WARRANT AGREEMENT
Agreement
made as of _____________, 2006 between Advanced Technology Acquisition Corp.,
a
Delaware corporation, with offices at 14 A Achimeir Street, Ramat Gan 52587,
Israel (“Company”), and Continental
Stock Transfer & Trust Company, a New York corporation, with offices at 00
Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000 (“Warrant Agent”).
WHEREAS,
the Company has received a binding commitment from [______________]
(the
“Insider”), to purchase an aggregate of 2,000,000 warrants (“Founder Warrants”);
and
WHEREAS,
the Company is engaged in a public offering (“Public Offering”) of Units and, in
connection therewith, has determined to issue and deliver up to (i) 25,000,000
warrants to the public investors ("Public Warrants"), and (ii) 1,500,000 Units,
which include 1,500,000 warrants to CRT Capital Group LLC (“CRT”) or its
designees (“Underwriter Warrants” and, together with the Public Warrants and
Founder Warrants, the “Warrants”), evidencing the right of the holders of the
Warrants to purchase one share of the Company’s common stock, par value $.0001
per share (“Common Stock”), for $6.00 subject to adjustment as described herein;
and
WHEREAS,
the Company has filed with the Securities and Exchange Commission a Registration
Statement on Form X-0, Xx. 000 [___________] (“Registration Statement”), for the
registration, under the Securities Act of 1933, as amended (“Act”) of, among
other securities, the Warrants and the Common Stock issuable upon exercise
of
the Warrants; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and
the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
and
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and
the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of
this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Appointment
of Warrant Agent.
The
Company hereby appoints the Warrant Agent to act as agent for the Company for
the Warrants, and the Warrant Agent hereby accepts such appointment and agrees
to perform the same in accordance with the terms and conditions set forth in
this Agreement.
2. Warrants.
2.1. Form
of Warrant.
Each
Warrant shall be issued in registered form only, shall be in substantially
the
form of Exhibit A hereto, the provisions of which are incorporated herein and
shall be signed by, or bear the facsimile signature of, the Chairman of the
Board, Chief Executive Officer, or President and Treasurer, Secretary or
Assistant Secretary of the Company and shall bear a facsimile of the Company’s
seal. In the event the person whose facsimile signature has been placed upon
any
Warrant shall have ceased to serve in the capacity in which such person signed
the Warrant before such Warrant is issued, it may be issued with the same effect
as if he or she had not ceased to be such at the date of issuance.
2.2. Effect
of Countersignature.
Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant shall be invalid and of no effect and may not be exercised by the holder
thereof.
2.3. Registration.
2.3.1. Warrant
Register.
The
Warrant Agent shall maintain books (“Warrant Register”), for the registration of
original issuance and the registration of transfer of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register
the
Warrants in the names of the respective holders thereof in such denominations
and otherwise in accordance with instructions delivered to the Warrant Agent
by
the Company.
2.3.2. Registered
Holder.
Prior
to due presentment for registration of transfer of any Warrant, the Company
and
the Warrant Agent may deem and treat the person in whose name such Warrant
shall
be registered upon the Warrant Register (“registered holder”), as the absolute
owner of such Warrant and of each Warrant represented thereby (notwithstanding
any notation of ownership or other writing on the Warrant Certificate made
by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
2.4. Detachability
of Warrants.
The
securities comprising the Units will begin to trade separately on the 65th
day
after the date hereof unless CRT informs the Company of its decision to allow
earlier separate trading, but in no event will CRT allow separate trading of
the
securities comprising the Units until the Company files a Current Report on
Form
8-K which includes an audited balance sheet reflecting the receipt by the
Company of the gross proceeds of the Public Offering including the proceeds
received by the Company from the exercise of the Underwriter over-allotment
option, if the over-allotment option is exercised prior to the filing of the
Form 8-K.
2.5. Warrant
Attributes.
Except
as otherwise provided in this Agreement, the Founder Warrants and the
Underwriter Warrants shall have the same terms and be in the same form as the
Public Warrants except that (a) the Founder Warrants shall always be exercisable
on a cashless basis at the discretion of the holder, (b) the Exercise Period
(as
defined below) for the Founder Warrants shall commence upon the consummation
by
the Company of a Business Combination (as defined below), and (c) the Exercise
Period of the Underwriter Warrants shall terminate the earlier to occur of
(i) ___________, 2011 or (ii) the Expiration Date (as defined
below).
