STOCK ESCROW AGREEMENT
STOCK
ESCROW AGREEMENT, dated as of June 22, 2007 (“Agreement”), by and among ADVANCED
TECHNOLOGY ACQUISITION CORP., a Delaware corporation (“Company”), X.X.X.X.
HOLDINGS LTD., FSGL HOLDINGS LTD, OLEV HOLDINGS LTD, IDO BAHBUT, XXXXXXX XXXXXX,
XXXXXX XXXXX, SHREM, FUDIM, XXXXXX-TECHNOLOGIES LTD., SHREM, FUDIM, XXXXXX
&
CO. LTD. and XXXXX XXXXXXX (collectively “Initial Stockholders”), CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, a New York corporation (“Escrow Agent”) and
CRT CAPITAL GROUP LLC (“CRT”) (solely with respect to the Escrow Period, as
defined in paragraph 3).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated June 18, 2007
(“Underwriting Agreement”), with CRT Capital Group LLC (“CRT”) acting as
representative of the several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase
21,562,000 units (including 2,812,500 units issuable pursuant to the
underwriters’ over-allotment option) (“Units”) of the Company. Each Unit
consists of one share of the Company’s common stock, par value $.0001 per share
(“Common Stock”), and one Warrant, each Warrant to purchase one share of Common
Stock, all as more fully described in the Company’s final Prospectus, dated June
18, 2007 (“Prospectus”) comprising part of the Company’s Registration Statement
on Form S-1 (File No. 333-137863) under the Securities Act of 1933, as
amended (“Registration Statement”), declared effective on June 18, 2006
(“Effective Date”).
WHEREAS,
the Initial Stockholders have agreed as a condition of the sale of the Units
to
deposit their shares of Common Stock of the Company, as set forth opposite
their
respective names in Exhibit A attached hereto (collectively “Escrow Shares”), in
escrow as hereinafter provided.
WHEREAS,
the Company and the Initial Stockholders desire that the Escrow Agent accept
the
Escrow Shares, in escrow, to be held and disbursed as hereinafter
provided.
Any
terms
not defined herein shall have the definition ascribed to them in the
Registration Statement.
IT
IS
AGREED:
1.
Appointment
of Escrow Agent
. The
Company and the Initial Stockholders hereby appoint the Escrow Agent to act
in
accordance with and subject to the terms of this Agreement and the Escrow Agent
hereby accepts such appointment and agrees to act in accordance with and subject
to such terms.
2.
Deposit
of Escrow Shares
. On or
before the Effective Date, each of the Initial Stockholders shall deliver to
the
Escrow Agent certificates representing his respective Escrow Shares, to be
held
and disbursed subject to the terms and conditions of this Agreement. Each
Initial Stockholder acknowledges that the certificate representing his Escrow
Shares is legended to reflect the deposit of such Escrow Shares under this
Agreement.
3.
Disbursement
of the Escrow Shares
. The
Escrow Agent shall hold the Escrow Shares until the date which is six months
after the consummation of a Business Combination (“Escrow Period”), on which
date it shall, upon written instructions from each Initial Stockholder, disburse
each of the Initial Stockholder’s Escrow Shares (and any applicable stock power)
to such Initial Stockholder; provided, however, that if the Escrow Agent is
notified by the Company pursuant to Section 6.7 hereof that the Company is
being
liquidated at any time during the Escrow Period, then the Escrow Agent shall
promptly destroy the certificates representing the Escrow Shares; provided
further, however, that if, after the Company consummates a Business Combination
(as such term is defined in the Registration Statement), it (or the surviving
entity) subsequently consummates a liquidation, merger, stock exchange or other
similar transaction which results in all of the stockholders of such entity
having the right to exchange their shares of Common Stock for cash, securities
or other property, then the Escrow Agent will, upon receipt of a certificate,
executed by the Chief Executive Officer or Chief Financial Officer of the
Company, in form reasonably acceptable to the Escrow Agent, that such
transaction is then being consummated, release the Escrow Shares to the Initial
Stockholders upon consummation of the transaction so that they can similarly
participate. The Escrow Agent shall have no further duties hereunder after
the
disbursement or destruction of the Escrow Shares in accordance with this Section
3. The parties hereby agree that the period during which the shares are to
be
held by the Escrow Agent reflected in the Letter Agreements between the Company
and the Initial Stockholders as filed with the Securities and Exchange
Commission shall be reduced from one year to the Escrow Period.
4.
Rights
of Initial Stockholders in Escrow Shares
.
4.1
Voting
Rights as a Stockholder
.
Subject to the terms of the Insider Letter described in Section 4.4 hereof
and
except as herein provided, the Initial Stockholders shall retain all of their
rights as stockholders of the Company during the Escrow Period, including,
without limitation, the right to vote such shares.
4.2
Dividends
and Other Distributions in Respect of the Escrow Shares
. During
the Escrow Period, all dividends payable in cash with respect to the Escrow
Shares shall be paid to the Initial Stockholders, but all dividends payable
in
stock or other non-cash property (“Non-Cash Dividends”) shall be delivered to
the Escrow Agent to hold in accordance with the terms hereof. As used herein,
the term “Escrow Shares” shall be deemed to include the Non-Cash Dividends
distributed thereon, if any.
4.3
Restrictions
on Transfer
. During
the Escrow Period, no sale, transfer or other disposition may be made of any
or
all of the Escrow Shares except (i) to a spouse or child of the beneficial
owner
of the shares owned by the Initial Stockholder or to a trust established for
their benefit, (ii) by virtue of the laws of descent and distribution upon
death
of any Initial Stockholder, or (iii) pursuant to a qualified domestic relations
order; provided
,
however
, that
such permissive transfers may be implemented only upon the respective
transferee’s written agreement to be bound by the terms and conditions of this
Agreement and of the Insider Letter (as defined below) signed by the Initial
Stockholder transferring the Escrow Shares.
