EXHIBIT 4.5
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT.
VOID AFTER EXPIRATION DATE
WARRANT
To Purchase 136,054 Ordinary Shares of
RADA ELECTRONIC INDUSTRIES LTD.
THIS CERTIFIES that, for value received, The Shaar Fund (the "Holder") is
entitled, upon the terms and subject to the conditions set forth in this Warrant
at any time on or after the date hereof and on or prior to the close of business
on June 30, 2010 (the "Termination Date") but not thereafter, to subscribe for
and purchase from RADA Electronic Industries Ltd., a company incorporated under
the laws of the State of Israel (the "Company"), up to 136,054 Ordinary Shares
of the Company, nominal value NIS 0.15 each (the "Warrant Shares") at a purchase
price as detailed in Section 2 hereof (the "Exercise Price"). The Exercise Price
and the number of shares for which the Warrant is exercisable shall be subject
to adjustment as provided herein.
This Warrant amends, supplements, modifies and completely restates the
Warrant, effective as of June 30, 2002 (the "EXISTING WARRANT"), issued by the
Company to the Holder. This Warrant is one of the series of Extended Warrants
(as defined in the Exchange Agreement, as defined below) to purchase Warrant
Shares (together with the Restated Warrants (as defined in the Exchange
Agreement), the "SPA WARRANTS") issued pursuant to the Amendment and Exchange
Agreement dated as of June 29, 2007, by and among the Company and each of the
other Investors detailed therein (the "EXCHANGE AGREEMENT").
1. TITLE TO WARRANT. Prior to the Termination Date and subject to
compliance with applicable laws and the provisions of Section 8 hereof,
this Warrant and all rights hereunder are transferable, in whole or in
part, at the office or agency of the Company by the holder hereof in person
or by duly authorized attorney, upon surrender of this Warrant together
with the Assignment Form annexed hereto properly endorsed.
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2. EXERCISE PRICE. This Warrant this Warrant shall be exercisable, in
whole or in part, at an exercise price equal to the higher of: (i) $6.0 per
share or (ii) 50% of the average closing price during the ten (10) trading
days prior to an exercise date (the "Exercise Price").
3. AUTHORIZATION OF SHARES. The Company covenants that all shares
issuable upon the exercise of rights represented by this Warrant will, upon
exercise of the rights represented by this Warrant, be duly authorized and
be capable of being validly issued as fully paid and non-assessable and
free from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously
with such issue).
4. EXERCISE OF WARRANT. Exercise of the purchase rights represented by
this Warrant may be made at any time or times in whole or in part and
before the close of business on the Termination Date by the surrender of
this Warrant and the Notice of Exercise Form annexed hereto duly executed,
at the office of the Company (or such other office or agency of the Company
as it may designate by notice in writing to the registered holder hereof at
the address of such holder appearing on the books of the Company) and upon
payment of the Exercise Price of the shares thereby purchased by wire
transfer or cashier's check , whereupon the holder of this Warrant shall be
entitled to receive a certificate for the number of Warrant Shares
purchased. Certificates for Warrant Shares purchased hereunder shall be
delivered to the holder hereof within reasonable time after the date on
which this Warrant shall have been exercised as aforesaid. This Warrant
shall be deemed to have been exercised and such certificate or certificates
shall be deemed to have been issued, and Holder or any other person so
designated to be named therein shall be deemed to have become a holder of
record of such shares for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the Exercise Price and all taxes
required to be paid by Holder, if any, pursuant to Section 5 prior to the
issuance of such shares, have been paid. If this Warrant shall have been
exercised in part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver to Holder
a new Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in all
other respects be identical with this Warrant.
5. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share that the Holder would otherwise be
entitled to purchase upon such exercise, the Company shall round the number
of Warrant Shares issuable upon such exercise to next whole number.
6. CHARGES, TAXES AND EXPENSES. Issuance of certificates for Warrant
Shares upon the exercise of this Warrant shall be made without charge to
the holder hereof for any issue or transfer tax or other incidental expense
in respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall be
issued in the name of the holder of this Warrant or in such name or names
as may be directed by the holder of this Warrant; provided, however, that
in the event certificates are to be issued in a name other than the name of
the Holder, this Warrant when surrendered for exercise shall be accompanied
by the Assignment Form attached hereto duly executed by the Holder hereof;
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
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7. CLOSING OF BOOKS. The Company will not close its shareholder books
or records in any manner that prevents the timely exercise of this Warrant.
8. TRANSFER, DIVISION AND COMBINATION. (a) Subject to compliance with
any applicable securities laws, transfer of this Warrant and all rights
hereunder, in whole or in part, shall be registered on the books of the
Company to be maintained for such purpose, upon surrender of this Warrant
at the principal office of the Company, together with he Assignment Form
attached hereto duly executed by Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company
shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denomination or denominations specified in
such instrument of assignment, and shall issue to the assignor a new
Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. A new holder for the purchase of
Warrant Shares, if properly assigned, may exercise a Warrant, without
having a new Warrant issued.
