchase this Security as provided in the Indenture.

Subsidiary Guarantees. After the consummation of the Acquisition, the Securities will be guaranteed by each of the Company’s current and future Domestic Subsidiaries. The obligations of each Subsidiary Guarantor shall be limited as necessary to prevent the guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law.

Amendment, Supplement and Waiver. The Indenture permits, with certain exceptions as therein provided, the amendment thereof, the Securities and the Subsidiary Guarantees and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture, the Securities or the Subsidiary Guarantees at any time by the Company and the Trustee with the written consent of the Holders of a majority in principal amount of the Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Company with certain provisions of the Indenture, the Securities and the Subsidiary Guarantees and certain past defaults under the Indenture, the Securities and the Subsidiary Guarantees and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or such other Security.

Denominations; Transfer; Exchange. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of Registered Securities is registrable on the Security Register upon surrender of a Registered Security for registration of transfer at the Corporate Trust Office of the Trustee or at such other office or agency of the Company as may be designated by it for such purpose in the Borough of Manhattan, The City of New York, or at such other offices or agencies as the Company may designate, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing, and thereupon one or more new Registered Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees by the Registrar. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to recover any tax or other governmental charge payable in connection therewith.

[The following paragraph shall appear in each Global Security:

In the event of a deposit or withdrawal of an interest in this Security, including an exchange, transfer, repurchase, redemption or conversion of this Security in part only, the Trustee, as custodian of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the Applicable Procedures.]

Persons Deemed Owners. Prior to due presentation of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner thereof for all purposes, whether or not such Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

Governing Law. The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York, United States of America, including, without limitation, Section 5-1401 of the New York General Obligations Law.

Authentication. Unless the certificate of authentication has been executed by the Trustee or an Authenticating Agent by the manual signature of one of their respective authorized signatories, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

Trust Indenture Act. Prior to the filing of the Shelf Registration Statement pursuant to the Registration Rights Agreement, the Company will not comply with Section 3.14(d) of the Trust Indenture Act.

No Recourse. An incorporator, director, officer, Affiliate or stockholder of the Company or a guarantor, solely by reason of this status, shall not have any liability for any obligations of the Company or any Guarantor under the Securities, the Indenture, the Subsidiary Guarantees or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. The waiver and release does not extend to any claim arising under any federal or state securities laws.

EXHIBIT B

ELECTION OF HOLDER TO REQUIRE REPURCHASE

1.Pursuant to Section 12.1 of the Indenture, the undersigned hereby elects to have the principal amount of this Security set forth below repurchased by the Company.

2.The undersigned hereby directs the Trustee or the Company to pay it or an amount in cash equal to 100% of the principal amount to be repurchased (as set forth below), plus interest accrued to the Repurchase Date or, at the Company’s election, Common Stock, valued as set forth in the Indenture.

Dated: ___________
	Signature
	Signature Guaranteed

Principal amount to be repurchased:

________________________________

(must be equal to U.S.$1,000 or any greater

integral multiple of U.S.$1,000):

Remaining principal amount following such repurchase:

______________________________________

NOTICE: The signature to the foregoing election must correspond to the name as written upon the face of this Security in every particular, without alteration or any change whatsoever.

EXHIBIT C

CONVERSION NOTICE

The undersigned Holder of this Security hereby irrevocably exercises the option to convert this Security, or any portion of the principal amount hereof (which is an integral multiple of U.S.$1,000) below designated, into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security and directs that such shares, together with a check in payment for any fractional share and any Securities representing any unconverted principal amount hereof, be delivered to and be registered in the name of the undersigned unless a different name has been indicated below. If shares of Common Stock or Securities are to be registered in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of interest accompanies this Security.

Dated: _____________
	Signature

If shares or Registered Securities are to be	If only a portion of the Securities is to be
registered in the name of a Person other than	converted, please indicate:
the Holder, please print such Person’s
name and address	1.       Principal amount to be converted:
	U.S.$_______________________
	(any integral multiple of U.S.$1,000)
Address	2.        Principal amount and denomination of
	Registered Securities representing
	unconverted principal amount to be
Social Security or other Taxpayer	issued:
Identification Number, if any
	Amount: U.S.$________________
Signature Guaranteed

EXHIBIT D

[FORM OF NOTATION OF GUARANTEE]

For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of December 19, 2006 (the “Indenture”) Acquicor Technology Inc. (the “Company”), the Guarantors (as defined therein) and U.S. Bank National Association, as trustee (the “Trustee”), (a) the due and punctual payment of the principal of, premium and interest on the Securities (as defined in the Indenture), whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Securities, if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.  The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 15 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee.  Each Holder of Securities, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such purpose.

[NAME OF GUARANTOR(S)]

By:

Name:

Title:

EXHIBIT E

[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                           , 200   , among                          (the “Guaranteeing Subsidiary”), a subsidiary of Acquicor Technology Inc. (or its permitted successor), a Delaware corporation (the “Company”), the other Guarantors (as defined in the Indenture referred to herein) and U.S. Bank National Association, as trustee under the indenture referred to below (the “Trustee”).

RECITALS

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of December 19, 2006 providing for the issuance of 8% Convertible Senior Notes due 2011 (the “Securities”);

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Securities and the Indenture on the terms and conditions set forth herein (the “Subsidiary Guarantee”); and

WHEREAS, pursuant to Article IX of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:

1.CAPITALIZED TERMS.  Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2.AGREEMENT TO GUARANTEE.  The Guaranteeing Subsidiary hereby agrees as follows:

(a) Along with all Guarantors named in the Indenture, to jointly and severally Guarantee to each Holder of Securities authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, the Securities or the obligations of the Company hereunder or thereunder, that:

(i) the principal of, and premium and interest on the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

(ii) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. 

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately.

(b)  The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.

(c) The following is hereby waived:  diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever.

(d) This Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and the Indenture, and the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.

(e) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(f)  The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.

(g) As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 4 of the Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 4 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee.

(h) The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.

(i) Pursuant to Section 15.2 of the Indenture, after giving effect to any maximum amount and all other contingent and fixed liabilities that are relevant under any applicable bankruptcy or fraudulent conveyance laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 15 of the Indenture, this new Subsidiary Guarantee shall be limited to the maximum amount permissible such that the obligations of such Guarantor under this Subsidiary Guarantee will not constitute a fraudulent transfer or conveyance.

3.EXECUTION AND DELIVERY.  Each Guaranteeing Subsidiary agrees that the Subsidiary Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Subsidiary Guarantee.

4.GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS; RELEASES. Nothing contained in the Indenture or in any of the Securities shall prevent any sale or other disposition of all or substantially all of the assets of the Guaranteeing Subsidiary, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the capital stock of any Guarantor; provided, that such sale or disposition does not constitute a Fundamental Change. Upon delivery by the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of the Indenture, the Trustee will execute any documents reasonably required in order to evidence the release of the Guaranteeing Subsidiary from its obligations under its Subsidiary Guarantee.

5.NO RECOURSE AGAINST OTHERS.  No past, present or future director, officer, employee, incorporator, stockholder, member, managing member, partner or agent of the Guaranteeing Subsidiary, in such capacity, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Securities, any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of the Securities by accepting Securities waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Securities.  Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.

6. THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA, INCLUDING, WITHOUT LIMITATION, THE NEW YORK GENERAL OBLIGATIONS LAW §5-1401.

7.COUNTERPARTS.  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

8.EFFECT OF HEADINGS.  The Section headings herein are for convenience only and shall not affect the construction hereof.

9.THE TRUSTEE.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

Dated:                     , 20
	[GUARANTEEING SUBSIDIARY]
	By:
	Name:
	Title:
	ACQUICOR TECHNOLOGY INC.
	By:
	Name:
	Title:
	[EXISTING GUARANTORS]
	By:
	Name:
	Title:
	U.S. BANK NATIONAL ASSOCIATION,
	as Trustee
	By:
		Authorized Signatory

EX-4.2

EXHIBIT 4.2

EXECUTION VERSION

ESCROW AGREEMENT

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 Needham & 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 iswilling 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 Companyand 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 #31846V732meets 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 tothe 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 Companyshall 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 ofcompetent 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:

Acquicor Technology Inc.

4910 Birch Street

Suite 102

Newport Beach, CA 92660

Attn: General Counsel

Facsimile No.: 949-266-9020

Telephone No.: 949-759-3434

With a copy to:

Cooley Godward Kronish LLP

101 California Street

San Francisco, California 94111

Attn: Gian-Michele a Marca

Facsimile No.: 415-693-2222

Telephone No.: 415-693-2148

If to the Trustee:

U.S. Bank National Association

60 Livingston Ave.

St. Paul, Minnesota 55107

Attn: Richard Prokosch

Facsimile No.: (651) 495-8097

Telephone No.: (651) 495-3918

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If to the Collateral Agent:

U.S. Bank National Association

60 Livingston Ave.

St. Paul, Minnesota 55107

Attn: Richard Prokosch

Facsimile No.: (651) 495-8097

Telephone No.: (651) 495-3918

If to the Initial Purchasers:

c/o CRT Capital Group LLC

262 Harbor Drive

Stamford, CT 06902

Attn: Christopher Chase

Facsimile No.: (203) 569-6890

Telephone No.: (203) 569-6824

With a copy to:

Bingham McCutchen LLP

150 Federal Street

Boston, Massachusetts 02110-1726

Attn: John R. Utzschneider, Esq.

Fax No.: (617) 951-8736

Telephone No.: (617) 951-8852

If to the Escrow Agent:

U.S. Bank National Association

60 Livingston Ave.

St. Paul, Minnesota 55107

Attn: Richard Prokosch

Facsimile No.: (651) 495-8097

Telephone No.: (651) 495-3918

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.

ACQUICOR TECHNOLOGY INC.
By:	/s/ Gilbert F. Amelio
	Name: Gilbert F. Amelio
	Title: Chairman and Chief Executive Officer

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
By:	/s/ Richard Prokosch
	Name: Richard Prokosch
	Title: Vice President

U.S. BANK NATIONAL ASSOCIATION, AS COLLATERAL AGENT
By:	/s/ Richard Prokosch
	Name: Richard Prokosch
	Title: Vice President

U.S. BANK NATIONAL ASSOCIATION, AS ESCROW AGENT
By:	/s/ Richard Prokosch
	Name: Richard Prokosch
	Title: Vice President

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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 #31846V732.

A-1

Schedule B

Telephone Number for Call-backs and Person

Designated to Confirm Funds Transfer Instructions

If to the Company:

Name	Telephone Number
General Counsel	(949) 759-3434

If to the Initial Purchasers:

Name	Telephone Number
Christopher Chase	(203) 569-6824

If to the Trustee:

Name	Telephone Number
Richard Prokosch	(651) 495-3918

B-1

ANNEX A

ACQUICOR TECHNOLOGY INC.

[___________], 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

ACQUICOR TECHNOLOGY INC.

[___________], 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. 

ACQUICOR TECHNOLOGY INC.

By:

Name:

Title:

ANNEX-B-2

EX-4.3

Exhibit 4.3

Execution Version

PLEDGE AND SECURITY AGREEMENT

This PLEDGE AND SECURITY AGREEMENT (as amended, supplemented, restated or otherwise modified from time to time, this “Agreement”) dated as of December 19, 2006 by and between Acquicor Technology, Inc., a Delaware corporation (the “Grantor”) and U.S. Bank National Association, a banking association, acting in the capacity of collateral agent for the benefit of the Secured Parties (as defined below) (the “Collateral Agent”). Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Indenture (as hereinafter defined)

RECITALS:

WHEREAS, Grantor and U.S. Bank National Association, as trustee (the “Trustee”), have entered into that certain Indenture dated as of the date hereof (as amended, supplemented, restated or otherwise modified from time to time, the “Indenture”), pursuant to which the Grantor is issuing on the date hereof $145,000,000 in aggregate principal amount of its 8% Convertible Senior Notes due December 31, 2011 (the “Notes”);

WHEREAS, the Grantor, the Collateral Agent, the Trustee and U.S. Bank National Association, as escrow agent (the “Escrow Agent”) have entered into that certain Escrow Agreement dated as of the date hereof (as amended, supplemented, restated or otherwise modified from time to time, the “Escrow Agreement”), pursuant to which the Grantor has placed the gross proceeds of the Notes into a securities account (the “Pledge Account”) maintained at the Securities Intermediary’s account office located at 60 Livingston Avenue, St. Paul, MN 55107, registered in the name of the Grantor, as entitlement holder, and designated as Account No. 108067001, Reference: “Acquicor 8% Convertible Senior Notes”;

WHEREAS, as security for the full and final payment and performance of the Secured Obligations (as defined below), the Grantor has entered into this Agreement, pursuant to which the Grantor will grant a security interest in or pledge the Collateral (as defined below), which Collateral is governed by the terms of the Escrow Agreement; and

WHEREAS, the Grantor will direct the Escrow Agent to deliver control of the Collateral to the Collateral Agent and to otherwise take such actions Collateral Agent may reasonably require to provide the Collateral Agent with a perfectedsecurity interest in the Collateral.

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AGREEMENT:

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants contained herein, the Grantor and Collateral Agent agree as follows:

1.DEFINITIONS. All capitalized terms used herein without definition shall have the meanings given to such terms in the Indenture. As used herein, “UCC” means the Uniform Commercial Code as enacted and in effect in the State of New York. Terms defined in the UCC and not otherwise defined herein have the meanings specified in the UCC. The term “instrument,” as used herein, means “instrument” as defined in Article 9 of the UCC. The following terms shall have the meanings set forth below:

“Control Agreement” shall mean the Securities Account Control Agreement dated as of the date hereof among the Grantor, the Collateral Agent and the Securities Intermediary, in form and substance satisfactory to the Collateral Agent, and any amendment, modification, supplement or restatement thereof.

“Initial Purchasers” shall mean CRT Capital Group LLC and Needham & Company, LLC or such other subsequent holders of the Notes.

“Securities Intermediary” shall mean U.S. Bank National Association, a national banking association, acting in the capacity of securities intermediary.

“Secured Parties” shall mean the Initial Purchases and any subsequent Holders.

2.THE SECURITY INTEREST. In order to secure the payment and performance in full of all the Secured Obligations (as hereinafter defined), the Grantor hereby pledges and grants to the Collateral Agent a continuing security interest in, and collaterally assigns to the Collateral Agent its interest in, the following properties, assets and rights of the Grantor, wherever located, whether now owned or hereafter acquired or arising (all of the same being hereinafter called, collectively, the “Collateral”):

(a)Pledge Account. The Pledge Account itself, all rights of the Grantor against the Securities Intermediary or any clearing broker for the Securities Intermediary in connection with the Pledge Account, and all securities, stocks, bonds, mutual fund shares, United States Treasury instruments and other investment property and financial assets now or hereafter reflected as maintained in the Pledge Account, together with any and all proceeds, replacements or substitutions therefore and including without limitation, the following types of assets maintained in the Pledge Account (collectively, the “PledgedSecurities”):

(i)Securities. (A) All securities, certificated or uncertificated, including without limitation all stocks, bonds, U.S. Treasury bills or instruments, securities entitlements, certificates of deposit or other time deposits, and investment company or other mutual or money market fund shares, in each case now or hereafter owned by the Grantor or by third parties who have authorized the Grantor to pledge such securities for indebtedness outstanding to the Grantor and which now are or hereafter may be maintained in or credited to the Pledge Account; and (B) any security entitlements and any and all assets or property from time to time credited to the Pledge Account, including without limitation any cash deposits and any other assets of the types described in clause (A) above, evidenced or appearing on the books and records of the Securities Intermediary, including without limitation items in transit by mail or carrier or in the possession of any third party (including any Federal Reserve Bank) acting for safekeeping, as agent for collection or transmission, or otherwise;

2

(ii)Instruments. All instruments, whether negotiable or non-negotiable, tangible or in electronic form, made payable to or endorsed to the Grantor or in which the Grantor has an interest, including without limitation, due bills, dividend payment claims, checks and other writings of every kind or description evidencing a right to the payment of money however established or created and which now are or hereafter may be maintained in or credited to the Pledge Account;

(iii)Other Property. All other property of any kind, tangible or intangible, of the Grantor maintained in or comprising the Pledge Account at any time or from time to time, including without limitation all deposit accounts, securities accounts, cash, documents, letter of credit rights, advices of credit, warehouse or other receipts, insurance claims and proceeds, chattel paper (tangible or electronic), contract rights or rights to the payment of money;

(b)Rights and Remedies. All remedies and privileges pertaining to the Collateral, subject to the terms hereof; and

(c)Proceeds. All proceeds of every kind or nature, and in whatever form (including both cash and non-cash) received now or in the future upon the sale or other disposition of the Collateral, including without limitation insurance proceeds, all cash payments or other property received as dividends, interest, or other proceeds, distribution rights or accretions of any kind, and any and all cash or non-cash property received in exchange for or in respect of any of the above described Collateral pursuant to any sale, disposition, merger, reorganization, exchange, stock split, dividend, distribution or similar event or transaction.

The foregoing Collateral shall be treated as “financial assets” as defined in Article 8 of the UCC and shall include all “investment property” as defined in Article 9 of the UCC.

3.OBLIGATIONS. The Grantor hereby agrees that the Collateral shall be security for the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise of any and allobligations and liabilities of every kind, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, under or in connection with the Notes, the Indenture or this Agreement (all of the foregoing, the “Secured Obligations”).

4.RIGHTS AND DUTIES AS TO COLLATERAL.

(a)The Collateral Agent hereby agrees that it shall only deliver a Notice of Exclusive Control (as defined in the Control Agreement), or give to the Securities Intermediary any entitlement orders and other instructions as to the transfer, redemption, withdrawal, disposition or investment of any of the Collateral, after the occurrence and continuance of an Event of Default.

3

(b)The Collateral Agent may at any time collect and receive, and at its option apply to the Secured Obligations after the occurrence and continuance of an Event of Default, any distribution in cash or otherwise payable with respect to the Collateral and may demand, sue for, receive and collect or make any compromise or settlement with reference to any Collateral. At its option, the Collateral Agent may pay for insurance for the Collateral and any charges, taxes, assessments, liens, and other reasonable expenses as it deems reasonably desirable to protect, maintain, preserve or collect the Collateral and all such expenses incurred will be chargeable to the Collateral. The Collateral Agent, at any time, may have the Collateral transferred into its name or that of a nominee and receive the income thereon and notify the obligor(s) on any Collateral to make payments due, or to become due, directly to the Collateral Agent. For the purpose of perfecting the Collateral Agent’s security interest in the Collateral, the Grantor will hold the Collateral in the Pledge Account subject to the Control Agreement. In order to perfect its security interest in the Collateral, the Collateral Agent may register the pledge of any such Collateral with its issuer by sending them a copy of this Agreement; notify a financial intermediary (including itself), a clearing corporation or third person of its security interest by sending them a copy of this Agreement; or transfer US government securities recorded on its books in the name of the Grantor to the Collateral Agent’s own account or that of a nominee. Beyond the exercise of reasonable care to assure the safe custody of Collateral, the Collateral Agent shall be under no duty or liability to collect the Collateral or the income thereon or to protect or preserve rights pertaining thereto, and shall be relieved of all responsibility for the Collateral upon surrendering it to the Grantor. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if the Collateral Agent accords such Collateral treatment substantially equal to that which the Collateral Agent accords to its own property. The Grantor agrees to indemnify and hold the Collateral Agent harmless against any loss or damage the Collateral Agent may suffer and any expense it may incur or claim asserted against it as a result of dealing with the Collateral or any other action it may take in reliance upon any provision of this Agreement except for any such portion of any such loss or damage caused solely by reason of the Collateral Agent’s gross negligence or willful misconduct. Upon demand, the Grantor will pay to the Collateral Agent the amount of any and all reasonable out-of-pocket expenses which the Collateral Agent may incur in connection with (i) the exercise or enforcement of any of the rights of the Collateral Agent under this Agreement or (ii) the failure by the Grantor to perform or observe any of its agreements or obligations under this Agreement.