3. Terms
and Exercise of Warrants.
3.1. Warrant
Price.
Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Public Warrant and of this
Warrant Agreement, to purchase from the Company the number of shares of Common
Stock stated therein, at the price of $6.00 per whole share, subject to the
adjustments provided in Section 4 hereof and in the last sentence of this
Section 3.1. The term “Warrant Price” as used in this Warrant Agreement refers
to the price per share at which Common Stock may be purchased at the time a
Warrant is exercised. The Company in its sole discretion may lower the Warrant
Price at any time prior to the Expiration Date.
3.2. Duration
of Warrants.
A
Warrant may be exercised only during the period (“Exercise Period”), which (a)
for the Public Warrants, shall commence on the later of (i) the consummation
by
the Company of a merger, capital stock exchange, asset acquisition, stock
purchase or other similar business combination with a technology or
technology-related business that has operations or facilities located in Israel,
or that intends to establish operations or facilities in Israel, such as
research and development, manufacturing or executive offices, following the
Company's initial business combination with a target business (“Business
Combination”) (as described more fully in the Company’s Registration Statement)
and (ii) __________, 2007, and shall terminate at 5:00 p.m., New York City
time
on the earlier to occur of (i) ___________, 2010 and (ii) the date
fixed for redemption of the Warrants as provided in Section 6 of this Agreement
(“Expiration Date”); (b) for the Underwriter Warrants, shall commence on the
later of (i) the consummation of a Business Combination and (ii) __________,
2007, and shall terminate at 5:00 p.m., New York City time on the earlier to
occur of (i) ___________, 2011 and (ii) the Expiration Date; and (c)
for the Founder Warrants, shall commence upon the consummation of a Business
Combination and shall terminate at 5:00 p.m., New York City time on the earlier
to occur of (i) ___________, 2010 and (ii) the Expiration Date. Except
with respect to the right to receive the Redemption Price (as set forth in
Section 6 hereunder), each Warrant not exercised on or before the Expiration
Date shall become void, and all rights thereunder and all rights in respect
thereof under this Agreement shall cease at the close of business on the
Expiration Date. The Company in its sole discretion may extend the duration
of
the Warrants by delaying the Expiration Date.
3.3. Exercise
of Warrants.
3.3.1. Payment.
Subject
to the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the City and State of New York, with
the
subscription form, as set forth in the Warrant, duly executed, and by paying
in
full, in lawful money of the United States, in cash, good certified check or
good bank draft payable to the order of the Company (or as otherwise agreed
to
by the Company), the Warrant Price for each full share of Common Stock as to
which the Warrant is exercised and any and all applicable taxes due in
connection with the exercise of the Warrant, the exchange of the Warrant for
the
Common Stock, and the issuance of the Common Stock;
(a)
provided, however, that with respect to any Founder Warrants purchased by the
Insider, so long as such Founder Warrants are held by the Insider or its
affiliates, such holders may, at their discretion, pay the Warrant Price by
surrendering the Founder Warrants for that number of shares of Common Stock
equal to the quotient obtained by dividing (x) the product of the number of
shares of Common Stock underlying the Warrants, multiplied by the difference
between the Warrant Price and the "Fair Market Value" (defined below) by (y)
the
Fair Market Value. The "Fair Market Value" shall mean the average reported
last
sales price of the Common Stock in the principal trading market for the Common
Stock as reported by any national securities exchange or quoted on the NASD
OTC
Bulletin Board (or successor exchange), as the case may be, for
the
five trading days ending on the trading day preceding the date the Founder
Warrants are exercised; and
(b)
provided further, however, that with respect to any outstanding Warrants,
in the event the Company calls such Warrants for redemption, the Company shall
have the ability to determine whether holders of those Warrants shall be
required to pay the Warrant Price in cash or whether they shall be required
to
exercise the warrants on a cashless basis, in which case the holder of such
Warrants (including the Founder Warrants) shall pay the Warrant Price by
surrendering such Warrants for that number of shares of Common Stock equal
to
the quotient obtained by dividing (x) the product of the number of shares of
Common Stock underlying the Warrants, multiplied by the difference between
the
Warrant Price and the “redemption fair market value” (defined below) by
(y) the redemption fair market value. The “redemption fair market value”
shall mean the average reported last sale price of the Common Stock for the
ten
trading days ending on the third trading day prior to the date on which the
notice of redemption is sent to holders of such Warrants.