(b) This Warrant may be divided or combined with other Warrants
upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations
in which new Warrants are to be issued, signed by Holder or its agent
or attorney. Subject to compliance with Section 8(a), as to any
transfer which may be involved in such division or combination, the
Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
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(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under
this Section 8.
9. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. This Warrant does not
entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon the surrender
of this Warrant and the payment of the aggregate Exercise Price, the
Warrant Shares so purchased shall be and be deemed to be issued to such
holder as the record owner of such shares as of the close of business on
the later of the date of such surrender or payment.
10. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant or any share certificate relating to the Warrant Shares, and in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which shall not include the posting of any bond), and
upon surrender and cancellation of such Warrant or share certificate, if
mutilated, the Company will make and deliver a new Warrant or share
certificate of like tenor and dated as of such cancellation, in lieu of
such Warrant or stock certificate.
11. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day
for the taking of any action or the expiration of any right required or
granted herein shall not be a business day including' without limitation,
Saturday, Sunday or a legal holiday in Israel or in the US, then such
action may be taken or such right may be exercised on the next succeeding
day not a Saturday, Sunday or legal holiday.
12. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. (a)
The number and kind of securities purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time to
time upon the happening of any of the following: (i) In case the Company
shall declare or pay a dividend in shares or make a distribution in shares
to holders of its outstanding Ordinary Shares, (ii) In case the Company
shall subdivide its outstanding Ordinary Shares into a greater number of
shares, or (iii) combine its outstanding Ordinary Shares into a smaller
number of shares, then the number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior thereto shall be adjusted so
that the holder of this Warrant shall be entitled to receive the kind and
number of Warrant Shares or other securities of the Company which he would
have owned or have been entitled to receive had such Warrant been exercised
in advance thereof. Upon each such adjustment of the kind and number of
Warrant Shares or other securities of the Company which are purchasable
hereunder, the holder of this Warrant shall thereafter be entitled to
purchase the number of Warrant Shares or other securities resulting from
such adjustment at an Exercise Price per Warrant Share or other security
obtained by multiplying the Exercise Price in effect immediately prior to
such adjustment by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number of Warrant
Shares or other securities of the Company resulting from such adjustment.
An adjustment made pursuant to this paragraph shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
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(b) In case the Company shall reorganize its capital, reclassify
its capital, consolidate or merge with or into another corporation
(where the Company is not the surviving corporation or where there is
a change in or distribution with respect to the Ordinary Shares of the
Company), or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another
corporation and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of assets,
Ordinary Shares or shares of common stock of the successor or
acquiring corporation, or any cash, shares of stock or other
securities or property of any nature whatsoever (including warrants or
other subscription or purchase rights) in addition to or in lieu of
common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of
Ordinary Shares of the Company, then Holder shall have the right
thereafter to receive, upon exercise of this Warrant, the number of
shares of common stock of the successor or acquiring corporation or of
the Company, if it is the surviving corporation, and Other Property
receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a
holder of the number of Ordinary Shares for which this Warrant is
exercisable immediately prior to such event. In case of any such
reorganization, reclassification, merger, consolidation or disposition
of assets, the successor or acquiring corporation (if other than the
Company) shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Warrant
to be performed and observed by the Company and all the obligations
and liabilities hereunder, subject to such modifications as may be
deemed appropriate (as determined in good faith by resolution of the
Board of Directors of the Company) in order to provide for adjustments
of Warrant Shares for which this Warrant is exercisable which shall be
as nearly equivalent as practicable to the adjustments provided for in
this Section 11. For purposes of this Section 12, "common stock of the
successor or acquiring corporation" shall include stock of such
corporation of any class which is not preferred as to dividends or
assets over any other class of stock of such corporation and which is
not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are
convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the happening
of a specified event and any warrants or other rights to subscribe for
or purchase any such stock.
(c) Whenever the number of Warrant Shares or number or kind of
securities or other property purchasable upon the exercise of this
Warrant or the Exercise Price is adjusted, as herein provided, the
Company shall promptly mail by registered or certified mail, to the
holder of this Warrant notice of such adjustment or adjustments
setting forth the number of Warrant Shares (and other securities or
property) purchasable upon the exercise of this Warrant and the
Exercise Price of such Warrant Shares (and other securities or
property) after such adjustment, setting forth a brief statement of
the facts requiring such adjustment and setting forth the computation
by which such adjustment was made. Such notice, in the absence of
manifest error, shall be exclusive evidence of the correctness of such
adjustment.