(c)Anything herein to the contrary notwithstanding, the Grantor shall remain liable under each contract or agreement comprised in the Collateral to be observed or performed by the Grantor thereunder. The Collateral Agent shall not have any obligation or liability under any such contract or agreement by reason of or arising out of this Agreement or the receipt by the Collateral Agent of any payment relating to any of the Collateral, nor shall the Collateral Agent be obligated in any manner to perform any of the obligations of the Grantor under or pursuant to any such contract or agreement, to make inquiry as to the nature or sufficiency of any payment received by the Collateral Agent in respect of the Collateral or as to the sufficiency of any performance by any party under any such contract or agreement, to present or fileany claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to the Collateral Agent or to which the Collateral Agent may be entitled at any time or times.

(d)With respect to any Collateral consisting of securities, whether certificated or uncertificated, or other investment property now or hereafter held by the Grantor through the Securities Intermediary, the Grantor shall cause the Securities Intermediary, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, to agree to comply with entitlement orders or other instructions from the Collateral Agent to the Securities Intermediary as to such securities or other investment property, without further consent of the Grantor, in accordance with and pursuant to the terms of the Control Agreement. In order to perfect its security interest in the Collateral, the Collateral Agent may transfer U.S. government securities recorded on its books in the name of the Grantor to the Collateral Agent’s own account or that of a nominee.

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(e)The parties hereto hereby agree that so long as no Event of Default has occurred, the Grantor, through the Escrow Agent, shall be permitted to invest the Collateral pursuant to the terms set forth in the Escrow Agreement.

5.REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE GRANTOR. The Grantor hereby represents, warrants, and covenants as follows:

(a)The Grantor is the legal and equitable owner of the Collateral and holds the Collateral free and clear of all liens, charges, encumbrances and security interests of every kind and nature whatsoever except for the security interest granted hereunder to the Collateral Agent; provided, however, that the Collateral is governed by the terms of the Escrow Agreement. The Grantor has good right and legal authority to assign, deliver and/or create a security interest in the Collateral and shall defend its title to the Collateral against all claims of all other persons or entities. The Grantor (i) shall be solely responsible for the payment of, and shall promptly pay and discharge, or shall cause to be paid and discharged, all taxes, assessments and other governmental charges or levies, liens, premiums and other charges imposed upon the Collateral or upon the income from the Collateral, (ii) shall file in a timely manner all tax returns and reports required to be filed in connection therewith and (iii) shall indemnify and hold the Collateral Agent harmless from and against all such taxes, assessments and other governmental charges or levies (including interest and penalties) and all costs and expenses incurred by the Collateral Agent in connection therewith. The Grantor further agrees not to assign this Agreement, not to assign, lease or grant any option or similar right with respect to, any of the Collateral or any part thereof, and not to create, incur, assume or suffer to exist any mortgage, pledge, security interest, lien or other charge or encumbrance upon, any of the Collateral, or enter into any agreement preventing it from encumbering any the Collateral, other than pledges and security interests in favor of the Collateral Agent.

(b)The Grantor agrees to deliver to the Securities Intermediary and place under the Collateral Agent’s control any and all stock dividends, warrants, options, rights, substituted shares or other securities distributed on account of the Collateral or received on account of the exercise by the Grantor of any option, warrant or right appertaining to any security constituting part of the Collateral. In case such a distribution of stock dividends, warrants, options, rights, substituted shares or other securities is made directly to the Collateral Agent, the Grantor will execute such assignments and other documents as the Collateral Agent may require in order to adequately make such distribution part of the Collateral hereunder.

(c)The Grantor represents and warrants that the Escrow Agent is authorized on behalf of the Grantor to purchase assets for, and invest and dispose of assets in the Pledge Account, to give instructions with respect to the purchase, investment or disposition of any assets in the Pledge Account and take all other actions with respect to the Pledge Account in accordance with the terms of the Escrow Agreement. The Grantor agrees to be bound by any action taken by the Escrow Agent in connection therewith and covenants that it will not revoke the authority of the Escrow Agent to take the foregoing actions without also providing prior written notice to the Collateral Agent of such revocation. Until such time as the Collateral Agent receives an effective written notice from the Grantor that the Grantor has revoked the Escrow Agent’s authority as set forth herein, the Collateral Agent shall at all times be entitled to rely on all instructions, requests and actions of the Escrow Agent as if such instructions, requests and/or actions were being made directly by the Grantor, and the term “Grantor” shall, for such purposes, include the Escrow Agent acting on the Grantor’s behalf.

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(d)The Grantor covenants and agrees to execute and deliver such additional instruments and take such further action as the Collateral Agent may reasonably request solely to effect the purpose of this Agreement and the other Offering Documents, including without limitation, causing the Escrow Agent or the relevant issuer of any securities to be included as Collateral from time to time and/or other required parties (including transfer agents and securities intermediaries) to execute and deliver to the Collateral Agent such control agreements, letters of direction or other documents or agreements as the Collateral Agent may reasonably require in order to perfect (including by control) its security interest in the Collateral.

(e)Except as the Collateral Agent may otherwise permit in its discretion and with respect to which there are in effect appropriate control agreements or other documents as the Collateral Agent may from time to time require, all Collateral will be maintained with the Collateral Agent, the Securities Intermediary or the Escrow Agent, subject to the Control Agreement and the Escrow Agreement as applicable.

6.ATTORNEY-IN-FACT. The Collateral Agent, its successors and assigns and any duly authorized officer thereof are hereby irrevocably appointed by the Grantor as the Grantor’s attorney-in-fact, with full authority in the place and stead of the Grantor and in the name of the Grantor or otherwise, from time to time in the Collateral Agent’s reasonable discretion at any time to take any and all action and to execute any instrument or other assurance which the Collateral Agent may deem reasonably necessary or advisable to accomplish the purposes of this Agreement, including: (a) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral; (b) to receive, endorse and collect any drafts or other instruments in connection with clause (a); (c) to execute and do all such assurances, acts and things which the Grantor is required to do under the covenants and provisions of this Agreement; and (d) to take any and all actions as the Collateral Agent may reasonably determine to be necessary or advisable for the purpose of establishing, maintaining, preserving or protecting the security interest constituted by this Agreement or any of the rights, remedies, powers or privileges of the Collateral Agent under this Agreement. To the extent permitted by law, the Grantor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and shall be irrevocable. Without limiting the foregoing, the Collateral Agent is hereby authorized to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (a) indicate the Collateral as assets of the Grantor subject to the Collateral Agent’s lien and security interest, regardless of whether any particular asset comprising the Collateral falls within the scope of Article 9 of the Uniform Commercial Code of the jurisdiction in which the financing statement is filed, with such Collateral description used by the Collateral Agent to have the most encompassing definition applicable under Article 9 of the Uniform Commercial Code of the applicable jurisdiction and consistent with the intent of this Agreement, and (b) provide any other information required by part 5 of Article 9 of the Uniform Commercial Code of any jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including whether the Grantor is an organization or individual, the type of organization and any organizational identification number issued to the Grantor. The Grantor agrees to furnish any such information to the Collateral Agent promptly upon the Collateral Agent’s request. The Grantor also ratifies its authorization for the Collateral Agent to have filed in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof.

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7.RIGHTS WITH RESPECT TO COLLATERAL AFTER AN EVENT OF DEFAULT. Upon the occurrence and during the continuation of an Event of Default, all rights of the Grantor to exercise any voting and other consensual rights which it would otherwise be entitled to exercise with respect to the Collateral shall cease, and all such voting and other consensual rights shall thereupon become vested in the Collateral Agent who shall thereafter have the sole right to exercise such voting and other consensual rights without notice to the Grantor.

8.RECORDS OF COLLATERAL. The Grantor hereby authorizes the Collateral Agent to keep the official record of all instruments, securities, accounts or other property which may, as a result of reinvestment, substitution, or sale upon or prior to maturity or otherwise, from time to time constitute Collateral. Such records shall be presumed to be true and correct absent manifest error. The Grantor authorizes the Collateral Agent to access all books and records relating to the Pledge Account on a daily basis.

9.INTENTIONALLY DELETED.

10.RIGHTS AND REMEDIES OF THE COLLATERAL AGENT. Upon the occurrence of and continuance of an Event of Default, or at any time thereafter, without further notice or demand, the Collateral Agent may declare this Agreement to be in default and thereafter shall have all the rights and remedies of a secured party afforded by the Uniform Commercial Code as then in effect in the State of New York or afforded by other applicable law and shall have the right to set off against the Pledge Account regardless of the adequacy of any other Collateral, and to sell, resell, assign and deliver or otherwise dispose of any or all of the Collateral at a private or public sale for cash or credit or both upon such terms at such place or places, at such time or times and to such entities or other persons as the Collateral Agent thinks expedient all without demand for performance by the Grantor or any notice or advertisement whatsoever except as expressly provided herein or as may otherwise be required by law. Where reasonable notification of the time and place of such sale or other disposition is required by law, such requirement shall be met if the Collateral Agent gives to the Grantor not less than five (5) days notice in writing mailed, postage prepaid, to the last address of the Grantor known to it, of the time and place of any public sale of the Collateral or after which any private sale or intended disposition is to be made, provided, however, that the Collateral Agent may dispose of the Collateral without notice if the Collateral threatens to decline speedily in clause or is of a type customarily sold on a recognized market. The Collateral Agent may cause all or any part of the Collateral held by it to be transferred into its name or the name of its nominee or nominees and, for such purpose, without limitation upon any other rights or remedies available to the Collateral Agent, may give instruction for such effect to any issuer of any of the Collateral or any broker or other financial intermediary or book-entry custodian in possession of any of the Collateral or upon whose books any of the Collateral is then registered. The Collateral Agent may purchase the Collateral at a public sale and if the Collateral is of a type customarily sold in a recognized market or the subject of widely distributed standard price quotations, the Collateral Agent may purchase the Collateral at a private sale. The Grantor acknowledges that some or all of the Collateral which is not traded on a nationally recognized exchange may be sold at a private sale at prices less favorable than those which could be obtained at a public sale and the Collateral Agent shall not be required to wait for completion of any registration of any investment property in order to comply with state securities laws prior to liquidating any Collateral. All commissions and charges relating to sale of any Collateral shall constitute Secured Obligations secured by the Collateral and shall be payable upon demand. After deducting all costs and expenses of collection, storage, custody, sale or other disposition and delivery and all other charges against the Collateral, the residue of the proceeds of any such sale or other disposition shall be applied to the payment of the Secured Obligations in order of preference as the Collateral Agent may determine, with any remaining balance returned to the Grantor.

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11.TERMINATION. This Agreement shall terminate upon the earlier of (i) the termination of the Escrow Agreement and (ii) the payment in full of the Secured Obligations, and the Collateral Agent shall, at the Grantor’s request and expense, (a) return such Collateral to the Grantor in the possession or control of the Collateral Agent as has not theretofore been disposed of pursuant to the provisions hereof, together with any moneys or other property at the time held by the Collateral Agent hereunder, and (b) promptly file a UCC-3 termination statement (if applicable), and execute and deliver to the Grantor or its designees such other documents acknowledging the termination of this Agreement as shall be reasonably requested by Grantor.

12.WAIVERS. The Grantor waives, to the fullest extent permitted by law, presentment, notice, protest, notice of acceptance of this Agreement, notice of any credit or other financial accommodations extended, extensions granted, Collateral received or delivered, or any other action taken in reliance thereon, all demands and notices in connection with the delivery, acceptance, performance, default or enforcement of any note, or other evidence of indebtedness for which any of the Collateral is pledged, and all other demand and notices of any description, and assents to any extension or postponement of the time of payment or any other such indulgence to any substitution, exchange or release of Collateral and to the addition or release of any person primarily or secondarily liable except as otherwise expressly provided herein or in the Indenture.

13.NOTICES. Except as otherwise provided herein, notice to or demand upon the Grantor or the Collateral Agent shall be deemed to have been sufficiently given or served for all purposes thereof, if mailed, postage prepaid:

(a)if to the Grantor:

to its address shown on the records of the Collateral Agent from time to time.

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(b)if to the Collateral Agent:

U.S. Bank National Association

60 Livingston Ave.

St. Paul, Minnesota 55107

Attn: Richard Prokosch

Facsimile No.: (651) 495-8097

Telephone No.: (651) 495-3918

or to such other address as the party to whom such notice is directed may have designated in writing to the other parties hereto.

14.WAIVER OF JURY TRIAL. Except as prohibited by law, neither the Grantor nor the Collateral Agent, nor any assignee or successor of the Grantor or the Collateral Agent, shall seek a jury trial in any lawsuit, proceeding, counterclaim or any other litigation procedure based upon or arising out of this Agreement, any note executed in connection herewith, or any other related document or agreement. Neither the Grantor nor the Collateral Agent will seek to consolidate any such action, in which a jury trial has been waived, with any other action in which a jury trial has not been waived. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THE PROVISIONS HEREOF SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HERETO HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.

15.MISCELLANEOUS. No delay or omission on the part of the Collateral Agent in exercising any right or remedy shall operate as a waiver thereof of any other right or remedy. Waiver on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion. All of the Collateral Agent’s rights and remedies, whether evidenced hereby or by any other agreement, instrument or paper, shall be cumulative and may be exercised singularly or concurrently, and nothing herein shall be deemed to limit in any way any rights the Collateral Agent might otherwise have under any other instrument or by law, including, without limiting the generality thereof, the right to negotiate any note or other instrument together with any Collateral specifically described therein. This Agreement and the security interest granted hereby shall terminate as set forth in Section 11 hereof. The invalidity or unenforceability of any one or more phrases, clauses or sections of this Agreement shall not affect the validity or enforceability of the remaining portions of it. If this Agreement is signed by two or more persons, it shall constitute the joint and several obligation of each of such persons.

This instrument shall be governed by the law (other than the conflict of laws rules) of the State of New York. The Grantor hereby consents to the jurisdiction of the courts of the State of New York and the United States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of its obligations hereunder.

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ACQUICOR TECHNOLOGY INC., as Grantor
By:	/s/ Gilbert F. Amelio
	Name: Gilbert F. Amelio
	Title: Chairman and Chief Executive Officer

U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
By:	/s/ Richard Prokosch
	Name: Richard Prokosch
	Title: Vice President

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EX-4.4

Exhibit 4.4

Execution Version

ACQUICOR TECHNOLOGY INC.

8% CONVERTIBLE SENIOR NOTES DUE 2011

REGISTRATION RIGHTS AGREEMENT

December 19, 2006

Acquicor Technology Inc., a corporation organized under the laws of the State of Delaware (the “Company”), proposes to issue to CRT Capital Group LLC and Needham & Company, LLC (the “Initial Purchasers”), pursuant to the Purchase Agreement, dated December 18, 2006 (the “Purchase Agreement”), among the Initial Purchasers and the Company, $145,000,000 aggregate principal amount (plus up to an additional $21,750,000 aggregate principal amount) of its 8% Convertible Senior Notes due 2011 (the “Securities”) upon the terms and subject to the conditions set forth in such Purchase Agreement. The Securities will be convertible into shares of common stock of the Company, par value $0.0001 per share (the “Common Stock”) at the initial conversion rate of 136.426 shares of Common Stock per each $1,000 principal amount of Securities, subject to adjustment in certain circumstances. The Securities will be issued pursuant to an Indenture dated as of December 19, 2006 (the “Indenture”), among the Company and U.S. Bank National Association as Trustee (the “Trustee”). As an inducement to the Initial Purchasers to enter into the Purchase Agreement and in satisfaction of conditions to the obligations of the Initial Purchasers thereunder, the Company agrees with the Initial Purchasers for the benefit of Holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows:

1.Definitions.

Capitalized terms used herein without definition shall have the meanings ascribed to them in the Purchase Agreement. As used in this Registration Rights Agreement (this “Agreement”), the following defined terms shall have the following meanings:

“Additional Interest” has the meaning assigned thereto in Section 7(a) hereof.

“Affiliate” of any specified person means any other person which, directly or indirectly, is in control of, is controlled by, or is under common control with such specified person. For purposes of this definition, control of a person means the power, direct or indirect, to direct or cause the direction of the management and policies of such person whether by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Applicable Amount” means, at the time of computation of any Additional Interest, the principal amount of the Securities then outstanding that are Registrable Securities.

“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the City of New York, State of New York are authorized or obligated by law or executive order to close.

“Commission” means the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.

“DTC” means The Depository Trust Company.

“Effectiveness Period” has the meaning assigned thereto in Section 2(b)(i) hereof.

“Effective Time” means the time at which the Commission declares any Shelf Registration Statement effective or at which time any Shelf Registration Statement otherwise becomes effective.

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.

“Holder” means any person that is the record owner of Registrable Securities (and includes any person that has a beneficial interest in any Registrable Security in book-entry form).

“Indenture” means the Indenture, dated as of December 19, 2006, by and between the Company and U.S. Bank National Association, pursuant to which the Securities are to be issued, and as amended and supplemented from time to time in accordance with its terms.

“Issue Date” means the first date of original issuance of the Securities.

“Majority of Holders” means Holders holding over fifty percent (50%) of the aggregate principal amount of Registrable Securities outstanding.

“Managing Underwriter” has the meaning assigned thereto in Section 8 hereof.

“Notice and Questionnaire” means a Selling Security Holder Notice and Questionnaire substantially in the form of Appendix A hereto.

“Notice Holder” has the meaning assigned thereto in Section 3(a)(i) hereof.

The term “person” means an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.

“Prospectus” means the prospectus included in any Shelf Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the Offering of any portion of the Registrable Securities covered by any Shelf Registration Statement and by all other amendments and supplements to such prospectus, including all material incorporated by reference in such prospectus and all documents filed after the date of such prospectus by the Company under the Securities Act or the Exchange Act and incorporated by reference therein.

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“Registrable Securities” means all or any portion of the Securities issued from time to time under the Indenture and the shares of Common Stock issuable upon conversion of the Securities, provided, however, that a security ceases to be a Registrable Security when it is no longer a Restricted Security.

“Restricted Security” means any Security or share of Common Stock issuable upon conversion thereof except any such Security or share of Common Stock that (i) has been registered pursuant to an effective registration statement under the Securities Act and sold in a manner contemplated by the Shelf Registration Statement, (ii) has been transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any successor provision thereto) or (iii) has otherwise been transferred and a new Security or share of Common Stock not subject to transfer restrictions under the Securities Act has been delivered by or on behalf of the Company in accordance with Section 2.6 of the Indenture.

“Registration Default” has the meaning assigned thereto in Section 7(a) hereof.

“Securities Act” means the United States Securities Act of 1933, as amended.

“Shelf Registration” means a registration effected pursuant to Section 2 hereof.

“Shelf Registration Statement” means a shelf registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or delayed basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission, filed by the Company pursuant to the provisions of Section 2 of this Agreement, including the Prospectus contained therein, any amendments and supplements to such registration statement and Prospectus, including post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement and Prospectus, and any additional shelf registration statements filed under the Securities Act to permit the registration and sale of Registrable Securities pursuant to Section 3(a)(ii) hereof.

“Stockholder Approval Date” means the date the Company’s stockholders approve the merger of the Company’s wholly-owned subsidiary with and into Jazz Semiconductor, Inc. (“Jazz”) pursuant to the Agreement and Plan of Merger dated as of September 26, 2006 by and among the Company, Joy Acquisition Corp., Jazz and TC Group, L.L.C., as Jazz’s stockholders’ representative and the proposal to increase the Company’s authorized shares of Common Stock sufficient to allow for the of the issuance of shares upon conversion of the Securities.

“Suspension Period” has the meaning assigned thereto in Section 2(c) hereof.