3.3.2. Issuance
of Certificates.
As soon
as practicable after the exercise of any Warrant and the clearance of the funds
in payment of the Warrant Price or upon surrender of the Warrant (or portion
thereof) as set forth in Section 3.3.1(a), the Company shall issue to the
registered holder of such Warrant a certificate or certificates for the number
of full shares of Common Stock to which he is entitled, registered in such
name
or names as may be directed by him, her or it, and if such Warrant shall not
have been exercised or surrendered in full, a new countersigned Warrant for
the
number of shares as to which such Warrant shall not have been exercised or
surrendered. Notwithstanding the foregoing, the Company shall not be obligated
to deliver any securities pursuant to the exercise of a Public Warrant or a
Underwriter Warrants and shall have no obligation to settle the Warrant exercise
unless a registration statement under the Act with respect to the Common Stock
is effective and a current prospectus with respect to the Common Stock issuable
upon exercise of the Warrants is available for delivery to the Warrant holders,
subject to the Company’s satisfying its obligations under Section 7.4 to use its
best efforts. In the event that a registration statement with respect to the
Common Stock underlying a Public Warrant or a Underwriter Warrants is not
effective under the Act, the holder of such Public Warrant or Underwriter
Warrants shall not be entitled to exercise such Warrant and such Warrant may
have no value and expire worthless. In no event will the Company be required
to
net cash settle the warrant exercise. Public Warrants and Underwriter Warrants
may not be exercised by, or securities issued to, any registered holder in
any
state in which such exercise would be unlawful. The shares of common stock
issuable upon exercise of the Founder Warrants shall be unregistered shares.
No
Warrant other than the Founder Warrants will be exercisable, and the Company
will not be obligated to issue shares of common stock unless, at the time a
holder of the Underwriter Warrants or a holder of the Public Warrants seeks
to
exercise such warrant, a prospectus relating to the common stock issuable upon
exercise of the non-Founder Warrant is current and the common stock has been
registered or qualified or deemed to be exempt under the securities laws of
the
state of residence of the holder of such warrants.
3.3.3. Valid
Issuance.
All
shares of Common Stock issued upon the proper exercise or surrender of a Warrant
in conformity with this Agreement shall be validly issued, fully paid and
nonassessable.
3.3.4. Date
of Issuance.
Each
person in whose name any such certificate for shares of Common Stock is issued
shall for all purposes be deemed to have become the holder of record of such
shares on the date on which the Warrant was surrendered and payment of the
Warrant Price was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall
be
deemed to have become the holder of such shares at the close of business on
the
next succeeding date on which the stock transfer books are open.
4. Adjustments.
4.1. Stock
Dividends; Split-Ups.
If
after the date hereof, and subject to the provisions of Section 4.6 below,
the
number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock, or by a split-up of shares of Common Stock,
or other similar event, then, on the effective date of such stock dividend,
split-up or similar event, the number of shares of Common Stock issuable on
exercise of each Warrant shall be increased in proportion to such increase
in
outstanding shares of Common Stock.
4.2. Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6, the
number of outstanding shares of Common Stock is decreased by a consolidation,
combination, reverse stock split or reclassification of shares of Common Stock
or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number
of shares of Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common
Stock.
4.3. Adjustments
in Exercise Price.
Whenever the number of shares of Common Stock purchasable upon the exercise
of
the Warrants is adjusted, as provided in Sections 4.1 and 4.2 above, the Warrant
Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise
of
the Warrants immediately prior to such adjustment, and (y) the denominator
of
which shall be the number of shares of Common Stock so purchasable immediately
thereafter. The Warrants will not be adjusted for issuances of common stock
at a
price below their respective exercise prices.
4.4. Replacement
of Securities upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Section 4.1 or 4.2 hereof or that
solely affects the par value of such shares of Common Stock), or in the case
of
any merger or consolidation of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the assets or other property
of
the Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the Warrant holders shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise
of
the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares
of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be
made pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The
provisions of this Section 4.4 shall similarly apply to successive
reclassifications, reorganizations, mergers or consolidations, sales or other
transfers.
4.5. Notices
of Changes in Warrant.