(d) In the event that, at any time, as a result of an adjustment
made pursuant to this Section, the holder of this Warrant shall become
entitled to purchase any securities of the Company other than Ordinary
Shares, hereafter the number of such other shares so purchasable upon
exercise of this Warrant and the Exercise Price of such shares shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Warrant Shares contained in paragraph (a) through (c) inclusive, of
this Section 12.
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13. REGISTRATION RIGHTS; RULE 144. (a) This Warrant and the Warrant
Shares shall be restricted securities pursuant to Rule 144 of Regulation D
for a period of 12 months following the date hereof. As soon as practicable
after the date hereof, but in no event later than July 30, 2007, the
Company shall file a prospectus supplement to Registration Statement No.
333- 115598 to reflect the transactions contemplated hereby including
change in the Expiration Date and the Exercise Price of this Extended
Warrant.
(b) At all times during which any Warrant Shares are outstanding,
the Company agrees to:
(i) Make and keep available adequate current public
information as described in Rule 144(c) under the Securities Act;
(ii) File with the U.S. Securities and Exchange Commission
in a timely manner all reports and other documents required of
the Company under the Securities Act and the Securities Exchange
Act of 1934; and
(iii) Furnish to the Holder upon request (A) a written
statement by the Company as to its compliance with the
requirements of subparagraphs (i) and (ii) above, (B) a copy of
the most recent annual report of the Company, and (C) such other
reports and documents of the Company as the Holder may reasonably
request to avail himself of Rule 144 or any similar rule or
regulation of the Securities and Exchange Commission allowing him
to sell any such securities without registration.
14. NOTICE OF CORPORATE ACTION. If at any time:
(a) the Company shall take a record of the holders of its
Ordinary Shares for the purpose of entitling them to receive a
dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any
class or any other securities or property, or to receive any other
right, or
(b) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the share capital of the
Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation
or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
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then, in any one or more of such cases, the Company shall give to Holder (i) at
least 14 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 14
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Ordinary Shares shall be
entitled to exchange their shares for securities or other property deliverable
upon such disposition, dissolution, liquidation or winding up. Each such written
notice shall be sufficiently given if addressed to Holder at the last address of
Holder appearing on the books of the Company and delivered in accordance with
this Warrant.
15. AUTHORIZED SHARES. The Company covenants that within 180 days of
the date hereof, it will reserve from its authorized and unissued Ordinary
Shares, and keep available free from preemptive rights, a sufficient number
of Ordinary Shares to provide for the issuance of the Warrant Shares upon
the exercise of any purchase rights under this Warrant and will, at its
expense, procure such listing of such Ordinary Shares (subject to issuance
or notice of issuance) as then may be required on all stock exchanges on
which the Ordinary Shares are then listed or on NASDAQ. The Company further
covenants that its issuance of this Warrant shall constitute full authority
to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the
Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to
assure that such Warrant Shares may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of
all stock exchanges upon which the Ordinary Shares may be listed or on
NASDAQ.
The Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at
all times in good faith assist in the carrying out of all such terms and in
the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder against impairment.
16. MISCELLANEOUS.
(a) JURISDICTION. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a
contract under the laws of State of Israel without regard to its
conflict of law, principles or rules, and be subject to the exclusive
jurisdiction of the competent court in Tel Aviv.
(b) RESTRICTIONS. The holder hereof acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal
securities laws.
(c) WAIVER. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder's rights, powers or
remedies, notwithstanding all rights hereunder terminate on the
Termination Date.
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(d) LIMITATION OF LIABILITY. No provision hereof, in the absence
of affirmative action by Holder to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of Holder hereof, shall
give rise to any liability of Holder for the purchase price of any
Ordinary Share or as a shareholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
(e) SUCCESSORS AND ASSIGNS. Subject to applicable securities
laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of
the Company and the successors and permitted assigns of Holder. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and shall be enforceable by
any such Holder or holder of Warrant Shares and all references to the
"Holder" shall include a reference to his assigns, personal
representatives and successors in title.
(f) AMENDMENT. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and
the Holder.
(g) SEVERABILITY. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant shall
be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(h) HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
(i) DEFINITION OF ORDINARY SHARES. For the purpose of this
Warrant the term "Ordinary Shares" shall mean the ordinary shares of
0.015 NIS (New Israeli Shekels) of the Company.
REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officer thereunto duly authorized.
Dated: June 30, 2007
RADA Electronic Industries Ltd.
By: _______________________________________
Herzle Bodinger, President and Chairman
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NOTICE OF EXERCISE
To: RADA Electronic Industries Ltd.
(1)The undersigned hereby elects to purchase ________ Ordinary Shares (the
"Shares"), of RADA Electronic Industries Ltd. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2)Please issue a certificate or certificates representing said Shares in
the name of the undersigned or in such other name as is specified below:
________________________________________
(Name)
________________________________________
(Address)
________________________________________
Dated:
______________________________
Signature
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
_______________________________________________ whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