“Trust Indenture Act” means the Trust Indenture Act of 1939, or any successor thereto, and the rules, regulations and forms promulgated thereunder, as the same shall be amended from time to time.

The term “underwriter” means any underwriter, or any person deemed to be an underwriter pursuant to the Securities Act and Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time, of Registrable Securities in connection with an offering thereof under a Shelf Registration Statement.

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Wherever there is a reference in this Agreement to a percentage of the “principal amount” of Registrable Securities or to a percentage of Registrable Securities, each share of Common Stock issued upon conversion of the Securities which is a Registrable Security shall represent a principal amount or percentage of Registrable Securities determined based on the aggregate principal amount of Securities that were converted into shares of Common Stock (as adjusted for any stock splits, stock dividends, recapitalizations, combinations, reorganizations and like events) as of the date of determination.

2.Shelf Registration.

(a)The Company shall, as soon as practicable after the Stockholder Approval Date, but no later than ninety (90) calendar days following the Stockholder Approval Date, file with the Commission a Shelf Registration Statement to provide for the offer and sale of the Registrable Securities by the Holders from time to time in accordance with the methods of distribution elected by such Holders and, thereafter, shall use its reasonable best efforts to cause such initial Shelf Registration Statement to be declared effective under the Securities Act no later than one hundred and eighty (180) calendar days following the Stockholder Approval Date; provided, however, that, except for rights of securityholders under existing registration rights agreements, only Holders who are Notice Holders shall be entitled to be named as a selling securityholder in any Shelf Registration Statement as of the date it is declared effective or to use the Prospectus forming a part thereof for offers and resales of Registrable Securities. Except for rights of securityholders under existing registration rights agreements, none of the Company’s securityholders (other than Holders of Registrable Securities) shall have the right to include any of the Company’s other securities in the Shelf Registration Statement. Notwithstanding anything to the contrary contained herein, neither the Company nor any of its subsidiaries or Affiliates shall disclose the name of any investors in any filing, announcement, release or otherwise without the prior written consent of the applicable investor. The receipt of a Notice and Questionnaire shall be considered a valid consent for the purposes of this Section 2 for use of the information contained in such Notice and Questionnaire.

(b)Subject to Section 2(c) hereof, the Company shall use its reasonable best efforts:

(i)to keep any Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 3(j) hereof, in order to permit the Prospectus forming a part thereof to be usable by Holders until the earlier of: (w) two years from the date of its effectiveness, (x) that date when all of the Holders of Registrable Securities are able to sell all Registrable Securities immediately without restriction pursuant to Rule 144(k) under the Securities Act or any successor rule thereto, (y) that date when all Registrable Securities registered under the Shelf Registration Statements have been sold, or (z) that date when all Registrable Securities have ceased to be outstanding (such period being referred to herein as the “Effectiveness Period”); and

(ii)after the Effective Time of the initial Shelf Registration Statement, to take the actions provided for in Section 3(a)(ii) hereof after the receipt of a completed and signed Notice and Questionnaire from any Holder of Registrable Securities that is not then a Notice Holder; provided, however, that nothing in this subparagraph shall relieve such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(a)(i) hereof.

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(iii)If at any time the Securities are convertible into securities other than Common Stock, the Company shall, or shall cause any successor under the Indenture to, cause such securities to be included in the Shelf Registration Statement no later than the date on which the securities may then be convertible into such securities.

(c)After the Effective Time of the initial Shelf Registration Statement, the Company may suspend the use of any Prospectus by written notice to the Notice Holders for a period not to exceed an aggregate of ninety (90) calendar days in any 12-month calendar period and not in excess of forty-five (45) consecutive calendar days in any such 12-month calendar period (each such period, a “Suspension Period”) if:

(i)an event has occurred and is continuing, as a result of which the Shelf Registration Statement would, in the Company’s reasonable judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and

(ii)the Company determines in good faith that the disclosure of such event at such time would have a material adverse effect on the Company and its subsidiaries taken as a whole.

(d)The Company represents and warrants that it meets the requirements for the use of Form SB-2 or S-1 for registration of the sale by the Holders of the Registrable Securities, subject to interpretations by the staff of the Commission that prohibit the reliance on Rule 415(a)(1)(ii) where the amount of securities being registered exceeds certain thresholds. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to become eligible, and thereafter to maintain its eligibility, for the use of Form S-3. The Company confirms that it expects to meet the registration eligibility and transaction requirements for use of Form S-3 (or any successor form) at the time it files the Shelf Registration Statement. In the event it is not so eligible at such time, not later than five (5) Business Days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 (or any successor form) for registration of the offer and sale by the Holders of Registrable Securities, the Company shall file a Registration Statement on Form S-3 (or such successor form) with respect to the Registrable Securities covered by the Registration Statement on Form SB-2 or Form S-1, whichever is applicable, filed pursuant to Section 2(a) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the 1933 Act) or convert the Registration Statement on Form SB-2 or Form S-1, whichever is applicable, filed pursuant to Section 2(a) to a Form S-3 pursuant to Rule 429 under the 1933 Act and cause such Registration Statement (or such amendment) to be declared effective no later than forty-five (45) days after filing.

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3.Registration Procedures.

In connection with the Shelf Registration Statements, the following provisions shall apply:

(a)i)not less than thirty (30) calendar days prior to the time the Company in good faith intends to have the initial Shelf Registration Statement declared effective, the Company shall distribute the Notice and Questionnaire to the Holders of Registrable Securities. The Company shall take action to name as a selling securityholder in the initial Shelf Registration Statement at the Effective Time each Holder that completes, executes and delivers a Notice and Questionnaire to the Company (a “Notice Holder”) prior to or on the twentieth (20^th) calendar day after such Holder’s receipt thereof so that such Holder is permitted to deliver the Prospectus forming a part thereof to purchasers of such Holder’s Registrable Securities in accordance with applicable law. The Company shall not be required to take any action to name any Holder as a selling securityholder in the initial Shelf Registration Statement at the time of its effectiveness or to enable any Holder to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Holder has returned a completed and signed Notice and Questionnaire to the Company in a timely manner as provided above.

(ii)After the Effective Time of the initial Shelf Registration Statement, the Company shall, upon the request of any Holder of Registrable Securities that is not then a Notice Holder, promptly send a Notice and Questionnaire to such Holder. After the Effective Time of the initial Shelf Registration Statement, the Company shall, subject to the provisos below (A) as promptly as reasonably practicable, after the date a completed and signed Notice and Questionnaire is delivered to the Company, and in any event within ten (10) Business Days or, if the Company is required to file with the Commission a new Shelf Registration, forty-five (45) calendar days, after such date, prepare and file with the Commission (1) a supplement to the Prospectus or, if required by applicable law, a post-effective amendment to the Shelf Registration Statement or an additional Shelf Registration Statement, and (2) any other document required by applicable law, so that the Holder delivering such Notice and Questionnaire is named as a selling securityholder in a Shelf Registration Statement and is permitted to deliver the Prospectus to purchasers of such Holder’s Registrable Securities in accordance with applicable law, and (B) use its reasonable best efforts to cause any post-effective amendment or such additional Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable thereafter; provided, however, that if a Notice and Questionnaire is delivered to the Company during a Suspension Period, the Company shall not be obligated to take the actions set forth in this clause (ii) until the termination of such Suspension Period and provided further that (a) the Company may take reasonable steps to aggregate the addition of the Securities of more than one Holder for purposes of filing amendments to the Shelf Registration Statement or supplements to the Prospectus to reduce the need for multiple amendments or supplements, including delaying the filing of any amendment or supplement for up to 30 days from the initial request in order to aggregate the addition of Securities from other Holders and (b) the Company will not be required to file more than two amendments or supplements in any ninety (90) day period.

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(b)The Company shall furnish to each Notice Holder no fewer than five (5) Business Days prior to the initial filing of the Shelf Registration Statement, a copy of such Shelf Registration Statement, and shall use its reasonable best efforts to reflect in such document when so filed with the Commission such comments as such holders and their respective counsel reasonably may propose; provided, however, that the Company shall make the final decision as to the form and content of each such document. If any Shelf Registration Statement refers to any Notice Holder by name or otherwise as the holder of any securities of the Company, then such Notice Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such Notice Holder, to the effect that the holding by such Notice Holder of such securities is not to be construed as a recommendation by such Notice Holder of the investment quality of the Company’s securities covered thereby and that such holding does not imply that such Notice Holder will assist, in meeting any future financial requirements of the Company or (ii) in the event that such reference to such Notice Holder by name or otherwise is not required by the Securities Act or any similar Federal statute then in force, the deletion of the reference to such Notice Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required.

(c)The Company shall promptly take such action as may be necessary so that (i) each of the Shelf Registration Statements and any amendment or supplement thereto and the Prospectus forming a part thereof and any amendment or supplement thereto (and each report or other document incorporated therein by reference in each case) complies in all material respects with the Securities Act and the Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time, (ii) each of the Shelf Registration Statements and any amendment or supplement thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (iii) each Prospectus forming a part of any Shelf Registration Statement, and any amendment or supplement to such Prospectus, in the form delivered to purchasers of the Registrable Securities during the Effectiveness Period, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of circumstances in which they were made, not misleading, and (iv) a Prospectus filed in compliance with Rule 424 (or any similar provision then in force) under the Securities Act shall be filed within two (2) Business Days of the time the Shelf Registration Statement becomes effective.

(d)The Company shall promptly give notice to each Notice Holder, and shall confirm such notice in writing if so requested by any such Notice Holder (which notice pursuant to clauses (iii)-(vi) hereof shall be accompanied by an instruction to such Holders to suspend the use of the Prospectus until the requisite changes have been made, which notice need not specify the nature of the event giving rise to such suspension):

(i)when the initial Shelf Registration Statement has been filed with the Commission and when the initial Shelf Registration Statement has become effective;

(ii)when any supplement to the Prospectus, Shelf Registration Statement or post-effective amendment to a Shelf Registration has been filed with the Commission and, with respect to a Shelf Registration Statement or any post-effective amendment, when the same has been declared effective by the Commission;

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(iii)of any request by the Commission for amendments or supplements to any effective Shelf Registration Statement or the Prospectus included therein or for additional information;

(iv)of the issuance by the Commission of any stop order suspending the effectiveness of any Shelf Registration Statement or the initiation of any proceedings for such purpose;

(v)of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities included in any Shelf Registration Statement for sale in any jurisdiction or the initiation of any proceeding for such purpose; and

(vi)of the happening of any event or the existence of any state of facts that requires the making of any changes in any Shelf Registration Statement or the Prospectus included therein so that, as of such date, such Shelf Registration Statement and Prospectus do not contain an untrue statement of a material fact and do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(e)The Company shall use its reasonable best efforts to prevent the issuance, and if issued to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of any Shelf Registration Statement.

(f)The Company shall, as promptly as reasonably practicable, furnish to each Notice Holder, upon their request and without charge, at least one conformed copy of the Shelf Registration Statement and any amendment or supplement thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (unless requested in writing to the Company by such Notice Holder).

(g)The Company shall, during the Effectiveness Period, deliver to each Notice Holder, without charge, as many copies of each Prospectus in which the Notice Holder is listed as a selling securityholder included in the applicable Shelf Registration Statement and any amendment or supplement thereto as such Notice Holder may reasonably request; and the Company consents (except during a Suspension Period or during the continuance of any event described in Section 3(d) (iii)-(vi) above, limited, in the case of Section 3(d)(v), to the jurisdiction in question thereunder) to the use of the Prospectus and any amendment or supplement thereto by each of the Notice Holders in connection with the offering and sale of the Registrable Securities covered by the Prospectus and any amendment or supplement thereto during the Effectiveness Period.

(h)Prior to any offering of Registrable Securities pursuant to a Shelf Registration Statement, the Company shall (i) register or qualify or cooperate with the Notice Holders and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky “laws of such jurisdictions within the United States as any Notice Holder may reasonably request in writing, (ii) keep such registrations or qualifications or exemptions therefrom in effect and comply with such laws so as to permit the continuance of offers and sales in such jurisdictions for so long as may be necessary to enable any Notice Holder or underwriter, if any, to complete its distribution of Registrable Securities pursuant to such Shelf Registration Statement, and (iii) take any and all other actions necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities; provided, however, that in no event shall the Company be obligated to (A) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to so qualify but for this Section 3(h), or (B) subject itself to general or unlimited service of process or taxation in any such jurisdiction if it is not otherwise so subject.

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(i)Unless any Registrable Securities shall be in book-entry only form, the Company shall cooperate with the Notice Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to any Shelf Registration Statement, which certificates, if so required by any securities market or exchange upon which any Registrable Securities are quoted or listed, shall be penned, lithographed or engraved, or produced by any combination of such methods, on steel engraved borders, and which certificates shall be free of any restrictive legends and in such permitted denominations and registered in such names as Notice Holders may reasonably request in connection with the sale of Registrable Securities pursuant to such Shelf Registration Statement.

(j)Upon the occurrence of any event or the existence of any fact contemplated by paragraph 3(d)(vi) above, subject to the Company’s rights under Section 2(c) hereof to initiate a Suspension Period, the Company shall promptly, but in any event within ten (10) Business Days following such occurrence or existence, prepare and file (and have declared effective) a post-effective amendment to any Shelf Registration Statement or an amendment or supplement to the related Prospectus included therein or file any other document with the Commission (except, to the extent the Company determines in good faith that the disclosure of such event at such time would not be in the best interests of the Company) so that, as thereafter delivered to purchasers of the Registrable Securities, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Notice Holders of the occurrence of any event or the existence of any fact contemplated by paragraph 3(d)(vi) above, the Notice Holder shall suspend the use of the Prospectus and keep the notification provided pursuant to paragraph 3(d)(vi) above confidential until (i) such Notice Holder has received copies of the supplemented or amended Prospectus contemplated by the preceding sentence or (ii) such Notice Holder is advised in writing by the Company that the use of the Prospectus may be resumed and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. Notwithstanding the foregoing, but subject to Section 8 hereof, the Company shall not be required to amend or supplement the Shelf Registration Statement, any related Prospectus or any document incorporated by reference as provided in Section 2(c) with respect to Suspension Periods.

(k)Not later than the Effective Time of a Shelf Registration Statement, the Company shall provide a CUSIP number for the debt securities to be sold pursuant to a Shelf Registration Statement.

(l)The Company shall use reasonable best efforts to comply with the Securities Act and the Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time, and make generally available to its securityholders earnings statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than ninety (90) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year), or such shorter period as required by the Securities Act and the Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time.

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(m)Not later than the Effective Time of the initial Shelf Registration Statement, the Company shall use its reasonable best efforts to cause the Indenture to be qualified under the Trust Indenture Act; in connection with such qualification, the Company shall cooperate with the Trustee under the Indenture to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and the Company shall execute, and shall use reasonable best efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner. In the event that any such amendment or modification referred to in this Section 3(m) involves the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

(n)The Company shall make reasonably available for inspection by one or more representatives of the Notice Holders, designated in writing by a Majority of Holders whose Registrable Securities are included in a Shelf Registration Statement, any underwriter participating in any disposition pursuant to any Shelf Registration Statement, and any attorney, accountant or other agent retained by such Notice Holders or any such underwriter (i) all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries (other than records and documents that the Company agreed contractually not to disclose), and (ii) cause the Company’s officers, directors and employees to make available for inspection all information (other than information the Company agreed contractually not to disclose) reasonably requested by such Notice Holders or any such underwriter, attorney, accountant or agent in connection with such Shelf Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that such persons shall, at the Company’s request, first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery or inspection, as the case may be, of such information shall be kept confidential by such persons and shall be used solely for the purposes of exercising rights under this Agreement, unless such disclosure is made in connection with a court proceeding or required by law, or such records, information or documents become available to the public generally or through a third party without an accompanying obligation of confidentiality or the content of such disclosure was already known and independently developed by the relevant Notice Holder; providedfurther, however, that, if the foregoing inspection and information gathering would otherwise disrupt the Company’s conduct of its business, such inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of the Notice Holders and the other parties entitled thereto by one counsel designated by and on behalf of the Notice Holders and other parties.

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(o)The Company will use its reasonable best efforts to cause the Common Stock issuable upon conversion of the Securities to be quoted or listed on the American Stock Exchange or other market or stock exchange on which the Common Stock primarily trades on or prior to the Effective Time of each Shelf Registration Statement hereunder.

(p)The Company will cooperate and assist in any filings required to be made with National Association of Securities Dealers, Inc or other market or stock exchange on which the Common Stock may trade.

(q)The Company shall use its reasonable best efforts to take all other steps necessary to effect the registration, offering and sale of the Registrable Securities covered by each Shelf Registration Statement contemplated hereby, including, without limitation, entering into an underwriting agreement in customary form (if the distribution of Registrable Securities is to be made pursuant to an underwritten public offering) and such other customary agreements as may be necessary, desirable or appropriate, and taking all such other necessary actions in connection therewith.

(r)The Company shall:

(i)(A) make reasonably available for inspection by requesting Notice Holders, any underwriter participating in any disposition pursuant to the Shelf Registration Statement, and any attorney selected in accordance with Section 4 hereof, one accountant and any other agent retained by such holders or any such underwriter, all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries and (B) cause the Company’s officers, directors and employees to supply all information reasonably requested by such holders or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential shall be kept confidential by such holders and any such underwriter, attorney, accountant or agent, unless such disclosure is made in connection with a court proceeding or required by law, or such records, information or documents become available to the public generally or through a third party without an accompanying obligation of confidentiality; and provided further that, if the foregoing inspection and information gathering would otherwise disrupt the Company’s conduct of its business, such inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of the requesting Notice Holders and the other parties entitled thereto by one counsel designated by and on behalf of Notice Holders and other parties;

(ii)in connection with any underwritten offering conducted pursuant to Section 8 hereof, make such representations and warranties to the Notice Holders participating in such underwritten offering and to the Managing Underwriter, in form, substance and scope as are customarily made by the Company to underwriters in primary underwritten offerings of equity and convertible debt securities;

(iii)in connection with any underwritten offering conducted pursuant to Section 8 hereof, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriter) addressed to each requesting Notice Holder, covering such matters as are customarily covered in opinions requested in primary underwritten offerings of equity and convertible debt securities and such other matters as may be reasonably requested by such Notice Holders and underwriters (it being agreed that the matters to be covered by such opinions shall include, without limitation, as of the date of the opinion and as of the Effective Time or the date of the most recent post-effective amendment thereto, as the case may be, the absence from the Shelf Registration Statement and the Prospectus, including the documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading);

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(iv)in connection with any underwritten offering conducted pursuant to Section 8 hereof, obtain “cold comfort” letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Shelf Registration Statement), addressed to each requesting Notice Holder (if such Notice Holder has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed) and the underwriters, in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with primary underwritten offerings;

(v)in connection with any underwritten offering conducted pursuant to Section 8 hereof, deliver such documents and certificates as may be reasonably requested by any Notice Holders and the Managing Underwriter, if any, including without limitation certificates to evidence compliance with Section 3(j) hereof and with any conditions contained in the underwriting agreement or other agreements entered into by the Company.

4.Registration Expenses.

The Company shall bear all fees, costs and expenses incurred in connection with the performance by the Company of all of its obligations under Sections 2 and 3 of this Agreement whether or not any of the Shelf Registration Statements are declared effective. Such fees, costs and expenses shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with the National Association of Securities Dealers, Inc., and (B) of compliance with United States federal and state securities or “blue sky” laws (including, without limitation, reasonable fees and disbursements of the counsel specified in the next sentence in connection with “blue sky” qualifications of the Registrable Securities under the laws of such jurisdictions as a Majority of Holders whose Registrable Securities are included in a Shelf Registration Statement may designate)), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company), (iii) duplication expenses relating to copies of any Shelf Registration Statement, Prospectus and other documents delivered to any Holder hereunder, (iv) fees and disbursements of counsel and independent accountants for the Company in connection with the Shelf Registration Statement, and (v) reasonable fees and disbursements of the Trustee and its counsel and of the registrar and transfer agent for the Common Stock. In addition, the Company shall bear or reimburse the Notice Holders for the reasonable fees and disbursements of one firm of legal counsel for the Holders, which shall initially be counsel to the Initial Purchasers, but which may, upon the written consent of a Majority of Holders, be another nationally recognized law firm experienced in securities law matters designated by the Company. In addition, the Company shall pay the internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange on which similar securities of the Company are then listed and the fees and expenses of any person, including special experts, retained by the Company.