Upon
every adjustment of the Warrant Price or the number of shares issuable upon
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to each Warrant holder, at the last address set forth for such holder
in
the warrant register, of the record date or the effective date of the event.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such event.
4.6. No
Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the holder of any Warrant would be entitled, upon the exercise of such Warrant,
to receive a fractional interest in a share, the Company shall, upon such
exercise, round up to the nearest whole number the number of the shares of
Common Stock to be issued to the Warrant holder.
4.7. Form
of Warrant.
The
form of Warrant need not be changed because of any adjustment pursuant to this
Section 4, and Warrants issued after such adjustment may state the same Warrant
Price and the same number of shares as is stated in the Warrants initially
issued pursuant to this Agreement. However, the Company may at any time in
its
sole discretion make any change in the form of Warrant that the Company may
deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
an
outstanding Warrant or otherwise, may be in the form as so changed.
5. Transfer
and Exchange of Warrants.
5.1. Registration
of Transfer.
The
Warrant Agent shall register the transfer, from time to time, of any outstanding
Warrant upon the Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued and the
old
Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled
shall
be delivered by the Warrant Agent to the Company from time to time upon
request.
5.2. Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and thereupon the Warrant Agent shall issue
in
exchange therefor one or more new Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant surrendered for
transfer bears a restrictive legend, the Warrant Agent shall not cancel such
Warrant and issue new Warrants in exchange therefor until the Warrant Agent
has
received an opinion of counsel for the Company stating that such transfer may
be
made and indicating whether the new Warrants must also bear a restrictive
legend.
5.3. Fractional
Warrants.
The
Warrant Agent shall not be required to effect any registration of transfer
or
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
5.4. Service
Charges.
No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.5. Warrant
Execution and Countersignature.
The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to
the provisions of this Section 5, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
6. Redemption.
6.1. Redemption.
Subject
to Section 6.4 hereof, not less than all of the outstanding Warrants may be
redeemed, at the option of the Company, at any time while they are
exercisable and prior to their expiration, at the office of the Warrant Agent,
upon the notice referred to in Section 6.2, at the price of $.01 per
Warrant (“Redemption Price”), provided that the last sales price of the Common
Stock has been at least $11.50 per share, for any twenty (20) trading days
within any thirty (30) consecutive trading day period ending on the third
business day prior to the date on which notice of redemption is given. In the
event the Company calls the Warrants for redemption pursuant to this Section
6.1, the Company shall have the ability to determine whether holders of those
Warrants shall be required to pay the Warrant Price in cash or whether they
shall be required to exercise the Warrants on a cashless basis. If the Company
requires holders of the Warrants to exercise the Warrants on a cashless basis,
the holder of such Warrants (including the Founder Warrants) shall pay the
Warrant Price by surrendering such Warrants for that number of shares of Common
Stock equal to the quotient obtained by dividing (x) the product of the number
of shares of Common Stock underlying the Warrants, multiplied by the difference
between the Warrant Price of the Warrants and the “redemption fair market value”
(defined below) by (y) the redemption fair market value. The “redemption
fair market value” shall mean the average reported last sale price of the Common
Stock for the ten trading days ending on the third trading day prior to the
date
on which the notice of redemption is sent to holders of the Warrants.
Notwithstanding anything to the contrary contained herein, the Company shall
not
call the Warrants for redemption unless there is an effective registration
statement under the Act relating to the shares of Common Stock issuable upon
exercise of the Warrants and a prospectus is available.
6.2. Date
Fixed for, and Notice of, Redemption.
In the
event the Company shall elect to redeem all of the Warrants, the Company shall
fix a date for the redemption. Notice of redemption shall be mailed by first
class mail, postage prepaid, by the Company not less than 30 days prior to
the
date fixed for redemption to the registered holders of the Warrants to be
redeemed at their last addresses as they shall appear on the registration books.
Any notice mailed in the manner herein provided shall be conclusively presumed
to have been duly given whether or not the registered holder received such
notice.
6.3. Exercise
After Notice of Redemption.
The
Warrants may be exercised, for cash (or on a “cashless basis” in accordance with
Section 3.3.1 of this Agreement) at any time after notice of redemption shall
have been given by the Company pursuant to Section 6.2 hereof and prior to
the
time and date fixed for redemption. On and after the redemption date, the record
holder of the Warrants shall have no further rights except to receive, upon
surrender of the Warrants, the Redemption Price.
6.4. Outstanding
Warrants Only.
The
Company understands that the redemption rights provided for by this Section
6
apply only to outstanding Warrants. To the extent a person holds rights to
purchase Warrants, such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are exercised, the Company may redeem the
Warrants issued upon such exercise provided that the criteria for redemption
is
met. The provisions of this Section 6.4 may not be modified, amended or deleted
without the prior written consent of CRT.
7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1. No
Rights as Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
7.2. Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include
the
surrender thereof), issue a new Warrant of like denomination, tenor, and date
as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant
shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
time
enforceable by anyone.
7.3. Reservation
of Common Stock.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Warrants issued pursuant to this
Agreement.
7.4. Registration
of Common Stock.
The
Company agrees that prior to the commencement of the Exercise Period, it shall
file with the Securities and Exchange Commission a post-effective amendment
to
the Registration Statement, or a new registration statement, for the
registration, under the Act of the Common Stock issuable upon exercise of the
Warrants and it shall use its best efforts to take such action as is
necessary to qualify for sale, in those states in which the Warrants were
initially offered by the Company, the Common Stock issuable upon exercise of
the
Warrants. In either case, the Company will use its best efforts to cause the
same to become effective and to maintain the effectiveness of such registration
statement until the expiration of the Warrants in accordance with the provisions
of this Agreement. The provisions of this Section 7.4 may not be modified,
amended or deleted without the prior written consent of CRT.
7.5.
Limitation
on Monetary Damages.
In no
event shall the registered holder of a Warrant be entitled to receive monetary
damages for failure to settle any Warrant exercise if the Common Stock issuable
upon exercise of the Warrants has not been registered with the Securities and
Exchange Commission pursuant to an effective registration statement or if a
current prospectus is not available for delivery by the Warrant Agent, provided
the Company has fulfilled its obligations under Section 7.4 to use its best
efforts to effect such registration and ensure a current prospectus is
available.
8.
Concerning
the Warrant Agent and Other Matters.
8.1. Payment
of Taxes.
The
Company will from time to time promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2. Resignation,
Consolidation, or Merger of Warrant Agent.
8.2.1.
Appointment
of Successor Warrant Agent.
The
Warrant Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days’ notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation
or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall,
with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to the Supreme Court of the State of New York for
the
County of New York for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation organized and existing under the laws
of
the State of New York, in good standing and having its principal office in
the
City and State of New York, and authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by federal or state
authority. After appointment, any successor Warrant Agent shall be vested with
all the authority, powers, rights, immunities, duties, and obligations of its
predecessor Warrant Agent with like effect as if originally named as Warrant
Agent hereunder, without any further act or deed; but if for any reason it
becomes necessary or appropriate, the predecessor Warrant Agent shall execute
and deliver, at the expense of the Company, an instrument transferring to such
successor Warrant Agent all the authority, powers, and rights of such
predecessor Warrant Agent hereunder; and upon request of any successor Warrant
Agent the Company shall make, execute, acknowledge, and deliver any and all
instruments in writing for more fully and effectually vesting in and confirming
to such successor Warrant Agent all such authority, powers, rights, immunities,
duties, and obligations.
8.2.2.
Notice
of Successor Warrant Agent.
In the
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for
the
Common Stock not later than the effective date of any such
appointment.
8.2.3.
Merger
or Consolidation of Warrant Agent.
Any
corporation into which the Warrant Agent may be merged or with which it may
be
consolidated or any corporation resulting from any merger or consolidation
to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
8.3. Fees
and Expenses of Warrant Agent.
8.3.1.
Remuneration.
The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand
for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2. Further
Assurances.
The
Company agrees to perform, execute, acknowledge, and deliver or cause to be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this
Agreement.
8.4. Liability
of Warrant Agent.
8.4.1.
Reliance
on Company Statement.
Whenever in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter
be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the Chief Executive Officer or Chairman
of
the Board of the Company and delivered to the Warrant Agent. The Warrant Agent
may rely upon such statement for any action taken or suffered in good faith
by
it pursuant to the provisions of this Agreement.
8.4.2.
Indemnity.
The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Agreement except as a result of the Warrant Agent’s
negligence, willful misconduct, or bad faith.
8.4.3.
Exclusions.