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5.Indemnification and Contribution.

(a)Indemnification by the Company. The Company shall indemnify and hold harmless each Notice Holder, the Initial Purchasers, any underwriter that participates in an offering of Securities under the Shelf Registration Statement, each person, if any, who controls any such Notice Holder, Initial Purchaser or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the respective officers, directors, partners, employees, representatives and agents of any such Notice Holder, the Initial Purchasers, any such underwriter or any controlling person, from and against any loss, claim, damage, liability, cost or expense whatsoever as incurred (including, but not limited to, attorneys’ fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as any such loss, claim, damage, liability, cost or expense (or action in respect thereof) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement or any amendment thereto or supplement thereof or any related preliminary prospectus or the Prospectus or any amendment thereto or supplement thereof, or arises out of, or is based upon, the omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstance in which they were made, not misleading; provided, however, that the Company shall not be liable to any such indemnified party in any such case to the extent that any such loss, claim, damage, liability, cost or expense arises out of, or is based upon, any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of such indemnified party specifically for use therein; provided, further, however, that the Company shall not be liable to any such indemnified party in any such case to the extent that such loss, claim, damage, liability, cost or expense arises from an offer or sale by a Notice Holder of Registrable Securities during a Suspension Period, if such indemnified party is a Notice Holder that received from the Company a notice of the commencement of such Suspension Period prior to the making of such offer or sale. The foregoing indemnity agreement is in addition to any liability that the Company may otherwise have to any indemnified party, and the Company hereby confirms that it will indemnify the indemnified party with respect to any breach by the Company of its indemnity obligations hereunder. The Company shall not be liable under this Section 5(a) for any settlement of any action effected without its written consent, which shall not be unreasonably withheld. In addition, with respect to any untrue statement or alleged untrue statement in, or omission or alleged omission from the Prospectus, the Company shall not be liable to any Notice Holder or underwriter (or the directors and officers of any Notice Holder or underwriter or any person controlling such Notice Holder or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) from whom the person asserting any such loss, claims, damages or liabilities purchased the Registrable Securities concerned, to the extent that any such loss, claims damages or liabilities of such person results from the fact that there was not sent or given to such person, at or prior to the written confirmation of such sale of such Registrable Securities to such person, a copy of the Prospectus, as amended or supplemented, if the Company had previously furnished copies thereof to such Notice Holder or underwriter. Any amounts advanced by the Company to an indemnified party pursuant to this Agreement shall be returned to the Company if it shall be finally determined by a court of competent jurisdiction, not subject to appeal, that such indemnified party was not entitled to indemnification by the Company.

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(b)Indemnification by the Notice Holders. Each Notice Holder, severally and not jointly, shall indemnify and hold harmless the Company, the Initial Purchasers, each underwriter, each other Holder, each person, if any, who controls the Company, an Initial Purchaser, any underwriter or another Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the respective officers, directors, partners, employees, representatives and agents of the Company, the Initial Purchasers, any underwriter, any other Holder or any controlling person, from and against any loss, claim, damage, liability, cost or expense whatsoever as incurred (including, but not limited to, attorneys’ fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as any such loss, claim, damage, liability, cost or expense (or action in respect thereof) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement or any amendment thereto or any related preliminary prospectus or the Prospectus or any amendment thereto or supplement thereof, or arises out of, or is based upon, the omission or alleged omission to state therein, in light of the circumstances in which they were made, any material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission made therein was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Notice Holder specifically for use therein. In no event shall the liability of any selling Notice Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Notice Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation. The foregoing indemnity agreement is in addition to any liability that any Notice Holder may otherwise have to the Company, the Initial Purchasers and any such other person.

(c)Notices of Claims, Etc. Promptly after receipt by an indemnified party under this Section 5 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under this Section 5 (except to the extent the defense of such claim or action has been materially prejudiced by such failure). If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 5 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and its respective officers, directors, partners, employees, representatives, agents and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified party against the indemnifying party under this Section 5 if (i) employment of such counsel has been authorized in writing by the indemnifying party, or (ii) such indemnifying party shall not have employed counsel satisfactory to the indemnified party to have charge of the defense of such proceeding within thirty (30) days of the receipt of notice thereof, or (iii) such indemnified party shall have reasonably concluded that the representation of such indemnified party and those officers, directors, partners, employees, representatives, agents and controlling persons by the same counsel representing the indemnifying party would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them or where there may be one or more defenses available to them that are different from, additional to or in conflict with those available to the indemnifying party, and in any such event ((i), (ii) or (iii)) the fees and expenses of such separate counsel shall be paid by the indemnifying party as incurred. It is understood that the indemnifying party shall not be liable for the fees and expenses of more than one separate firm (in addition to local counsel in each jurisdiction) for all indemnified parties in connection with any proceeding or related proceedings. No indemnifying party shall, without the prior written consent of the indemnified parties, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened claim, investigation, action, suit or proceeding in respect of which indemnity or contribution may be or could have been sought hereunder (whether or not the indemnified party or parties are actual or potential parties thereto) unless (A) such settlement, compromise or judgment (1) includes an unconditional release of such indemnified party from all liability arising out of such claim, investigation, action, suit or proceeding, and (2) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, and (B) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment.

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(d)Contribution. If the indemnification provided for in this Section 5 is unavailable or insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages, costs, expenses or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the registration of the Registrable Securities pursuant to the Shelf Registration, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions that resulted in such losses, claims, damages, costs, expenses or liabilities (or actions in respect thereof) as well as any other relevant equitable considerations. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Holder or such other indemnified party, as the case may be, on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this Section 5(d). The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to herein. Notwithstanding any other provision of this Section 5(d), no Holder of the Registrable Securities shall be required to contribute any amount in excess of the amount by which the net proceeds received by such Holder from the sale of its Registrable Securities pursuant to the Shelf Registration Statement exceeds the amount of damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 5(d), each officer, director, partner, employee, representative or agent of an indemnified party, and each person, if any, who controls such indemnified party within the meaning of the Securities Act or the Exchange Act, shall have the same rights to contribution as such indemnified party and each officer, director, partner, employee, representative and agent of the Company, and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, shall have the same rights to contribution as the Company. The Holders’ respective obligations to contribute pursuant to this Section 5(d) are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement and not joint. The remedies provided for in this Section 5(d) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The Company shall not be liable for contribution with respect to any actions, suit, proceeding, or claim settled, compromised, or with respect to which entry of a judgment was consented to by the person seeking contribution, without the Company’s written consent, which consent shall not be unreasonably withheld.

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(e)Undertaking. The Company may require, as a condition to entering into any underwriting agreement with respect thereto, that the Company shall have received an undertaking from the Holder and any such underwriter to comply with the provisions of this Section 5.

(f)Survival. The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers, any underwriter, any Holder, any officer, director, partner, employee, representative or agent of the Initial Purchasers, any underwriter, or any Holder, or any person controlling an Initial Purchaser, any underwriter or any Holder, or by or on behalf of the Company, its officers, directors, partners, employees, representatives or agents or any person controlling the Company, and (iii) any sale of Registrable Securities pursuant to a Shelf Registration Statement.

6.Holder’s Obligations.

Each Holder agrees, by acquisition of the Registrable Securities, that no Holder of Registrable Securities shall be entitled to sell any of such Registrable Securities pursuant to a Shelf Registration Statement or to receive a Prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to Section 3(a) hereof (including all the information required to be included in such Notice and Questionnaire) and the information set forth in the next sentence. Each Notice Holder agrees to promptly furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Notice Holder not misleading and any other information regarding such Notice Holder and the distribution of such Registrable Securities as may be required to be disclosed in the Shelf Registration Statement under applicable law, pursuant to comments from the Commission or as the Company may from time to time reasonably request. Any sale of any Registrable Securities by any Notice Holder shall constitute a representation and warranty by such Notice Holder that the information relating to such Notice Holder and its plan of distribution is as set forth in the Prospectus delivered by such Notice Holder in connection with such disposition, that such Prospectus does not, as of the time of such sale, contain any untrue statement of a material fact relating to such Notice Holder or its plan of distribution, and that such Prospectus does not, as of the time of such sale, omit to state any material fact relating to or provided by such Notice Holder or its plan of distribution necessary in order to make the statements in such Prospectus, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in reliance on and in conformity with written information furnished to the Company by or on behalf of such Notice Holder.

7.Additional Interest.

(a)If:

(i)on or prior to the one hundred and eightieth (180th) day following the Stockholder Approval Date, such initial Shelf Registration Statement is not declared effective by the Commission, or

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(ii)after the effectiveness date of any Shelf Registration Statement, (A) such Shelf Registration Statement ceases to be effective or usable for the offer and sale of Registrable Securities (other than due to a Suspension Period), and the Company fails to file (and have declared effective), within five (5) Business Days, a post-effective amendment to such Shelf Registration Statement or amendment or supplement to the Prospectus contained therein or such other document with the Commission to make such Shelf Registration Statement effective or such Prospectus usable, or (B) the Suspension Periods exceed ninety (90) calendar days, whether or not consecutive, in any 12-month calendar period, or

(iii)the Company shall have failed to timely comply with any of its obligations set forth in Section 3(a)(ii) hereof, provided that such failure is not solely due to the failure of a Holder of Registrable Securities to perform its obligations set forth in Section 3(a)(i) hereof (each of (i) through (iii) a “Registration Default”),

the Company shall be required to pay additional interest (“Additional Interest”) with respect to the Securities then outstanding that are Registrable Securities, from and including the day following such Registration Default to but excluding the day on which such Registration Default is cured, at a rate per annum equal to an additional one-quarter of one percent (0.25%) per annum of the Applicable Amount during the first 90 days following the date of a Registration Default and increasing at the end of such 90-day period by an additional one-quarter of one percent (0.25%) per annum to a maximum amount of one-half of one percent (0.50%) per annum. The Company shall notify the Trustee as promptly as possible, but in no event later than three (5) Business Days after each and any date on which a Registration Default occurs. The requirement of the Company to pay Additional Interest ceases on the day such Registration Default is cured.

(b)Any amounts to be paid as Additional Interest pursuant to paragraph (a) of this Section 7 shall be paid by wire transfer of immediately available funds or by federal funds check on the first interest payment date in respect of the Securities following the date on which such Additional Interest begins to accrue.

(c)A Registration Default pursuant to paragraph (a)(ii) or (iii) above may not occur during any Suspension Period, and any Registration Default pursuant to paragraph (a)(ii) or (iii) above in existence at the commencement of any Suspension Period shall be tolled and the Additional Interest rate shall not be increased because of such Registration Default during such Suspension Period. Notwithstanding anything herein to the contrary, during the occurrence of any Registration Defaults, offers and sales of transfer restricted Securities pursuant to the Shelf Registration Statement shall be prohibited.

(d)In no event shall Holders who have converted Securities into Common Stock be entitled to receive any Additional Interest with respect to such Common Stock or the issue price of the Securities converted.

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(e)The Additional Interest as set forth in this Section 7 shall be the exclusive cash remedy available to the Holders of Registrable Securities for such Registration Default. In no event shall the Company be required to pay Additional Interest in excess of the applicable maximum amount of one-half of one percent (0.5%) per annum as set forth above, or eight and one-half percent (8.50%) per annum when combined with the stated interest on the Securities, regardless of whether one or multiple Registration Defaults exist.

8.Underwritten Offering.

Subject to any registration obligations outstanding prior to the date hereof, any holder of Registrable Securities who desires to do so may sell Registrable Securities (in whole or in part) in an underwritten offering; provided, however, the Company shall not be required to facilitate an underwritten offering pursuant to the Shelf Registration Statement by any holders unless the offering relates to at least $27,000,000 principal amount of Securities or the equivalent number of shares of Common Stock in which such Securities are convertible. In any such underwritten offering, the investment banker or investment bankers and manager or managers (the “Managing Underwriter”) that will administer the offering will be selected by, and the underwriting arrangements with respect thereto (including the size of the offering) will be approved by, the holders of a majority of the Registrable Securities to be included in such offering; provided, however, that such investment bankers and managers and underwriting arrangements must be reasonably satisfactory to the Company and that the Company shall not be required to arrange for or participate in more than two underwritten offerings during the Effectiveness Period. No holder may participate in any underwritten offering contemplated hereby unless (a) such holder agrees to sell such holder’s Registrable Securities to be included in the underwritten offering in accordance with any approved underwriting arrangements, (b) such holder completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such approved underwriting arrangements and (c) if such holder is not then a Notice Holder, such holder returns a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(a)(ii) hereof within a reasonable amount of time before such underwritten offering. The holders participating in any underwritten offering shall be responsible for any underwriting discounts and commissions and fees and, subject to Section 4 hereof, expenses of their own counsel. The Company shall pay all expenses customarily borne by issuers, including but not limited to filing fees, the fees and disbursements of its counsel and independent public accountants and any printing expenses incurred in connection with such underwritten offering. Notwithstanding the foregoing or the provisions of Section 3(n) hereof, in connection with a request from the Managing Underwriter or a representative of a Majority of Holders to be included in an underwritten offering for the Company to prepare and file an amendment or supplement to the Shelf Registration Statement and Prospectus in connection with an underwritten offering, the Company may delay the filing of any such amendment or supplement for up to ninety (90) days if the Company is in possession of material non-public information the disclosure of which would have a material adverse effect on the business, operations, prospects, condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole.

9.Rule 144A and 144.

(a) The Company shall use commercially reasonable efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner and if at any time the Company is not required to file such reports, the Company covenants to the Holders of the Registrable Securities that the Company shall use its reasonable best efforts to make available, upon request of any holder of Registrable Securities, to such holder or beneficial owner of Registrable Securities in connection with any sale thereof and any prospective purchaser of such Registrable Securities designated by such holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Registrable Securities pursuant to Rule 144A of the Securities Act.

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(b) The company shall use commercially reasonable efforts to timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 of the Securities Act) and the rules and regulations adopted by the Commission thereunder, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144 under the Securities Act, as such may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the Commission. Upon the request of any Holder of Registrable Securities in connection with that Holder’s sale pursuant to Rule 144, the Company shall deliver to such Holder a written statement as to whether it had complied with such requirements.

(c) Notwithstanding the foregoing, nothing in this Section 9 shall be deemed to require the Company to register any of its Securities pursuant to the Exchange Act.

10.Miscellaneous.

(a)Specific Performance. The parties hereto acknowledge that there would be no adequate remedy at law if the Company fails to perform any of its obligations hereunder and that the Initial Purchasers and the Holders from time to time may be irreparably harmed by any such failure, and accordingly agree that the Initial Purchasers and such Holders, in addition to any other remedy to which they may be entitled at law or in equity and without limiting the remedies available to the Notice Holders under Section 7 hereof, shall be entitled to compel specific performance of the obligations of the Company under this Agreement in accordance with the terms and conditions of this Agreement, in any court of the United States or any State thereof having jurisdiction.

(b)Amendments and Waivers. This Agreement, including this Section 10(b), may be amended, and waivers or consents to departures from the provisions hereof may be given, only by a written instrument duly executed by the Company and a Majority of Holders provided that any amendment that adversely affects the Initial purchasers shall also require the consent of the Initial Purchasers. Each Holder of Registrable Securities outstanding at the time of any such amendment, waiver or consent or thereafter shall be bound by any amendment, waiver or consent effected pursuant to this Section 10(b), whether or not any notice, writing or marking indicating such amendment, waiver or consent appears on the Registrable Securities or is delivered to such Holder.

(c)Other Registration Rights. The Company may in the future grant registration rights that would permit any Person that is a third party the right to piggy-back on any Shelf Registration Statement; provided that if the Managing Underwriter, if any, of such offering notifies the Notice Holders that the total amount of securities which they and the holders of such piggy-back rights intend to include in any Shelf Registrations Statement is so large as to materially adversely affect the success of such offering (including the price at which such securities can be sold), then only the amount, the number or kind of securities to be offered for account of holders of such piggy-back rights will be reduced to the extent necessary to reduce the total amount of securities to be included in such offering to the amount, number or kind recommended by the Managing Underwriter prior to the reduction in the amount of Registrable Securities to be included.

(d)Third Party Beneficiary. The holders of Registrable Securities shall be third party beneficiaries to the agreements made hereunder between the Company, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent they may deem such enforcement necessary or advisable to protect its rights or the rights of holders of Registrable Securities hereunder.

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(e)Notices. All notices and other communications provided for or permitted hereunder shall be made in writing, shall be delivered by hand delivery, by telecopier, by courier guaranteeing overnight delivery or by first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon confirmation, if made by telecopier (provided notice is also given by some other means permitted by this Section 10(e)), (iii) one Business Day after being deposited with such courier, if made by overnight courier, or (iv) on the date indicated on the notice of receipt, if made by first-class mail, to the parties as follows:

(x) if to a Holder of Registrable Securities, at the address that appears in the security register maintained pursuant to the Indenture (in the case of holders of Notes) and at the address maintained by the Company’s transfer agent (in the case of holders of shares);

(y) if to the Company, to:

Acquicor Technology Inc.

4910 Birch Street, #102

Newport Beach, CA 92660

Attention: Secretary

Telephone: (949) 759-3434

Facsimile: (949) 266-9020

with a copy to:

Cooley Godward Kronish LLP

101 California Street, 5th Floor

San Francisco, CA 92660

Attention: Gian-Michele aMarca

Facsimile: (415) 693-2222

(z) if to the Initial Purchasers, to (i) CRT Capital Group LLC, 262 Harbor Drive, Stamford, CT 06902, Attention: Christopher Chase and (ii) to Needham & Company LLC, 3000 Sand Hill Road, B2 Suite 190, Menlo Park CA, 94025, Attention: Joseph Dews;

with a copy to:

Bingham McCutchen LLP

150 Federal Street

Boston, MA 02110

Attention: John R. Utzschneider

Facsimile: (617) 951-8736

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or to such other address as such person may have furnished to the other persons identified in this Section 10(e) in writing in accordance herewith.

(f)Parties in Interest. The parties to this Agreement intend that all Holders of Registrable Securities shall be entitled to receive the benefits of this Agreement and that any Notice Holder shall be bound by the terms and provisions of this Agreement by reason of such election with respect to the Registrable Securities which are included in a Shelf Registration Statement. All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and assigns of the parties hereto and any Holder from time to time of the Registrable Securities to the aforesaid extent. In the event that any transferee of any Holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be entitled to receive the benefits of and, if a Notice Holder, be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement to the aforesaid extent.

(g)Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Facsimile signatures shall constitute original signatures for all purposes of this Agreement.

(h)Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

(i)Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any provisions relating to conflicts of law.

(j)Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law.

(k)Survival. The respective indemnities, agreements, covenants, representations, warranties and other provisions set forth in this Agreement or made pursuant hereto shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of the Initial Purchasers, any Holder, or any officer, director, partner, employee, representative or agent of the Initial Purchasers or Holder, any agent or underwriter, any officer, director, partner, employee, representative or agent of such agent or underwriter, or any controlling person of any of the foregoing, and shall survive the transfer and registration of the Registrable Securities of such Holder.

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11.Submission to Jurisdiction; Appointment of Agent for Service.

The Company agrees that any suit, action or proceeding against the Company arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any state or federal court in The City of New York, New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Company agrees that a final judgment in any such proceeding brought in any such court shall be conclusive and binding thereupon and may be enforced in any other court in the jurisdiction to which the Company is or may be subject by suit upon such judgment.

[Remainder of Page Intentionally Left Blank]

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Please confirm that the foregoing correctly sets forth the agreement between the Company and you.

 

Very truly yours, ACQUICOR TECHNOLOGY INC.
By:	/s/ Gilbert F. Amelio
	Name:Gilbert F. Amelio
	Title:Chairman and Chief Executive Officer

Accepted as of the date hereof:

CRT CAPITAL GROUP LLC

By: /s/ Christopher Chase                        

      Name: Christopher Chase                  

      Title: Managing Director                   

NEEDHAM & COMPANY, LLC

By: /s/ Joseph Dews                                

       Name: Joseph Dews                         

       Title: Managing Director                 

[Signature Page to Registration Rights Agreement]

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APPENDIX A

8% CONVERTIBLE SENIOR NOTES DUE 2011

SELLING SECURITY HOLDER

NOTICE AND QUESTIONNAIRE

The undersigned beneficial holder (the “Selling Security Holder”) of 8% ConvertibleSenior Notes due 2011 (the “Notes”) of Acquicor Technology Inc. ( the “Company”) or shares of common stock, par value $0.0001, of the Company issuable upon conversion of the Notes (together with the Notes, the “Registrable Securities”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-3 (the “Shelf Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities in accordance with the terms of the Registration Rights Agreement (the “Registration Agreement”), dated as of December 19, 2006 between the Company and the Initial Purchasers named therein. A copy of the Registration Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Registration Agreement.

In order to sell or otherwise dispose of any Registrable Securities pursuant to the Shelf Registration Statement, a beneficial owner of Registrable Securities will be required to be named as a selling security holder in the related prospectus, deliver the prospectus to purchasers of Registrable Securities and be bound by those provisions of the Registration Agreement applicable to such beneficial owner (including certain indemnification provisions thereof). In order to have Registrable Securities included in the Shelf Registration Statement, this Notice and Questionnaire must be completed, executed and delivered to the Company at the address specified below ON OR BEFORE ●, 2007. Beneficial owners of Registrable Securities who do not complete, execute and return this Notice and Questionnaire (i) will not be named as selling security holders in the Shelf Registration Statement and (ii) may not use the related prospectus for resales of Registrable Securities. Beneficial owners are encouraged to complete and deliver this Notice and Questionnaire prior to the effectiveness of the Shelf Registration Statement.

Certain legal consequences arise from being named as selling security holders in the Shelf Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling security holder in the Shelf Registration Statement and the related prospectus.

A-1

Election

The undersigned Selling Security Holder of Registrable Securities hereby elects to include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and listed below in Item (3) (unless otherwise specified under Item (3)). The undersigned, by signing and returning this Notice and Questionnaire, agrees to be bound by the terms and conditions of this Notice and Questionnaire and the Registration Agreement, including without limitation, Section 5 of the Registration Agreement, as if the undersigned were an original party thereto.

Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the undersigned agrees to deliver to the Company and the Trustee the Notice of Transfer (completed and signed) set forth on Exhibit 1 to this Notice and Questionnaire.

The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate and complete:

Questionnaire

1. (a) Full legal name of Selling Security Holder:

______________________________________________________________________________________

(b) Full legal name of registered holder (if not the same as (a) above) through which Registrable Securities listed in Item (3) below are held (if the Registrable Securities are held through a broker-dealer or other third party and, as a result, you do not know the legal name of the registered holder, please complete Item (1)(c) below):

______________________________________________________________________________________

(c) Full legal name of broker-dealer or other third party through which Registrable Securities listed in Item (3) below are held:

______________________________________________________________________________________

(d) Full legal name of DTC Participant (if applicable and if not the same as (b) or (c) above) through which Registrable Securities listed in Item (3) below are held:

______________________________________________________________________________________

(e) State whether the Selling Security Holder is a publicly-held entity or a subsidiary of a publicly-held entity (i.e., an entity that has a class of securities registered under the Securities Exchange Act of 1934, as amended):

Yes ____ No ____

If a subsidiary of a publicly-held entity, please identify the publicly-held parent entity: ________________

______________________________________________________________________________________

(f) State whether the Selling Security Holder is an investment company or a subsidiary of an investment company registered under the Investment Company Act of 1940:

Yes ____ No ____

If a subsidiary of an investment company, please identify the investment company parent entity: ________

______________________________________________________________________________________

A-2

(g) If you answered “No” to questions (e) and (f), state the number of natural persons, publicly-held entities or investment companies who have or share voting or investment control over the Registrable Securities: _________________.

If your answer is 5 or fewer, please identify those natural persons, publicly-held entities or investment companies:

______________________________________________________________________________________

______________________________________________________________________________________

______________________________________________________________________________________

Please note that the SEC requires that these persons or entities be named in the prospectus.

2.  Address for Notices to Selling Security Holder:

______________________________________________________________________________________

______________________________________________________________________________________

Telephone:_____________________________________________________________________________

Fax: __________________________________________________________________________________

Contact Person:_________________________________________________________________________

3.  Beneficial Ownership of Registrable Securities:

Except as set forth below in this Item (3), the undersigned does not own any Notes or shares of common stock issued upon conversion, repurchase or redemption of any Notes.

Principal amount (or number of shares) of Registrable Securities beneficially owned: _________________

______________________________________________________________________________________

CUSIP No(s). of such Registrable Securities beneficially owned: __________________________________

Number of shares of common stock (if any) issued upon conversion, repurchase or redemption of Registrable securities: ____________________________________________________________________

Unless otherwise indicated in the space provided below, all Notes and all shares of common stock listed in response to Item (3)(a) above, and all shares of common stock issuable upon conversion repurchase of redemption of the Notes listed in response to Item (3)(a) above, will be included in the Shelf Registration Statement. If the undersigned does not wish all such Notes or shares of common stock to be so included, please indicate below the principal amount or the number of shares to be included:

______________________________________________________________________________________

______________________________________________________________________________________

4. Beneficial ownership of other securities of the Company owned by the Selling Security Holder:

Except as set forth below in this Item (4), the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item (3).

(a) Type and amount of other securities of the Company beneficially owned by the Selling Security Holder:

______________________________________________________________________________________

______________________________________________________________________________________

(b) CUSIP No(s). of such other securities of the Company beneficially owned:

______________________________________________________________________________________

______________________________________________________________________________________

A-3

5.  Relationship with the Company:

Except as set forth below, neither the undersigned nor any of its affiliates, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.

State any exceptions here:

______________________________________________________________________________________

______________________________________________________________________________________

6. Plan of Distribution

Except as set forth below, the undersigned (including its donees or pledgees) intends to distribute the Registrable Securities listed above in Item (3) pursuant to the Shelf Registration Statement only as follows (if at all): Such Registrable Securities may be sold from time to time directly by the undersigned or alternatively through underwriters or broker-dealers or agents. If the Registrable Securities are sold through underwriters or broker-dealers, the Selling Security Holder will be responsible for underwriting discounts or commissions. Such Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any national securities exchange or quotation service on which the Registrable Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Registrable Securities or otherwise, the undersigned may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Securities in the course of hedging positions they assume. The Selling Security holders may also sell Registrable Securities short and deliver Registrable Securities to close out such short positions, or loan or pledge Registrable Securities to broker-dealers that in turn may sell such securities. The Selling Security Holder may pledge or grant security interest in some or all of the Registrable Securities owned by it and, if it defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the Registrable Securities from time to time pursuant to the prospectus. The Selling Security Holder also may transfer and donate shares in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling security holder for purposes of the prospectus.

State any exceptions here:

______________________________________________________________________________________

______________________________________________________________________________________

Note: In no event will such method(s) of distribution take the form of an underwritten offering of the Registrable Securities without the prior agreement of the Company.

7. (a) State whether the Selling Security Holder will enter into “hedging transactions.”

Yes ____ No ____

If yes, you must provide a complete description of the hedging transactions into which the Selling Security Holder will enter and the purpose of such hedging transactions.

______________________________________________________________________________________

______________________________________________________________________________________

______________________________________________________________________________________

______________________________________________________________________________________

A-4

Please note that the SEC may deem short sales of securities covered by a registration statement prior to the effectiveness of such registration statement as a violation of Section 5 of the Securities Act.

8. (a) State whether the Selling Security Holder is a registered broker-dealer.

Yes ____ No ____

(b) State whether the Selling Security Holder received the Registrable Securities as compensation for underwriting activities and, if so, provide a brief description of the transaction(s) involved.

Yes ____ No ____

______________________________________________________________________________________

______________________________________________________________________________________

The SEC requires that all Selling Security Holders that are broker-dealers and that did not receive the Registrable Securities as compensation for underwriting activities must be named as underwriters in the prospectus for the Registrable Securities. Selling Security Holders, including those named as underwriters, must deliver copies of the prospectus to purchasers at or prior to the time of any sale of the Registrable Securities.

(c) State whether the Selling Security Holder is an affiliate of a registered broker-dealer and if so, list the name(s) of the broker-dealer affiliate(s).

Yes ____ No ____

______________________________________________________________________________________

______________________________________________________________________________________

If the answer is “Yes,” you must answer question (d) below.

(d) If the Selling Security Holder is an affiliate of a registered broker-dealer:

(i) Did the Selling Security Holder purchase the Registrable Securities in the ordinary course of business?

Yes ____ No ____

If the answer is “No,” to question (i) state any exceptions below:

______________________________________________________________________________________

______________________________________________________________________________________

(ii) At the time of the purchase of the Registrable Securities, did the Selling Security Holder have any agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?

Yes ____ No ____

If the answer is “Yes” to question (ii), state any exceptions below:

______________________________________________________________________________________

______________________________________________________________________________________

A-5

If the answer is “No” to question (i) or “Yes” to question (ii), you will be named as an underwriter in the prospectus relating to the Registrable Securities.

________________________________

By signing below, the undersigned acknowledges that it understands its obligation to comply with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder relating to stock manipulation, particularly Regulation M thereunder (or any successor rules or regulations) and the provisions of the Securities Act, including without limitation those relating to prospectus delivery, in connection with any offering of Registrable Securities pursuant to the Shelf Registration Statement. The undersigned agrees that neither it nor any person acting on its behalf will engage in any transaction in violation of such provisions.

In the event that the Selling Security Holder transfers all or any portion of the Registrable Securities listed in Item (3) above after the date on which such information is provided to the Company, the Selling Security Holder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Notice and Questionnaire and the Registration Agreement.

In accordance with the undersigned’s obligation under the Registration Agreement to provide such information as may be required by law for inclusion in the Shelf Registration Statement, the undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Shelf Registration Statement is required to remain effective. All notices hereunder and pursuant to the Registration Agreement shall be made in writing at the address set forth below.

By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items (1) through (8) above and the inclusion of such information in the Shelf Registration Statement and the related prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Shelf Registration Statement and the related prospectus.

Once this Notice and Questionnaire is executed by the Selling Security Holder and received by the Company, the terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives and assigns of the Company and the Selling Security Holder (with respect to Registrable Securities beneficially owned by such Selling Security Holder and listed in Item (3) above). This agreement shall be governed in all respects by the laws of the State of New York.

IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.

Beneficial Owner

By: _______________________________________

Name: _____________________________________

Title: ______________________________________

Dated: _____________________________________

PLEASE RETURN THE COMPLETED AND EXECUTED

NOTICE AND QUESTIONNAIRE TO:

Acquicor Technology Inc.

4910 Birch Street, Suite 102

Newport Beach, California 92660

Phone:  (949) 759-3434

Facsimile:  (949) 266-9020

Attention:  Corporate Secretary

WITH A COPY TO:

Cooley Godward Kronish llp

101 California Street, 5^th Floor

San Francisco, California 94111-5800

Phone: (415) 693-2000

Facsimile: (415) 693-2222

Attention: Gian-Michele a Marca

A-6

EX-4.5

Exhibit 4.5

Limited Waiver

Whereas, Acquicor Technology, Inc., a Delaware corporation (the “Company”), has entered into a Purchase Agreement (the “Purchase Agreement”) dated as of December 18, 2006 with CRT Capital Group LLC and Needham & Company, LLC (the “Initial Purchasers”) pursuant to which the Company intends to issue 8% Senior Convertible Notes Due 2011 (the “Notes”);

Whereas, the undersigned holders of the Company’s securities (each a “Holder” and collectively, the “Holders”) may have certain piggy-back registration rights pursuant to (i) Section 2.2 of that certain Private Placement Unit Purchase Agreement dated March 8, 2006 among the Company, ThinkEquity Partners LLC and the purchasers on Exhibit A thereto; (ii) Section 7.2 of that certain Registration Rights Agreement dated March 8, 2006 among the Company and the insiders listed on Exhibit A thereto; or (iii) Section 5.2 of those certain Unit Purchase Options initially issued to ThinkEquity Partners, LLC in connection with the Company’s initial public offering (collectively, the “Piggy-Back Rights”); and

Whereas, as a condition to the purchase of the Notes, the Company is required to enter into a registration rights agreement with the Initial Purchasers for the benefit of the holders of the Notes (the “New Rights Agreement”).

Now, Therefore, in consideration of the benefits each Holder will receive from the purchase of the Notes as a holder of securities of the Company, each Holder, intending to be legally bound, hereby agrees as follows:

1. Waiver of Piggy-Back Rights. Each Holder hereby waives any and all Piggy-Back Rights possessed by it in connection with any Shelf Registration Statement (as defined in the New Rights Agreement) or other registration statement filed with the Securities Exchange Commission pursuant to the New Rights Agreement.

2. Miscellaneous.

2.1BindingAgreement. This Limited Waiver shall be immediately effective against each Holder upon delivery to the Company by such Holder of a counterpart signature page hereto, regardless of which other Holders have executed this Limited Waiver. The terms and conditions of this Limited Waiver shall inure to the benefit of and be binding upon the respective successors and assigns of the undersigned. Nothing in this Waiver, expressed or implied, is intended to confer upon any third party any rights or remedies hereunder, except as expressly provided herein.

2.2Governing Law. This Waiver shall be governed by and construed under the laws of the State of California, without giving effect to conflicts of laws principles.

2.3Entire Agreement. This Waiver constitutes the full and entire understanding and agreement with regard to the subject hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein and therein.

In Witness Whereof, the undersigned have executed this Limited Waiver as of December 18, 2006.

ACQUICOR MANAGEMENT LLC     By:  /s/ Gilbert F. Amelio Name:Gilbert F. Amelio Title:Sole Manager     /s/ Harold L. Clark HAROLD L. CLARK     /s/ John P. Kensey JOHN P. KENSEY     /s/ Moshe I. Meidar MOSHE I. MEIDAR     /s/ Paul Pittman PAUL PITTMAN THINKEQUITY PARTNERS LLC     By:  /s/ Michael Moe Name: Michael Moe Title: Chairman and Chief Executive Officer   WEDBUSH MORGAN SECURITIES, INC.     By:  /s/ Gary Wedbush Name:Gary Wedbush Title:Executive Vice President   CRT CAPITAL GROUP LLC     By:  /s/ Christopher Chase Name:Christopher Chase Title:Managing Director   GUNN ALLEN FINANCIAL, INC.     By:  /s/ Dean G. Tanella Name:Dean G. Tanella Title:EVP, Capital Markets Group  

EX-10.1

Exhibit 10.1

Execution Version

Acquicor Technology Inc.

$145,000,000

8% Convertible Senior Notes due 2011

PURCHASE AGREEMENT

December 18, 2006

CRT Capital Group LLC

Needham & Company, LLC

c/o CRT Capital Group LLC

262 Harbor Drive

Stamford, CT 06902

Ladies and Gentlemen:

Acquicor Technology Inc., a corporation organized under the laws of the State of Delaware (the “Company”), hereby confirms to CRT Capital Group LLC (“CRT”) and Needham & Company, LLC (“Needham” and together with CRT, the “Initial Purchasers”), its agreement to issue and sell its 8% Convertible Senior Notes due 2011 to the Initial Purchasers, as set forth below.

1.The Transactions.

(a)Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchasers $145,000,000 aggregate principal amount of its 8% Convertible Senior Notes due 2011 (the “Firm Notes”). The Company also agrees to issue to the Initial Purchasers an option to purchase up to an additional $21,750,000 aggregate principal amount of its 8% Convertible Senior Notes due 2011 (the “Option Notes” and, together with the Firm Notes, the “Notes”). The initial conversion rate of the Notes is 136.426 shares of common stock, $0.0001 par value per share, of the Company (the “Common Stock” or “Conversion Shares”) per each $1,000 principal amount of Notes, subject to adjustment in certain circumstances. The Notes will (i) have the terms and provisions which are described in the Offering Memorandum (as defined below) under the heading “Description of Notes” and such other terms as are customary, and (ii) be issued pursuant to the provisions of the Indenture (the “Indenture”), to be dated as of December 19, 2006, between the Company and U.S. Bank National Association, as trustee (the “Trustee”) on a private placement basis pursuant to an exemption from registration under Section 4(2) and Regulation D under the Securities Act of 1933, as amended (the “Securities Act”). The Notes and the Conversion Shares are hereinafter referred to collectively as the “Securities.” The offer and sale of the Securities is hereinafter referred to as the “Offering.” Holders of the Securities will have the registration rights set forth in a registration rights agreement (the “Registration Rights Agreement”), to be dated as of December 19, 2006, among the Company and the Initial Purchasers, relating to the resale of the Securities under the Securities Act.

(b)Subject to approval by the Company’s stockholders, it is proposed that a wholly-owned subsidiary of the Company will merge with and into Jazz Semiconductor, Inc. (“Jazz”), pursuant to an Agreement and Plan of Merger (the “Merger Agreement”), dated as of September 26, 2006, by and among the Company, Joy Acquisition Corp., Jazz and TC Group, L.L.C. as Jazz’s stockholders’ representative (the “Merger”), and the Company intends to use all or a portion of the proceeds of the Offering to effect the Merger. Pending the satisfaction of certain release conditions contained in an escrow agreement (the “Escrow Agreement”), to be dated as of December 19, 2006, among the Company, the Trustee and U.S. Bank National Association, as escrow agent (the “Escrow Agent”), the gross proceeds from the Offering, including the Initial Purchasers’ discount, will be placed in an escrow account (the “Escrow Account”) with the Escrow Agent. Pending (i) the release of the funds in the Escrow Account upon stockholder approval of the Merger and the Authorized Share Increase (as defined below) to pay the merger consideration in connection with the Merger upon the terms described in the Offering Memorandum (as defined below) and other costs payable in connection with the Merger and general purposes or (ii) application of the funds in the Escrow Account for payment of the redemption price in connection with a Special Mandatory Redemption (as defined in the Indenture), such funds will be invested by the Escrow Agent only in specified securities such as a money market fund meeting the criteria of Rule 2a-7 under the Investment Company Act of 1940, as amended, or in securities that are direct obligations of, or obligations guaranteed as to principal and interest by, the United States. The Escrow Agreement will provide that the Escrow Agent will release the funds as directed by the Trustee upon satisfaction of certain conditions and that the Merger will occur immediately after the release of the funds. If the Company’s stockholders have not approved the Merger and certain amendments to the Company’s certificate of incorporation on or before May 31, 2007, or prior to such date the Company’s stockholders vote not to approve the Merger or certain amendments to the Company’s certificate of incorporation, the funds in the Escrow Account will be released to redeem all of the Notes at 100% of the principal amount plus any interest income earned on the funds in the Escrow Account. While the gross proceeds from the Offering are held in the Escrow Account, the Trustee will have a perfected first priority security interest in the gross proceeds, pursuant to the terms of a Pledge and Security Agreement (the “Security Agreement”), to be dated as of December 19, 2006, between the Company and the Trustee, as collateral agent (the “Collateral Agent”), which security interest will have been perfected pursuant to a Control Agreement (the “Control Agreement”) dated as of December 19, 2006 among the Company, the Collateral Agent, the Escrow Agent and U.S. Bank, National Association, as securities intermediary.