The
Warrant Agent shall have no responsibility with respect to the validity of
this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by
the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under
the
provisions of Section 4 hereof or responsible for the manner, method, or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to
make
any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant
or
as to whether any shares of Common Stock will when issued be valid and fully
paid and nonassessable.
8.5. Acceptance
of Agency.
The
Warrant Agent hereby accepts the agency established by this Agreement and agrees
to perform the same upon the terms and conditions herein set forth and among
other things, shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the Company, all moneys
received by the Warrant Agent for the purchase of shares of Common Stock through
the exercise of Warrants.
9.
Warrant
Solicitation and Warrant Solicitation Fees.
9.1. The
Company has engaged CRT, on a non-exclusive basis, as its agent for the
solicitation of the exercise of the Warrants. The Company, at its cost, will
(i)
assist CRT with respect to such solicitation, if requested by CRT, and (ii)
provide CRT, and direct the Company’s transfer agent and the Warrant Agent to
deliver to CRT, lists of the record and, to the extent known, beneficial owners
of the Company’s Warrants. The Company hereby instructs the Warrant Agent to
cooperate with CRT in every respect in connection with CRT’s solicitation
activities, including, but not limited to, providing to CRT, at the Company’s
cost, a list of record and beneficial holders of the Warrants and circulating
a
prospectus or offering circular disclosing the compensation arrangements
referenced in Section 9.2 below to holders of the Warrants at the time of
exercise of the Warrants. In addition to the conditions set forth in Section
9.2, the Company shall be obligated to pay the warrant solicitation fee only
if
CRT has provided bona fide services to the Company, at the Company’s request, in
connection with the exercise of the Warrants and only to the extent that an
investor who exercises his Warrants specifically designates, in writing, that
CRT solicited his exercise. In addition to soliciting, either orally or in
writing, the exercise of Warrants by a Warrant holder, such services may also
include disseminating information, either orally or in writing, to Warrant
holders about the Company or the market for the Company’s securities, or
assisting in the processing of the exercise of Warrants.
9.2. In
each
instance in which a Warrant is exercised, the Warrant Agent shall promptly
give
written notice of such exercise to the Company and CRT (“Warrant Agent’s
Exercise Notice”). If, upon the exercise of any Warrant more than one year from
the effective date of the Registration Statement, (i) the market price of the
Company’s Common Stock is greater than the Warrant Price, (ii) disclosure of
compensation arrangements between the Company and CRT with respect to the
solicitation of the exercise of the Warrants was made both at the time of the
Public Offering and at the time of exercise (by delivery of the Prospectus
or as
otherwise required by applicable law, rule or regulation), (iii) the holder
of
the Warrant confirms in writing that the exercise of the Warrant was solicited
by CRT, (iv) the Warrant was not held in a discretionary account, (v) the
solicitation of the exercise of the Warrant was not in violation of Regulation
M
(as such rule or any successor rule may be in effect as of such time of
exercise) promulgated under the Securities Exchange Act of 1934, as amended,
and
(vi) CRT has received a request from the Company to solicit the exercise of
the
Warrants, then the Warrant Agent, simultaneously with the distribution of the
Common Stock underlying the Warrants so exercised in accordance with the
instructions from the Company following receipt of the proceeds to the Company
received upon exercise of such Warrant(s), shall, on behalf of the Company,
pay
a fee of 2% of the Warrant Price to Underwriter, provided that CRT delivers
to
the Warrant Agent within ten (10) business days from the date on which CRT
has
received the Warrant Agent’s Exercise Notice, a certificate that the conditions
set forth in the preceding clauses (iii), (iv) and (v) have been satisfied.
Notwithstanding the foregoing, no fee will be paid to CRT with respect to the
exercise by it or its affiliates or the Company’s officers or directors of
Warrants purchased by it or them and still held by them for its or their own
account. CRT and the Company may at any time during business hours, examine
the
records of the Warrant Agent, including its ledger of original Warrant
certificates returned to the Warrant Agent upon exercise of
Warrants.
10.
Miscellaneous
Provisions.
10.1.
Successors.
All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns.
10.2.
Notices.
Any
notice, statement or demand authorized by this Warrant Agreement to be given
or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as
follows:
14
A
Achimeir Street
Ramat
Gan
52587 Israel
Attn:
Xxxxx Bar-Niv
Any
notice, statement or demand authorized by this Agreement to be given or made
by
the holder of any Warrant or by the Company to or on the Warrant Agent shall
be
sufficiently given when so delivered if by hand or overnight delivery or if
sent
by certified mail or private courier service within five days after deposit
of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx Xxxxxx, Chairman and President
with
a
copy in each case to:
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxxx Xxxx, Esq.
and
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
and
CRT
Capital Group LLC
000
Xxxxxx Xxxxx
Xxxxxxxx,
XX 00000
Attn:
Xxxx Xxxxxxxx
10.3.
Applicable
Law.
The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenience
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
10.2 hereof. Such mailing shall be deemed personal service and shall be legal
and binding upon the Company in any action, proceeding or claim.
10.4.
Persons
Having Rights under this Agreement.
Nothing
in this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the parties hereto and the registered
holders of the Warrants and, for the purposes of Sections 6.1, 6.4, 7.4 and
10.2 hereof, CRT, any right, remedy, or claim under or by reason of this Warrant
Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. CRT shall be deemed to be a third-party beneficiary of this Agreement
with respect to Sections 6.1, 6.4, 7.4 and 10.2 hereof. All covenants,
conditions, stipulations, promises, and agreements contained in this Warrant
Agreement shall be for the sole and exclusive benefit of the parties hereto
(and
CRT with respect to the Sections 6.1, 6.4,
7.4
and 10.2 hereof) and their successors and assigns and of the registered holders
of the Warrants.
10.5.
Examination
of the Warrant Agreement.
A copy
of this Agreement shall be available at all reasonable times at the office
of
the Warrant Agent in the Borough of Manhattan, City and State of New York,
for
inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his Warrant for inspection by it.
10.6.
Counterparts.
This
Agreement may be executed in any number of original or facsimile counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
10.7.
Effect
of Headings.
The
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.
10.8.
Amendments.
10.8.1
This
Agreement and any Warrant certificate may be amended by the parties hereto
by
executing a supplemental warrant agreement (a “Supplemental Agreement”), without
the consent of any of the Warrant holders, for the purpose of (i) curing
any ambiguity, or curing, correcting or supplementing any defective provision
contained herein, or making any other provisions with respect to matters or
questions arising under this agreement that is not inconsistent with the
provisions of this agreement or the Warrant certificates, (ii) evidencing
the succession of another corporation to the Company and the assumption by
any
such successor of the covenants of the Company contained in this agreement
and
the Warrants, (iii) evidencing and providing for the acceptance of
appointment by a successor Warrant Agent with respect to the Warrants,
(iv) adding to the covenants of the Company for the benefit of the Holders
or surrendering any right or power conferred upon the Company under this
Agreement, or (viii) amending this agreement and the Warrants in any manner
that the Company may deem to be necessary or desirable and that will not
adversely affect the interests of the Warrant holders in any material
respect.
10.8.2
The
Company and the Warrant Agent may amend this agreement and the Warrants by
executing a Supplemental Agreement with the consent of the Holders of not fewer
than a majority of the unexercised Warrants affected by such amendment, for
the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
the Holders under this agreement; provided,
however,
that,
without the consent of each of the Warrant holders affected thereby, no such
amendment may be made that (i) changes the Warrants so as to reduce the
number of Shares purchasable upon exercise of the Warrants or so as to increase
the Exercise Price (other than as provided by Section 4),
(ii) shortens the period of time during which the Warrants may be
exercised, (iii) otherwise adversely affects the exercise rights of the
Holders in any material respect, or (iv) reduces the number of unexercised
Warrants the holders of which must consent for amendment of this agreement
or
the Warrants.
10.8.3
Notwithstanding
anything contained herein to the contrary, Section 9 may be amended only by
the
parties hereto with the consent of CRT. The parties hereto acknowledge that
CRT
shall be an intended third-party beneficiary of this Section 10.8.3 and Section
9.
11. Severability.
This
Warrant Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of
this
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
(Remainder
of page intentionally left blank. Signature page immediately
follows.)
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
ADVANCED TECHNOLOGY ACQUISITION CORP. | |||
By: | |||
Name:
Xxxxx Bar-Niv
|
|||
Title:
Chairman
|
CONTINENTAL
STOCK TRANSFER
&
TRUST COMPANY
|
|||
By: | |||
Name:
|
|||
Title:
|
[Warrant
Agreement]