(c)In connection with the sale of the Securities, the Company has prepared and delivered to the Initial Purchasers an Offering Memorandum, dated December 12, 2006, in form and substance satisfactory to the Initial Purchasers and a Supplement to Offering Memorandum dated December 15, 2006 (together, the “Offering Memorandum”), and a Preliminary Offering Memorandum, dated November 22, 2006, and Supplements to Preliminary Offering Memorandum dated December 7, 2006 and December 11, 2006, each in form and substance satisfactory to the Initial Purchasers (together, the “Preliminary Offering Memorandum”), each setting forth information regarding the Company, the Securities and the terms of the Offering and the transactions contemplated by the Offering Documents (as defined below). The Preliminary Offering Memorandum and the Offering Memorandum each incorporates by reference the following filings by the Company:

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(i)Registration Statement on Form S-1 filed with the Securities and Exchange Commission (the “Commission”) on March 9, 2006;

(ii)Post-Effective Amendment No. 1, filed March 15, 2006, to Registration Statement on Form S-1;

(iii)Prospectus dated March 15, 2006, filed with the Commission on March 16, 2006;

(iv)Current Reports on Form 8-K filed with the Commission on March 21, 2006, March 27, 2006, April 14, 2006, September 29, 2006 and November 21, 2006;

(v)Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2006, June 30, 2006 and September 30, 2006, filed with the Commission on May 15, 2006, August 14, 2006 and November 14, 2006, respectively; and

(vi)Preliminary Proxy Statement on Schedule 14A, filed with the Commission on November 20, 2006 (the “Proxy Statement”).

(all such documents listed in clauses (i) through (vi) above (including any exhibits thereto that are expressly incorporated by reference therein) are referred to herein as the “Incorporated Documents”). Any references herein to the Offering Memorandum or the Preliminary Offering Memorandum shall be deemed to include, in each case, all amendments and supplements thereto as of the date of this Agreement and the Incorporated Documents and any amendments thereto made prior to the completion of the Offering, including without limitation the Current Report on Form 8-K filed with the Commission on December 15, 2006. The Company hereby confirms that it has authorized the use of the Offering Memorandum and the Preliminary Offering Memorandum in connection with the offering and resale of the Securities by the Initial Purchasers.

(d)This Agreement, the Securities, the Indenture, the Registration Rights Agreement, the Escrow Agreement and the Security Agreement are herein referred to as the “Offering Documents.”

2.Representations and Warranties of the Company. The Company represents and warrants to and agrees with the Initial Purchasers:

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(a)On the date hereof, the Offering Memorandum does not contain any untrue statement of a material fact, and does not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 2 do not apply to statements or omissions made in reliance upon and in conformity with information relating to the Initial Purchasers and furnished to the Company in writing by the Initial Purchasers expressly for use in the Offering Memorandum. No injunction or written order has been issued to the Company that either (i) asserts that any of the transactions contemplated by the Offering Documents is subject to the registration requirements of the Securities Act or (ii) would prevent or suspend the issuance or sale of any of the Securities or the use of the Offering Memorandum in any jurisdiction. The Company has not distributed, and will not distribute, prior to the later of the Closing Date (or any Additional Closing Date) and the completion of the Initial Purchasers’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Preliminary Offering Memorandum and the Offering Memorandum.

(b)As of their respective filing dates, each of the Incorporated Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, and the rules and regulations of the Commission thereunder applicable to the Incorporated Documents. Except as disclosed in the Offering Memorandum, as of their respective filing dates, the financial statements of each of the Company and Jazz included or incorporated by reference in the Offering Memorandum complied as to form in all material respects with then applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto, were prepared in accordance with generally accepted accounting principles in the United States, applied consistently with the past practices of the Company or Jazz, as applicable, and as of their respective dates, fairly presented in all material respects the financial position of the Company or Jazz, as applicable, and the results of their respective operations as of the time and for the periods indicated therein (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Form 10-Q, and Regulations S-K and S-X of the Commission). The financial and statistical information included or incorporated by reference in the Offering Memorandum presents fairly the information included therein and, if so required, has been prepared on a basis consistent with that of the financial statements that are included in the Incorporated Documents and is derived from the books and records of the respective entities presented therein and, to the extent such information is a range, projection or estimate, is based on the good faith belief and estimates of the management of the Company. The assumptions used in preparing the pro forma financial statements included or incorporated by reference in the Offering Memorandum provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts.

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(c)Subsequent to the respective dates as of which information is given in the Offering Memorandum, except as disclosed in the Offering Memorandum, the Company has not declared, paid or made any dividends or other distributions of any kind on or in respect of its capital stock and there has been no material adverse change or any development which could, individually or in the aggregate, have or result in a material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (i) the business, condition (financial or otherwise), results of operations, properties or prospects of the Company and the Company’s subsidiary (the “Subsidiary”) taken as a whole; (ii) the long-term debt or capital stock of the Company and the Subsidiary taken as a whole; or (iii) the ability of the Company to consummate the Offering or any of the other transactions contemplated by the Offering Documents (any such change or development being a “Material Adverse Effect”). Since the date of the latest balance sheet included or incorporated by reference in the Offering Memorandum, neither the Company nor the Subsidiary has incurred or undertaken any liabilities or obligations, whether direct or indirect, accrued or absolute, liquidated or contingent, matured or unmatured, or entered into any transactions, including any acquisition or disposition of any business or asset, which are material to the Company and the Subsidiary, individually or taken as a whole, except for liabilities, obligations and transactions which are disclosed in the Offering Memorandum.

(d)Except as contemplated by this Agreement, the Offering Documents or as disclosed in the Offering Memorandum, since September 30, 2006, through the date immediately preceding the Closing Date, the Company has not (i) issued any stock, options, bonds or other corporate securities other than pursuant to the Company’s option plans, (ii) borrowed any amount or incurred or become subject to any liabilities (absolute, accrued or contingent), other than current liabilities incurred in the ordinary course of business and liabilities under contracts entered into in the ordinary course of business, (iii) discharged or satisfied any lien, charge, mortgage, pledge, security interest, claim, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any kind whatsoever (any “Lien”) or adverse claim or paid any obligation or liability (absolute, accrued or contingent), other than current liabilities shown on the balance sheets of the Company and current liabilities incurred in the ordinary course of business, (iv) declared or made any payment or distribution of cash or other property to the stockholders of the Company or purchased or redeemed any securities of the Company, (v) mortgaged, pledged or subjected to any Lien or adverse claim any of its properties or assets, except for Liens for taxes not yet due and payable or otherwise in the ordinary course of business, (vi) sold, assigned or transferred any of its assets, tangible or intangible, except in the ordinary course of business or in an aggregate amount less than $250,000, (vii) suffered any extraordinary losses or waived any rights of material value other than in the ordinary course of business, (viii) made any capital expenditures or commitments therefor other than in the ordinary course of business or in an aggregate amount less than $250,000, (ix) entered into any other transaction other than in the ordinary course of business in an aggregate amount less than $250,000 or entered into any material transaction, whether or not in the ordinary course of business, (x) made any charitable contributions or pledges, (xi) suffered any damages, destruction or casualty loss, whether or not covered by insurance, affecting any of the properties or assets of the Company or any other properties or assets of the Company which could, individually or in the aggregate, have or result in a Material Adverse Effect, (xii) made any material change in the nature or operations of the business of the Company or (xiii) entered into any agreement or commitment to do any of the foregoing.

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(e)The authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum and, after giving effect to the Offering, will be as set forth in the Offering Memorandum. Except as disclosed in the Offering Memorandum, all of the issued and outstanding shares of capital stock of the Company are fully paid and non-assessable and have been duly and validly authorized and issued, in compliance with all applicable federal, state and foreign securities laws and are not in violation of or subject to any preemptive or similar right that does or will entitle any person, upon the issuance or sale of any security, to acquire from the Company any Common Stock or other security of the Company or any security convertible into, or exercisable or exchangeable for, Common Stock or any other such security (any “Relevant Security”).

(f)The Common Stock (including the Conversion Shares) conforms to the descriptions thereof contained in the Offering Memorandum in all material respects. Except as disclosed in, and as of the date or dates disclosed in, the Offering Memorandum, neither the Company nor the Subsidiary has outstanding warrants, options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, or any contracts or commitments to issue or sell, any Common Stock or other security of the Company or the Subsidiary or any security convertible into, or exercisable or exchangeable for, Common Stock or any other such security.

(g)Upon the stockholders’ approval of a proposal to increase the Company’s authorized shares of Common Stock sufficient to allow for the issuance of the Conversion Shares (the “Authorized Share Increase”), the Conversion Shares will have been duly authorized and reserved, and if and when issued upon conversion of the Notes in accordance with their terms and the Indenture, will be validly issued, fully paid and non-assessable, free of any preemptive or similar rights and any Liens; and will not be subject to any restriction upon the voting or transfer thereof pursuant to applicable law or the Company’s certificate of incorporation, bylaws or governing documents or any agreement to which the Company or the Subsidiary is a party or by which any of them may be bound.

(h)The Subsidiary is wholly-owned by the Company. The Subsidiary is the only subsidiary of the Company. All of the issued shares of capital stock of or other ownership interests in the Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and are owned directly or indirectly by the Company free and clear of any Lien.

(i)Each of the Company and the Subsidiary has been duly organized and validly exists as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the Company and the Subsidiary has all requisite corporate power and authority to carry on its business as described in the Offering Memorandum, and to own, lease and operate its respective properties. Each of the Company and the Subsidiary is duly qualified to do business and is in good standing as a foreign corporation in each state in the United States in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which would not reasonably be expected to cause (individually and in the aggregate) a Material Adverse Effect.

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(j)The Company has the requisite power and authority to execute, deliver and perform its obligations under the Notes. The Notes have been duly and validly authorized by the Company for issuance and, when executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and when delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of the Company free of any Liens, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except insofar as indemnification and contribution provisions may be limited by applicable law and except that the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) (the preceding exceptions, collectively, the “Enforceability Exceptions”) and will be convertible into the Conversion Shares in accordance with their terms. At the Closing Date, the Notes will be in the form contemplated by the Indenture in all material respects.

(k)The Company has the requisite power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture has been duly and validly authorized by the Company and meets the requirements for qualification under the Trust Indenture Act of 1939, as amended (the “TIA”), and, when executed and delivered by the Company (assuming the due authorization, execution and delivery by the Trustee), will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be limited by the Enforceability Exceptions.

(l)The Company has the requisite power and authority to execute, deliver and perform its obligations under this Agreement, the Registration Rights Agreement, the Security Agreement and the Escrow Agreement. This Agreement, the Registration Rights Agreement, the Security Agreement and the Escrow Agreement have been duly and validly authorized by the Company and when executed and delivered by the Company (assuming the due authorization, execution and delivery by the other parties thereto), will constitute valid and legally binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except that the enforcement thereof may be limited by the Enforceability Exceptions.

(m)There exists as of the date hereof (after giving effect to the transactions contemplated by each of the Offering Documents) no event or condition that would constitute a default or an event of default under any of the Offering Documents.

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(n)The execution, delivery, and performance of this Agreement, the Indenture, the Registration Rights Agreement, the Security Agreement and the Escrow Agreement and the consummation of the transactions contemplated by the Offering Documents do not and will not conflict with, require consent under or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under or violate or result in the creation or imposition of any Lien upon any property or assets of the Company or the Subsidiary pursuant to, (i) any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant, instrument, franchise, license or permit to which the Company or the Subsidiary is a party or by which the Company or the Subsidiary or their respective properties, operations or assets may be bound; (ii) any provision of the certificate or articles of incorporation, bylaws or other organizational documents of the Company or the Subsidiary; or (iii) any law, rule, regulation, ordinance, directive, judgment, decree or order of any judicial, regulatory or other legal or governmental agency or body, domestic or foreign, having jurisdiction over the Company, the Subsidiary or any of its or their properties; except, in the case of clauses (i) and (iii) above as have been or will be obtained, as may be required under Federal or state securities laws in connection with the filing and effectiveness of the Shelf Registration Statement as contemplated by the Registration Rights Agreement, under Federal or state securities laws in connection with the distribution of the Securities by the Initial Purchasers, in connection with the qualification of the Indenture under the TIA or in connection with the listing of the Conversion Shares on the American Stock Exchange, or could not reasonably be expected to have a Material Adverse Effect.

(o)On the Closing Date, the Security Agreement will be effective to create, in favor of the Trustee for the benefit of the holders of the Notes as security for the Notes, a valid and enforceable security interest in the Collateral (as defined in the Security Agreement). Each of the Company and the Subsidiary is a “registered organization” (as defined in Article 9 of the applicable Uniform Commercial Code) under the law of the state in which it is identified in the Indenture as being organized, and on the Closing Date all security interests granted under the Security Agreement will be duly perfected pursuant to Section 9-314 of the New York Uniform Commercial Code upon execution and delivery of the Control Agreement.

(p)Except as disclosed in the Offering Memorandum, each of the Company and the Subsidiary has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, a “Consent”) of, and has made all filings with and given all notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals as are necessary to own, lease, license and operate its respective properties and to conduct its business, and, in all material respects complying therewith, except where the failure to have any such Consent or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each of the Company and the Subsidiary is in compliance in all material respects with the rules, regulations and applicable laws and orders of the authorities and governing bodies having jurisdiction with respect thereto; and to the knowledge of the Company no event has occurred (including), without limitation, the receipt of any written notice from any such authority or governing body) that would result in or, after notice or lapse of time or both, would result in, revocation, suspension or termination of any such Consent or would result in or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Consent; except where such failure to be in compliance or the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.

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(q)Except as disclosed in the Offering Memorandum, no Consent, filing, order, registration, approval, authorization qualification of, with or from any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required by the Company for the execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement, the Security Agreement and the Escrow Agreement or consummation of the Offering and the other transactions contemplated by the Offering Documents, including the issuance, sale and delivery of the Notes (and the issuance of the Conversion Shares upon conversion of the Notes), except such Consents as may be required under the rules of the American Stock Exchange or state securities or “blue sky” laws or the approval of the Commission of a resale registration statement as contemplated by the Registration Rights Agreement. No consent, approval or authorization of the stockholders of the Company is required in connection with the issuance of the Securities.

(r)Except as disclosed in the Offering Memorandum, there is no judicial, regulatory, arbitral or other legal or governmental proceeding or other claim, action, suit, inquiry, litigation, or arbitration, domestic or foreign, pending to which the Company or the Subsidiary is a party or of which any property, operations or assets of the Company or the Subsidiary is the subject which, individually or in the aggregate, if determined adversely to the Company or the Subsidiary, could reasonably be expected to have a Material Adverse Effect, and to the best of the Company’s knowledge, no such proceeding, claim, action, suit, litigation or arbitration is threatened or contemplated. The Company has delivered to the Initial Purchasers all comment letters received from the Commission.

(s)BDO Seidman, LLP, which examined the financial statements of the Company at December 31, 2005 and the period from August 12, 2005 (inception) to December 31, 2005 contained in the Incorporated Documents, is, to the best of the Company’s knowledge, an independent public accounting firm as required by the Securities Act and the Exchange Act.

(t)The Company is subject to and in full compliance with the reporting requirements of Section 13 or 15(d) of the Exchange Act and files reports with the Commission on the EDGAR System. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and the outstanding shares of Common Stock are listed on the American Stock Exchange, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or de-listing the Common Stock from the American Stock Exchange, nor has the Company received any written notification that the Commission or the American Stock Exchange is contemplating terminating such registration or listing or that the Company is not in compliance with the continuing listing or maintenance requirements of the American Stock Exchange.

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(u)The Company and the Subsidiary have filed in a timely manner each document or report required to be filed by each pursuant to the Exchange Act, including, without limitation, the Incorporated Documents. The Company has provided the Initial Purchasers copies of all correspondence between the Company and the Commission regarding the Proxy Statement.

(v)The Company and the Subsidiary maintain a system of internal accounting and other controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with United States generally accepted accounting principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounting for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(w)To the extent required by the Exchange Act, the Company and the Subsidiary has established and maintains and evaluates “disclosure controls and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and “internal control over financial reporting” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures and internal control over financial reporting are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to each of the Company’s chief executive officer and chief financial officer by others within the Company, and such disclosure controls and procedures and internal control over financial reporting are effective to perform the functions for which they were established; the Company’s independent auditors and audit committee have been advised of: (i) all significant deficiencies, if any, in the design or operation of internal control over financial reporting which could adversely affect the Company’s ability to record, process, summarize and report financial data and (ii) all fraud, if any, whether or not material, that involves management or other employees who have a role in the Company’s internal control over financial reporting; all material weaknesses, if any, in internal control over financial reporting have been identified to the Company’s independent auditors and audit committee; since the date of the most recent evaluation of such disclosure controls and procedures and internal control over financial reporting, there have been no significant changes in internal control over financial reporting or in other factors that could significantly affect internal control over financial reporting, except for any corrective actions with regard to significant deficiencies and material weaknesses disclosed in the Offering Memorandum; the principal executive officers (or their equivalents) and principal financial officers (or their equivalents) of the Company have made all certifications required by the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and any related rules and regulations promulgated by the Commission, and the statements contained in each such certification are complete and correct; and the Company, the Subsidiary and the Company’s board of directors and officers are each in compliance in all material respects with all applicable effective provisions of the Sarbanes-Oxley Act and the rules and regulations of the Commission promulgated thereunder.

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(x)None of the Company, the Subsidiary or any of their affiliates or any person acting on its or their behalf (i) has, within the six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S) the Securities or any security of the same class or series of the Securities or (ii) has offered or will offer or sell the Securities (A) in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S under the Securities Act, by means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S. Neither the Company nor the Subsidiary has entered or will enter into any contractual arrangement with respect to the distribution of the Securities except for this Agreement and the Registration Rights Agreement.

(y)The proceeds to the Company from the offering of the Securities will not be used to purchase or carry any security in violation of Regulation T, U and X of the Board of Governors of the Federal Reserve System.

(z)Neither the Company nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken, directly or indirectly, any action that constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Securities.

(aa)Except as described in the Offering Memorandum, no holder of any Relevant Security has any rights to require registration of any Relevant Security as part or on account of, or otherwise in connection with the Offering and any of the other transactions contemplated by the Offering Documents.

(bb)The Company is not and, immediately after the sale of the Securities as contemplated hereunder will not be an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.

(cc)Except as disclosed in the Offering Memorandum, no relationship, direct or indirect, exists between or among the Company or any affiliate of the Company, on the one hand, and any director, officer, stockholder, customer or supplier of the Company or any affiliate of the Company, on the other hand, which is required by the Exchange Act to be described in the Company’s periodic reports, which is not so described as required in such reports.

(dd)Each of the Company and the Subsidiary owns or leases all such properties as are necessary to the conduct of their respective businesses as presently operated and as proposed to be operated as described in the Offering Memorandum. The Company and the Subsidiary have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all Liens except such as are described in the Offering Memorandum or such as could not reasonably be expected to have a Material Adverse Effect; and any real property and buildings held under lease or sublease by the Company and the Subsidiary are held by them under valid, subsisting and enforceable leases or subleases with such exceptions as are not material to, and do not interfere with, the use made and proposed to be made of such property and buildings by the Company and the Subsidiary.

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(ee)The Company and the Subsidiary each owns, licenses or possesses all patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in the connection with the business now operating by them that are necessary for the conduct of the business (“Intellectual Property”) of the Company and the Subsidiary, except where failure to own, license or possess or otherwise to be able to acquire such intellectual property would not singly, or in the aggregate, have a Material Adverse Effect. To the knowledge of the Company, the Intellectual Property does not infringe on or conflict with the rights or intellectual property of third parties, and neither the Company nor the Subsidiary has received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property that, singly or in the aggregate, if the subject of unfavorable decision, ruling or finding, would have a Material Adverse Effect, in each case except as described in the Offering Memorandum.

(ff)Each of the Company and the Subsidiary has prepared and timely filed all federal, state, local, foreign and other material tax returns that are required to be filed by it and has paid or made provision for the payment of all taxes, assessments, governmental or other similar charges, including, without limitation, all material sales and use taxes and all taxes which the Company or the Subsidiary is obligated to withhold from amounts owing to employees, creditors and third parties, with respect to the periods covered by such tax returns (whether or not such amounts are shown as due on any tax return). There is no tax Lien, whether imposed by any federal, state, local, foreign or other taxing authority, outstanding against the assets, properties or business of the Company or the Subsidiary.

(gg)No collective bargaining agreement covering any employee of the Company or the Subsidiary exists that is binding on either the Company or the Subsidiary, and, to the Company’s knowledge, no petition has been filed or proceeding instituted by an employee or group of employees of either the Company or the Subsidiary with the National Labor Relations Board seeking recognition of a bargaining representative. To the Company’s knowledge, no organizational effort currently is being made or threatened by or on behalf of any labor union to organize any employees of either the Company or the Subsidiary, and there is no threatened, imminent or current labor strike, dispute or organized work stoppage in effect by the employees of either the Company or the Subsidiary which could have or result in a Material Adverse Effect.

(hh)No “prohibited transaction” (as defined in either Section 406 of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”)), “accumulated funding deficiency” (as defined in Section 302 of ERISA) or other event of the kind described in Section 4043(b) of ERISA (other than events with respect to which the 30-day notice requirement under Section 4043 of ERISA has been waived) has occurred with respect to any employee benefit plan (as defined in Section 3(3) of ERISA) for which the Company or the Subsidiary would have any liability; each employee benefit plan (as defined in Section 3(3) of ERISA) for which the Company or the Subsidiary would have any liability is in compliance in all material respects with applicable law, including, without limitation, ERISA and the Code; the Company has not incurred and does not expect to incur material liability under Title IV of ERISA with respect to the termination of, or withdrawal from, any “pension plan” (as defined in Section 3(2)); and each pension plan (as defined in Section 3(2)) for which the Company would have any material liability that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the Company’s knowledge, nothing has occurred, whether by action or by failure to act, which could cause the loss of such qualification.

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(ii)Each of the Company and the Subsidiary is in compliance in all material respects with all rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (“Environmental Law”) which are applicable to its business; (ii) neither the Company nor the Subsidiary has received any written notice from any governmental authority or third party of an asserted claim under Environmental Laws; (iii) each of the Company and the Subsidiary has received all permits, licenses and other approvals required of it under applicable Environmental Laws to conduct its business and is in compliance with all terms and conditions of any such permit, license or approval; (iv) to the Company’s knowledge, no facts currently exist that will require the Company or the Subsidiary to make future material capital expenditures to comply with Environmental Laws; and (v) no property which is or has been owned, leased or occupied by the Company or the Subsidiary has been designated as a Superfund site pursuant to the Comprehensive Environmental Response, Compensation of Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) (the “CERCLA 1980”) or otherwise designated as a contaminated site under applicable state or local law. Neither the Company nor the Subsidiary has been named as a “potentially responsible party” under the CERCLA 1980. In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and the Subsidiary, in the course of which the Company identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a Material Adverse Effect.

(jj)The Company and the Subsidiary maintain insurance of the types, against such losses and in the amounts and with such insurers as are customary in the Company’s industry and otherwise reasonably prudent, including risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect, except where failure of the Company or the Subsidiary to maintain such insurance or failure of such insurance to be in full force and effect would not reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect.

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(kk)All material agreements to which the Company and the Subsidiary are parties and which are required to have been filed by the Company pursuant to the Securities Act, the Exchange Act, and the rules and regulations thereunder have been filed by the Company with the Commission. As of the date hereof, except as disclosed in the Incorporated Documents, except for those agreements that by their terms are no longer in effect and except as would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect, each such agreement is in full force and effect and is binding on the Company and, to the Company’s knowledge, is binding upon such other parties, in each case in accordance with its terms, and neither the Company nor, to the Company’s knowledge, any other party thereto is in breach of or default under any such agreement. Except as disclosed in the Incorporated Documents, the Company has not received any written notice regarding the termination of any such agreements.

(ll)Neither the Company nor the Subsidiary (i) is in violation of its certificate of incorporation, bylaws, or other organizational documents, or (ii) is in default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under or result in the creation or imposition of any Lien upon any of its property or assets pursuant to, any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant, instrument, franchise, license or permit to which it is a party or by which it is bound or to which any of its property or assets is subject, or has received a notice or claim of any such default or has knowledge of any breach of such contracts by the other party or parties thereto, except where the consequences of such violation would not reasonably be expected to have a Material Adverse Effect, and except (in the case of clause (ii) above) defaults or Liens disclosed in the Offering Memorandum.

(mm)The certificates for the shares of Common Stock (including the Conversion Shares) conform to the requirements of the American Stock Exchange and the General Corporation Law of the State of Delaware.

(nn)Except as described in the Offering Memorandum, the Company and the Subsidiary have complied with and established such boards and policies as required by the Sarbanes-Oxley Act of 2002. The Company is subject to and is in compliance with all of the requirements of the American Stock Exchange.

(oo)Other than CRT or Needham (as the Initial Purchasers), no finder, broker, agent, financial person or other intermediary has acted on behalf of the Company in connection with the sale of the Securities to the Initial Purchasers, the resale of the Notes by the Initial Purchasers or the consummation of this Agreement or any of the transactions contemplated hereby.

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(pp)The Merger Agreement is in full force and effect, and there has been no amendment to the Merger Agreement or waiver thereunder. To the Company’s knowledge, the representations and warranties made in the Merger Agreement by each of the Company and Jazz were true and complete as of the date made and are true and complete as of the date hereof (except for any representation or warranty that speaks as of a specific date, which representation or warranty is true and complete as of such date). There are no actions pending or, to the Company’s knowledge, threatened, before any court or governmental agency in which it is sought to restrain or prohibit, or obtain material damages or other relief in connection with, the Merger Agreement or the transaction contemplated therein.

(qq)Assuming the accuracy of the Initial Purchasers’ representations and warranties in Section 4 hereof and their compliance with their agreements in Section 4 hereof, the offer and sale of the Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) and Regulation D thereof; and except in connection with the registration contemplated by the Registration Rights Agreement, it is not necessary to qualify an indenture in respect of the Securities under the TIA.

The Company acknowledges that the Initial Purchasers and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Section 7 hereof, counsel to the Company and counsel to the Initial Purchasers will rely upon the accuracy and truth of the foregoing representations and hereby consents to such reliance.

3.Purchase, Sale and Delivery of the Securities

(a)On the basis of the representations, warranties, agreements and covenants herein contained and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Initial Purchasers, and the Initial Purchasers agree, severally and not jointly, to purchase from the Company, at 100% of their principal amount (subject to Section 3(c) hereof), the respective aggregate principal amount of the Firm Notes set forth opposite the Initial Purchasers’ names on Schedule 1 hereto; provided, however, that upon satisfaction of certain release conditions contained in the Escrow Agreement, 3.5% of the principal amount of the Firm Notes set forth opposite an Initial Purchaser’s name on Schedule 1 hereto will be released to such Initial Purchaser.

(b)In addition, on the basis of the representations, warranties, agreements and covenants contained herein, and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Initial Purchasers to purchase, severally and not jointly, up to $21,750,000 in aggregate principal amount Option Notes from the Company at the same price as the purchase price to be paid by the Initial Purchasers for the Firm Notes. The option granted hereunder may be exercised at any time, regardless of whether any of the Firm Notes have been converted or repurchased by the Company, on or after the Closing Date to and including the forty-fifth (45th) day following the Closing Date upon written or telegraphic notice by the Initial Purchasers to the Company, which notice may be given from time to time on one or more occasion. Such notice shall set forth (i) the amount (which shall be an integral multiple of $1,000 in aggregate principal amount at issuance) of Option Notes as to which the Initial Purchasers are exercising the option, and (ii) the time, date and place at which such Option Notes will be delivered. Such time and date of delivery is called the “AdditionalClosing Date.” The Additional Closing Date must not be later than eight (8) full business days after the Initial Purchasers exercise the option, with the actual date determined by the Initial Purchasers. If any Option Notes are to be purchased (x) each Initial Purchaser agrees, severally and not jointly, to purchase the respective aggregate principal amount of Option Notes that bears the same proportion to the total aggregate principal amount of Option Notes to be purchased as the aggregate principal amount of Firm Notes set forth on Schedule 1 hereto opposite the name of such Initial Purchaser bears to the total aggregate principal amount of Firm Notes and (y) the Company agrees to sell such Option Notes to the Initial Purchasers. The Initial Purchasers may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.

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(c)Delivery of and payment for the Notes shall be made at the offices of Bingham McCutchen LLP, at 150 Federal Street, Boston, MA 02110, on December 19, 2006, or such other date as the Initial Purchasers and the Company shall mutually agree, at such time and date being herein referred to as the “Closing Date.” The Notes shall be delivered on the Closing Date against payment of the purchase price therefore by wire transfer of immediately available funds to an account specified in writing to the Initial Purchasers by the Company. If requested by the Initial Purchasers, one or more global securities representing the Notes shall be registered by the Trustee in the name of Cede & Co., the nominee of The Depository Trust Company (“DTC”), and credited to such accounts as the Initial Purchasers shall request, upon notice to the Company at least 48 hours prior to the Closing Date.

(d)Notwithstanding anything to the contrary herein, to the extent that any subsequent purchaser of the Notes from the Initial Purchasers identified in a list to be delivered by the Initial Purchasers on the date hereof (a “Subsequent Purchaser”) has withdrawn its commitment, as set forth in such list, to purchase all or a portion of the Notes, or such Subsequent Purchaser has actually made or has threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches of commitment to purchase Notes or fails to perform in any under its commitment to purchase Notes, the Initial Purchasers’ obligation to purchase the Notes under this Agreement shall be terminated or adjusted downward on a dollar for dollar basis accordingly, at the sole discretion of the Initial Purchasers.

(e)Delivery to the Initial Purchasers of and payment for the Option Notes shall be made on the Additional Closing Date in the same manner as payment for the Firm Notes.

4.Offering by the Initial Purchasers; Representations and Warranties of the Initial Purchasers.

(a)The Initial Purchasers propose to make an offering of the Notes at the price and upon the terms set forth in the Offering Memorandum as soon as practicable after the date of this Agreement and as in the judgment of the Initial Purchasers is advisable.

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(b)Each of the Initial Purchasers, severally and not jointly, represents and warrants (as to itself only) that:

(i)It is a Qualified Institutional Buyer as defined in Rule 144A under the Securities Act (a “QIB”) and it will offer the Notes for resale only upon the terms and conditions set forth in this Agreement and in the Offering Memorandum.

(ii)It is not acquiring the Notes with a view to any distribution thereof that would violate the Securities Act or the securities laws of any state of the United States or any other applicable jurisdiction. It will solicit offers to buy the Notes only from, and will offer and sell the Notes only to persons reasonably believed by it to be, QIBs; provided, however, that in purchasing such Notes, such persons are deemed to have represented and agreed as provided under the caption “Transfer Restrictions” contained in the Preliminary Offering Memorandum and the Offering Memorandum.

(iii)No form of general solicitation or general advertising in violation of the Securities Act has been or will be used nor will any offers in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.

5.Certain Covenants. For the purposes of this Section 5, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Option Notes.

(a)The Company covenants and agrees with the Initial Purchasers that:

(i)The Company shall use the proceeds of the Offering in the manner described in the Offering Memorandum under the heading “Use of Proceeds.”

(ii)The Company will not amend or supplement the Offering Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld or delayed, other than by filing documents under the Exchange Act that are incorporated by reference therein, without notice to the Initial Purchasers. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendments or supplements to the Offering Memorandum that may be reasonably necessary or advisable in connection with the resale of the Notes by the Initial Purchasers. As soon as the Company is advised thereof, the Company will notify the Initial Purchasers and their counsel, and confirm the notice in writing, of any order preventing or suspending the use of the Offering Documents, or the suspension of the qualification or registration of the Securities for offering or the suspension of any exemption for such qualification or registration of the Securities for offering in any jurisdiction, or of the institution or threatened institution of any proceedings for any of such purposes, and the Company will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as reasonably possible the lifting thereof.

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(iii)In connection with the Offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, neither the Company nor any of its affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Notes or attempt to induce any person to purchase any Notes; and neither the Company nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.

(iv)For a period of 90 days after the date of the initial offering of the Notes by the Initial Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities of the Company that are substantially similar to the Securities, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any such substantially similar securities, except with the consent of the Initial Purchasers (which consent shall not be unreasonably withheld) and except the filing of a shelf registration statement covering the Securities and the filing of a registration statement, or post-effective amendment to the Registration Statement filed on March 9, 2006, covering the issuance of Common Stock upon exercise of the Company’s outstanding warrants and the issuance of units upon exercise of the Company’s outstanding unit purchase options, issuances of securities pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, grants of employee stock options or restricted stock pursuant to the terms of a plan approved by the Company’s stockholders, or issuances of securities pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date hereof. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Notes, except with the consent of the Initial Purchasers (which consent will not be unreasonably withheld).

(v)The Company will use its best efforts to qualify or exempt the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Initial Purchasers may reasonably designate and the Company will make such applications and furnish information as may be required for such purposes, and will continue any such qualifications or exemptions in effect for as long as may be reasonably necessary to complete the distribution of the Securities by the Initial Purchasers; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.

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(vi)If, at any time prior to the completion of the resale by the Initial Purchasers of the Securities, any event shall occur as a result of which it is necessary, in the opinion of the Company and its counsel or the reasonable judgment of the Initial Purchasers, to amend or supplement the Offering Memorandum in order to make such Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if for any other reason it shall be necessary to amend or supplement the Offering Memorandum in order to comply with applicable laws, rules or regulations, the Company shall notify the Initial Purchasers of any such event and forthwith amend or supplement such Offering Memorandum at its own expense so that, as so amended or supplemented, such Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading and will comply with all applicable laws, rules or regulations.

(vii)The Company will, without charge, provide to the Initial Purchasers and to counsel to the Initial Purchasers as many copies of each of the Offering Memorandum or any amendment or supplement thereto as the Initial Purchasers or their counsel may reasonably request.

(viii)The Company will not take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.

(ix)Neither the Company nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) will take, directly or indirectly, any action that constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Securities.

(x)The Company will cause the Notes to be eligible for clearance and settlement through DTC.

(xi)The Company will use its best efforts to effect the inclusion of the Securities in the PORTAL Market.

(xii)The Company will list the Conversion Shares for quotation on the American Stock Exchange as promptly as possible after the Merger and, in any event, no later than the effectiveness of the Shelf Registration Statement as contemplated by the Registration Rights Agreement.

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(xiii)After the Merger, the Company will, at all times, authorize, reserve and keep available, free of preemptive rights, enough shares of Common Stock for the purpose of enabling the Company to satisfy its obligations to issue the Conversion Shares upon conversion of the Notes.

(xiv)Prior to the Closing, the Company will not incur any material indebtedness or dispose of any material assets or make any material acquisition or change in its business or operations, except with the Initial Purchasers’ consent, which consent shall not be unreasonably withheld or delayed. The Company shall not, during the period commencing on the date hereof and ending on the Closing Date, issue any press release or other public communication, or hold any press conference with respect to the Company’s financial condition, results of operations or the Offering, without the prior consent of the Initial Purchasers, which consent shall not be unreasonably withheld or delayed, subject to the Company’s obligation to comply with applicable laws.

(xv)The Company shall use its reasonable best efforts to cause the Conversion Shares to be issued in compliance with all applicable federal, state and foreign securities laws and to cause the Conversion Shares not to be issued in violation of or subject to any preemptive or similar right that does or will entitle any person to acquire any Relevant Security from the Company upon issuance or sale of the Notes or the Conversion Shares.

6.Expenses. Whether or not the Offering is consummated or this Agreement is terminated (pursuant to Section 11 or otherwise), the Company agrees to pay the following costs and expenses and all other costs and expenses incident to the performance by the Company of its obligations hereunder: (a) the negotiation, preparation, printing, typing, reproduction, execution and delivery of this Agreement and of the other Offering Documents, any amendment or supplement to or modification of any of the foregoing and any and all other documents furnished pursuant hereto or thereto or in connection herewith or therewith; (b) the preparation, printing or reproduction of the Preliminary Offering Memorandum and the Offering Memorandum and each amendment or supplement; (c) the delivery (including postage, air freight charges and charges for counting and packaging) to the Initial Purchasers of such copies of each of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments or supplements to any of them as may be reasonably requested for use in connection with the offer and sale of the Notes; (d) the preparation, printing, authentication, issuance and delivery of certificates for the Notes and the Conversion Shares, including any stamp taxes in connection with the original issuance and sale of the Securities; (e) the exemption from, or registration or qualification of the Securities for offer and sale under, the securities or “blue sky” laws of the several states (including filing fees and the reasonable fees, expenses and disbursements of counsel to the Initial Purchasers relating to such registration and qualification); (f) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to and related communications with prospective purchasers of the Notes; (g) the fees and expenses of counsel (including local and special counsel, if any) for the Company; (h) fees and expenses of the Trustee, including fees and expenses of their counsel; (i) fees and expenses of the Escrow Agent and the collateral agent under the Security Agreement, including fees and expenses of its counsel; and (j) all expenses and listing fees incurred in connection with the application for listing for quotation of the Common Stock on the American Stock Exchange. Except as set forth above, the Initial Purchasers will pay all of their own costs and expenses, including without limitation, the fees and disbursements of their counsel and transfer taxes on any resales of the Securities offered by them.

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7.Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Notes. The obligations of the Initial Purchasers to purchase and pay for the Notes are subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchasers pursuant to this Section 7 of any misstatement or omission and to the following additional conditions unless waived in writing by the Initial Purchasers:

(A)The Initial Purchasers shall have received an opinion, in substantially the form of Exhibit A attached hereto, dated the Closing Date, of Cooley Godward Kronish LLP, counsel to the Company.

(B)The Initial Purchasers shall have received a comfort letter, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated December 12, 2006, of BDO Seidman, LLP, registered independent auditor of the Company.

(C)With respect to the comfort letter of BDO Seidman, LLP referred to in the preceding subsection, the Initial Purchasers shall have received a “bring-down” letter of BDO Seidman, LLP, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated the Closing Date.

(D)The Initial Purchasers shall have received a comfort letter, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated December 11, 2006, of Ernst & Young LLP, registered independent auditor of Jazz.

(E)With respect to the comfort letter of Ernst & Young LLP referred to in the preceding subsection, the Initial Purchasers shall have received a “bring-down” letter of Ernst & Young LLP, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated the Closing Date.

(F)The Initial Purchasers shall have received an opinion, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated the Closing Date, of Bingham McCutchen LLP, counsel to the Initial Purchasers.

(G)The representations and warranties of the Company contained in this Agreement shall be true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date, and the Company shall have complied in all material respects with all covenants, agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.

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(H)The representations and warranties made in the Merger Agreement by each of the Company and Jazz shall be true and complete (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date (except for any representation or warranty that speaks as of a specific date, which representation or warranty shall be true and complete in all material respects as of such date).

(I)None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance or the trading of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.

(J)Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum, there shall not have occurred any change, or any development involving a prospective change in, or affecting the business, condition (financial or other), properties or results of operations of, the Company or the Subsidiary or Jazz not disclosed in the Offering Memorandum that is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the Offering on the terms and in the manner contemplated by the Offering Memorandum.

(K)The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the Chairman and Chief Executive Officer and the President, Chief Operating Officer, Chief Financial Officer and Secretary of the Company, to the effect that to the best of their knowledge:

(i)All of the representations and warranties of the Company set forth in this Agreement are true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date, and all covenants agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with, in all material respects.

(ii)The representations and warranties made by the Company and Jazz in the Merger Agreement are true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date (except for any such representation or warranty that speaks as of a specific date, which representation or warranty is true and complete in all material respects as of such date).

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(iii)No event has occurred and is continuing, as a result of which the Offering Memorandum including all exhibits and attachments thereto would contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time it is delivered to the Initial Purchasers, not misleading.

(iv)The issuance and sale of the Notes pursuant to this Agreement and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance or the trading of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.

(v)Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum, there has not occurred (1) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of operations of the Company or the Subsidiary, not contemplated by the Offering Memorandum, except for any change or prospective change that would not reasonably be expected to result in a Material Adverse Effect upon the Company, (2) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of operations of Jazz, not contemplated by the Offering Memorandum, except for any change or prospective change that would not reasonably be expected to result in a Material Adverse Effect upon Jazz, or (3) any event or development relating to or involving the Company or the Subsidiary or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue in any material respect or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein not misleading.

(vi)At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents there shall exist no Default or Event of Default (as defined in the Indenture).

(L)Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.

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(M)The Initial Purchasers shall have confirmed sales to the Subsequent Purchasers agreeing to fund a total of $145,000,000, none of the Subsequent Purchasers shall have actually made or threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches with respect to its commitment to purchase Notes, and the Initial Purchasers shall have no reasonable good faith belief that such commitments or purchases will not be funded.

(N)All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchasers and counsel to the Initial Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.

(O)The Notes shall be eligible for clearance on DTC.

(P)At the Closing Date, the Company and the Trustee shall have entered into the Indenture, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, and the Initial Purchasers shall have received counterparts, dated the Closing Date and executed by each of the parties thereto and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.

(Q)At the Closing Date, each of the Registration Rights Agreement, the Escrow Agreement, the Security Agreement and the Control Agreement shall have been executed and delivered by all parties thereto.

(R)Except as disclosed in the Offering Memorandum, there are no pending or threatened legal or governmental proceedings to which the Company or the Subsidiary or Jazz is a party or of which any property of the Company or the Subsidiary is the subject, which, the Initial Purchasers believe, in their sole discretion, if determined adversely to the Company or the Subsidiary, would individually or in the aggregate have a Material Adverse Effect on the financial position or results of operations of the Company and the Subsidiary taken as a whole; and

(S)The Company shall have received Limited Waivers in the form of Exhibit B hereto from the parties named therein.

All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all respects to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.

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8.Indemnification.

(a)The Company shall indemnify and hold harmless (i) each Initial Purchaser, (ii) each person, if any, who controls an Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (iii) the respective members, officers, directors, partners, employees, and agents of the Initial Purchasers or any controlling person, from and against any and all losses, liabilities, claims, damages and expenses whatsoever as incurred (including, but not limited to, reasonable attorneys’ fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any investigation or litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based upon (x) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum or the Offering Memorandum or the omission or alleged omission to state in the Preliminary Offering Memorandum or the Offering Memorandum a material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading, or (y) any breach by the Company or the Subsidiary of their respective representations, warranties or agreements set forth herein or of applicable law; provided, however, that the Company will not be liable pursuant to clause (x) above in any such case to the extent, but only to the extent, that any such loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Initial Purchasers expressly for use in the section entitled “Plan of Distribution” therein. The parties acknowledge and agree that such information provided by or on behalf of the Initial Purchasers consists solely of the material identified in Section 15 hereof. This indemnity agreement will be in addition to any liability that the Company may otherwise have, including under this Agreement. In addition, with respect to any untrue statement or alleged untrue statement in, or omission or alleged omission from, the Preliminary Offering Memorandum, the Company shall not be liable to any Initial Purchaser (or its directors and officers or any person controlling such Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) from whom the person asserting any such loss, claims, damages or liabilities purchased the Notes concerned as part of the initial placement of the Notes by the Initial Purchasers hereunder, to the extent that any such loss, claims damages or liabilities asserted by such person results from the fact that there was not sent or given to such person, at or prior to the Closing, a copy of the Offering Memorandum, as amended or supplemented, if the Company had previously furnished copies thereof to such Initial Purchaser. Any amounts advanced by the Company to an indemnified party pursuant to this Agreement shall be returned to the Company if it shall be finally determined by a court of competent jurisdiction, not subject to appeal, that such indemnified party was not entitled to indemnification by the Company.

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(b)Each Initial Purchaser, severally and not jointly, shall indemnify and hold harmless (i) the Company, (ii) each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (iii) the officers, directors, partners, employees, representatives and agents of the Company, from and against any and all losses, liabilities, claims, damages and expenses whatsoever as incurred (including, but not limited to, attorneys’ fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any investigation or litigation, commenced or threatened, or any claim whatsoever and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact provided by such Initial Purchasers and contained in the section entitled “Plan of Distribution” of the Offering Memorandum, or arise out of or are based upon the omission or alleged omission to state in the section entitled “Plan of Distribution” of the Offering Memorandum a material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading, in each case to the extent, but only to the extent, that any such loss, liability, claim, damage or expense arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Initial Purchasers expressly for use therein; provided, however, that in no case shall either Initial Purchaser be liable or responsible for any amount in excess of the discounts and commissions actually received by such Initial Purchaser in connection with the sale of the Securities. The parties acknowledge and agree that such information provided by or on behalf of an Initial Purchaser consists solely of the material identified in Section 15 hereof. This indemnity will be in addition to any liability that an Initial Purchaser may otherwise have, including under this Agreement.

(c)Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify each party against whom indemnification is to be sought in writing of the commencement thereof (but the failure so to notify an indemnifying party shall not relieve it from any liability which it may have under this Section 8, except to the extent the defense of such claim or action has been materially prejudiced by such failure). In case any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate, at its own expense in the defense of such action, and to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party; provided, however, that counsel to the indemnifying party shall not (except with the written consent of the indemnified party) also be counsel to the indemnified party. Notwithstanding the foregoing, the indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by one of the indemnifying parties in connection with the defense of such action, (ii) the indemnifying parties shall not have employed counsel to take charge of the defense of such action within a reasonable time after notice of commencement of the action, (iii) the indemnifying party does not diligently defend the action after assumption of the defense, or (iv) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to one or all of the indemnifying parties (in which case the indemnifying party or parties shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses of one such counsel and any local counsel shall be borne by the indemnifying parties. No indemnifying party shall, without the prior written consent of the indemnified parties, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened claim, investigation, action or proceeding in respect of which indemnity or contribution may be or could have been sought by an indemnified party under this Section 8 or Section 9 hereof (whether or not the indemnified party is an actual or potential party thereto), unless (x) such settlement, compromise or judgment (A) includes an unconditional release of the indemnified party from all liability arising out of such claim, investigation, action or proceeding, and (B) does not include a statement as to or an admission of fault, culpability or any failure to act, by or on behalf of the indemnified party, and (y) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment.

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9.Contribution. In order to provide for contribution in circumstances in which the indemnification provided for in Section 8 is for any reason held to be unavailable from an indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and the Initial Purchasers, on the other hand, shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, liabilities, claims, damages and expenses suffered by the Company, any contribution received by the Company from persons, other than the Initial Purchasers, who may also be liable for contribution, including persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to which the Company and the Initial Purchasers may be subject, in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Initial Purchasers, on the other hand, from the offering of the Securities or, if such allocation is not permitted by applicable law in such proportion as is appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Initial Purchasers, on the other hand, shall be deemed to be in the same proportion as (a) the total proceeds from the offering of the Securities (net of discounts but before deducting expenses) received by the Company bear to (b) the discounts and commissions actually received by the Initial Purchasers, respectively. The relative fault of the Company, on the one hand, and the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in Section 8 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 9, (i) in no case shall either of the Initial Purchasers be required to contribute any amount in excess of the amount by which the discounts and commissions actually received by such Initial Purchaser in respect of the Notes resold by the Initial Purchaser in the initial placement of such Notes exceeds the amount of any damages which such Initial Purchaser has otherwise been required to pay by reason of any untrue or alleged untrue statement or omission, or alleged omission, and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9, (A) each person, if any, who controls either of the Initial Purchasers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (B) the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers or any controlling person shall have the same rights to contribution as such Initial Purchasers, and (C) each person, if any, who controls any Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (D) the officers, directors, employees, representatives and agents of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of this Section 9. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 9, notify such party or parties from whom contribution may be sought, but the failure to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 9 or otherwise. No party shall be liable for contribution with respect to any action or claim settled without its prior written consent, provided that such written consent shall not be unreasonably withheld or delayed.

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10.Survival Clause. The respective representations, warranties, agreements, covenants and indemnities of the Company and the Initial Purchasers set forth in this Agreement shall remain in full force and effect, regardless of (a) any investigation made by or on behalf of officers, directors, partners, employees, agents, representatives or controlling persons referred to in Sections 8 and 9 hereof, and (b) delivery of and payment for the Notes, and shall, subject to Section 13 hereof, be binding upon and shall, subject to Section 13 hereof, inure to the benefit of, any successors, permitted assigns, heirs and legal representatives of the Company, the Initial Purchasers and the indemnified parties referred to in Section 8 hereof. The respective agreements, covenants and indemnities set forth in Sections 6 and 8-20 hereof shall remain in full force and effect, regardless of any termination of this Agreement.

11.Termination. (a) This Agreement may be terminated in the sole discretion of the Initial Purchasers by notice to the Company if (i)  any conditions to be satisfied or obligations to be performed hereunder by the Company, including but not limited to those set forth in Section 7, or for which the Company is responsible, have not been satisfied or performed in all respects on or prior to the Closing Date, or (ii) at or prior to the Closing Date or at prior to the Additional Closing Date, as the case may be:

(A)any domestic or international event or act or occurrence has materially disrupted, or in the opinion of the Initial Purchasers will in the immediate future materially disrupt, the market for the Company’s securities or securities in general;

(B)trading on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market shall have been suspended or made subject to material limitations, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market, or by order of the Commission or other regulatory body or governmental authority having jurisdiction;

(C)a banking moratorium has been declared by any state or federal authority or if any material disruption in commercial banking or securities settlement or clearance services shall have occurred;

(D)(1) there shall have occurred any outbreak or escalation of hostilities or acts of terrorism involving the United States or there is a declaration of a national emergency or war by the United States, or (2) there shall have been any other calamity or crisis or any change in political, financial or economic conditions if the effect of any such event in (1) or (2), in the opinion of the Initial Purchasers, makes it impracticable or inadvisable to proceed with the offering, sale and delivery of the Notes on the terms and in the manner contemplated by the Offering Memorandum; or

(b)Subject to paragraph (c) below, termination of this Agreement pursuant to this Section 11 shall be without liability of any party to any other party except as provided in Section 10 hereof.

(c)If this Agreement shall be terminated pursuant to any of the provisions hereof, or if the sale of the Notes provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth herein is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof, the Company will be responsible for expenses as provided in Section 6 herein.

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12.Notices. All notices and other communications provided for or permitted hereunder shall be made in writing, shall be delivered by hand delivery, by telecopier, by courier guaranteeing overnight delivery or by first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon confirmation, if made by telecopier (provided notice is also given by some other means permitted by this Section 12), (iii) one business day after being deposited with such courier, if made by overnight courier, or (iv) on the date indicated on the notice of receipt, if made by first-class mail, to the parties as follows: to the Initial Purchasers c/o CRT Capital Group LLC, 262 Harbor Drive, Stamford, CT 06902, Attention: Christopher Chase, facsimile number: (203) 569-6890, and with a copy to Bingham McCutchen LLP, 150 Federal Street, Boston, MA 02110, Attention: John R. Utzschneider, Esq., facsimile number: (617) 951-8736, and if sent to the Company, to Acquicor Technology Inc., 4910 Birch Street, #102, Newport Beach, CA 92660, Attention: Secretary, facsimile number: (949) 266-9020, and with a copy to Cooley Godward Kronish LLP, 101 California Street, 5th Floor, San Francisco, CA 94111, Attention: Gian-Michele aMarca, facsimile number: (415) 693-2222.

13.Successors. This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers and the Company and their respective successors, permitted assigns and legal representatives, and nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained; this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person except that (a) the indemnities of the Company contained in Section 8 of this Agreement shall also be for the benefit of any person or persons who control an Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the respective officers, directors, partners, employees, agents and representatives of the Initial Purchasers and any such person or persons, and (b) the indemnities of an Initial Purchaser contained in Section 8 of this Agreement shall also be for the benefit of the directors, officers, employees, agents and representatives of the Company and any person or persons who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act. No purchaser of Securities from the Initial Purchasers will be deemed a successor or an assign because of such purchase. Prior to the Closing, no party may assign this Agreement or any of its rights hereunder without the prior written consent of the other party or parties.

14.No Waiver; Modifications in Writing. No failure or delay on the part of the Company or the Initial Purchasers in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Company or the Initial Purchasers at law or in equity or otherwise. No waiver of or consent to any departure by the Company or the Initial Purchasers from any provision of this Agreement shall be effective unless signed in writing by the party entitled to the benefit thereof; provided that notice of any such waiver shall be given to each party hereto as set forth below. Except as otherwise provided herein, no amendment, modification or termination of any provision of this Agreement shall be effective unless signed in writing by or on behalf of the Company and the Initial Purchasers. Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement, and any consent to any departure by the Company or the Initial Purchasers from the terms of any provision of this Agreement shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.

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15.Information Supplied by the Initial Purchasers. The statements set forth in the fourth, fifth, sixth, seventh and tenth paragraphs in the Offering Memorandum under the heading “Plan of Distribution” constitute the only information furnished by the Initial Purchasers to the Company for purposes of Sections 8(a) and 8(b) hereof.

16.Default by an Initial Purchaser. If either Initial Purchaser shall breach its obligations to purchase the Notes that it has agreed to purchase hereunder on the Closing Date or any Additional Closing Date, then the other Initial Purchaser may, but shall not be required to, purchase such Notes or may make arrangements satisfactory to the Company for the purchase of the Notes by other persons. If such non-defaulting Initial Purchaser does not elect to purchase such Notes and arrangements satisfactory to the Company for the purchase of such Notes are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of the non-defaulting Initial Purchaser or the Company. Nothing herein shall relieve the defaulting Initial Purchaser from liability for its default.

17.Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all prior agreements, representations, warranties, understandings and arrangements, oral or written, among the parties hereto with respect to the subject matter hereof.

18.No Fiduciary Obligations. The Company acknowledges and agrees that (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes and any related discounts and commissions and the conversion rate and other terms for the Notes, is an arm’s-length commercial transaction between the Company, on the one hand, and the Initial Purchasers, on the other hand, (ii) in connection with the offering contemplated hereby and the process leading to such transaction, each Initial Purchaser is and has been acting solely as a principal and is not the agent or fiduciary of the Company or their respective stockholders, creditors, employees or any other party, (iii) the Initial Purchasers have not assumed or will not assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Initial Purchasers have advised or are currently advising the Company or on other matters) and the Initial Purchasers have no obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the Initial Purchasers and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (v) the Initial Purchasers have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company and have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.

19.APPLICABLE LAW; JURISDICTION; WAIVER OF JURY TRIAL. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW. The Company agrees that any suit, action or proceeding against the Company arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any state or federal court in The City of New York, New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Company agrees that a final judgment in any such proceeding brought in any such court shall be conclusive and binding thereupon and may be enforced in any other court in the jurisdiction to which the Company is or may be subject by suit upon such judgment. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

20.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

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If the foregoing correctly sets forth our understanding, please indicate your acceptance thereof in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and the Initial Purchasers.

Very truly yours, ACQUICOR TECHNOLOGY INC. a Delaware corporation
By:	/s/ Gilbert F. Amelio
	Name: Gilbert F. Amelio
	Title:Chairman and Chief Executive Officer

The foregoing Agreement is hereby confirmed and accepted as of the date first above written.

CRT CAPITAL GROUP LLC

By: /s/ Christopher Chase                             

      Name: Christopher Chase                       

      Title: Managing Director                       

NEEDHAM & COMPANY, LLC

By: /s/ Joseph Dews                                     

Name: Joseph Dews                              

Title: Managing Director                     

Schedule 1

Initial Purchasers	Aggregate Principal Amount of Firm Notes to be Purchased
CRT Capital Group LLC	$	116,000,000
Needham & Company, LLC		29,000,000
	$	145,000,000

EX-99.1

Exhibit 99.1

Acquicor Technology Inc. Closes $145.0 Million Private Offering of Convertible Senior Notes

NEWPORT BEACH, CA - (December 19, 2006) - Acquicor Technology Inc. (AMEX: AQR), announced today the closing of a private placement of $145.0 million of its 8% convertible senior notes due 2011 to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933 (the “Securities Act”). In addition, Acquicor Technology Inc. has granted the initial purchasers a 45-day option to buy up to an additional $21.75 million of the notes.

The notes are convertible into shares of the company’s common stock at an initial conversion rate of 136.426 shares per $1,000 principal amount of notes, subject to adjustment in certain circumstances, which is equivalent to an initial conversion price of $7.33 per share. Pending completion of the merger of its wholly-owned subsidiary with and into Jazz Semiconductor, Inc., the gross proceeds of the offering will be placed into an escrow account. If the conditions to the release of the escrow proceeds are met, including the approval of the merger by the company’s stockholders, the net proceeds would be released to Acquicor to fund the merger consideration and for general corporate purposes. Unless the merger is not approved by the company’s stockholders, the notes will bear interest at a rate of 8% per annum and will be payable semi-annually on each June 30 and December 31, with the first payment due on June 30, 2007.

This announcement is neither an offer to sell nor a solicitation to buy any of these notes and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale is unlawful.

The notes being offered and the common stock issuable upon exchange of the notes have not been registered under the Securities Act, or any state securities laws, and may not be offered or sold in the United States, absent registration under, or an applicable exemption from, the registration requirements of the Securities Act and applicable state securities laws.

EX-99.2

Exhibit 99.2

Acquicor Technology Inc. Closes Additional $21.75 Million Private Offering of Convertible Senior Notes

NEWPORT BEACH, CA - (December 22, 2006) - Acquicor Technology Inc. (AMEX: AQR), announced today the closing of a private placement of an additional $21.75 million of its 8% convertible senior notes due 2011 to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933 (the “Securities Act”). On December 19, 2006, Acquicor Technology Inc. announced the closing of $145.0 million of the notes.

The notes are convertible into shares of the company’s common stock at an initial conversion rate of 136.426 shares per $1,000 principal amount of notes, subject to adjustment in certain circumstances, which is equivalent to an initial conversion price of $7.33 per share. Pending completion of the merger of its wholly-owned subsidiary with and into Jazz Semiconductor, Inc., the gross proceeds of the offering will be placed into an escrow account. If the conditions to the release of the escrow proceeds are met, including the approval of the merger by the company’s stockholders, the net proceeds would be released to Acquicor to fund the merger consideration and for general corporate purposes. Unless the merger is not approved by the company’s stockholders, the notes will bear interest at a rate of 8% per annum and will be payable semi-annually on each June 30 and December 31, with the first payment due on June 30, 2007.

This announcement is neither an offer to sell nor a solicitation to buy any of these notes and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale is unlawful.

The notes being offered and the common stock issuable upon exchange of the notes have not been registered under the Securities Act, or any state securities laws, and may not be offered or sold in the United States, absent registration under, or an applicable exemption from, the registration requirements of the Securities Act and applicable state securities laws.