4.4
Insider
Letters
. Each
of the Initial Stockholders has executed a letter agreement, dated as indicated
on Exhibit A hereto, and which is filed as an exhibit to the Registration
Statement (“Insider Letter”), respecting the rights and obligations of such
Initial Stockholder in certain events, including but not limited to the
liquidation of the Company.
5.
Concerning
the Escrow Agent
.
5.1
Good
Faith Reliance
. The
Escrow Agent shall not be liable for any action taken or omitted by it in good
faith and in the exercise of its own best judgment, and may rely conclusively
and shall be protected in acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report or other paper or document (not only as to its
due
execution and the validity and effectiveness of its provisions, but also as
to
the truth and acceptability of any information therein contained) which is
believed by the Escrow Agent to be genuine and to be signed or presented by
the
proper person or persons. The Escrow Agent shall not be bound by any notice
or
demand, or any waiver, modification, termination or rescission of this Agreement
unless evidenced by a writing delivered to the Escrow Agent signed by the proper
party or parties and, if the duties or rights of the Escrow Agent are affected,
unless it shall have given its prior written consent thereto.
5.2
Indemnification
. The
Escrow Agent shall be indemnified and held harmless by the Company from and
against any expenses, including counsel fees and disbursements, or loss suffered
by the Escrow Agent in connection with any action, suit or other proceeding
involving any claim which in any way, directly or indirectly, arises out of
or
relates to this Agreement, the services of the Escrow Agent hereunder, or the
Escrow Shares held by it hereunder, other than expenses or losses arising from
the gross negligence or willful misconduct of the Escrow Agent. Promptly after
the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall notify
the other parties hereto in writing. In the event of the receipt of such notice,
the Escrow Agent, in its sole discretion, may commence an action in the nature
of interpleader in an appropriate court to determine ownership or disposition
of
the Escrow Shares or it may deposit the Escrow Shares with the clerk of any
appropriate court or it may retain the Escrow Shares pending receipt of a final,
non-appealable order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrow Shares are
to
be disbursed and delivered. The provisions of this Section 5.2 shall survive
in
the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5
or
5.6 below.
2
5.3
Compensation
. The
Escrow Agent shall be entitled to reasonable compensation from the Company
for
all services rendered by it hereunder. The Escrow Agent shall also be entitled
to reimbursement from the Company for all reasonable expenses paid or incurred
by it in the administration of its duties hereunder including, but not limited
to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or
other governmental charges.
5.4
Further
Assurances
. From
time to time on and after the date hereof, the Company and the Initial
Stockholders shall deliver or cause to be delivered to the Escrow Agent such
further documents and instruments and shall do or cause to be done such further
acts as the Escrow Agent shall reasonably request to carry out more effectively
the provisions and purposes of this Agreement, to evidence compliance herewith
or to assure itself that it is protected in acting hereunder.
5.5
Resignation
. The
Escrow Agent may resign at any time and be discharged from its duties as escrow
agent hereunder by its giving the other parties hereto written notice and such
resignation shall become effective as hereinafter provided. Such resignation
shall become effective at such time that the Escrow Agent shall turn over to
a
successor escrow agent appointed by the Company, the Escrow Shares held
hereunder. If no new escrow agent is so appointed within the 60 day period
following the giving of such notice of resignation, the Escrow Agent may deposit
the Escrow Shares with any court it reasonably deems appropriate.
5.6
Discharge
of Escrow Agent
. The
Escrow Agent shall resign and be discharged from its duties as escrow agent
hereunder if so requested in writing at any time by the other parties hereto,
jointly, provided, however, that such resignation shall become effective only
upon acceptance of appointment by a successor escrow agent as provided in
Section 5.5.
5.7
Liability
.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not
be
relieved from liability hereunder for its own gross negligence or its own
willful misconduct.
6.
Miscellaneous
.
6.1
Governing
Law
. This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with 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.
6.2
Third
Party Beneficiaries
. Each
of the Initial Stockholders hereby acknowledges that the Underwriters are third
party beneficiaries of this Agreement and this Agreement may not be modified
or
changed without the prior written consent of CRT.
6.3
Entire
Agreement
. This
Agreement contains the entire agreement of the parties hereto with respect
to
the subject matter hereof and, except as expressly provided herein, may not
be
changed or modified except by an instrument in writing signed by the party
to
the charged.
6.4
Headings
. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation thereof.
6.5
Binding
Effect
. This
Agreement shall be binding upon and inure to the benefit of the respective
parties hereto and their legal representatives, successors and
assigns.
6.6
Notices
. Any
notice or other communication required or which may be given hereunder shall
be
in writing and either be delivered personally or be mailed, certified or
registered mail, or by private national courier service, return receipt
requested, postage prepaid, and shall be deemed given when so delivered
personally or, if mailed, two days after the date of mailing, as follows:
3
If
to the
Company, to:
14
A
Achimeir Street
Ramat
Gan
52587 Israel
Attn:
Xxxxx Bar-Niv
If
to a
Stockholder, to:
14
A
Achimeir Street
Ramat
Gan
52587 Israel
Attn:
Secretary
and
if to
the Escrow Agent, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx Xxxxxx, Chairman and President
A
copy of
any notice sent hereunder shall be sent to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attn:
Xxxxx Xxx, Esq.
and:
CRT
Capital Group LLC
000
Xxxxxx Xxxxx
Xxxxxxxx,
XX 00000
Attn:
Xxxx Xxxxxxxx, Managing Director
and:
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxxx Xxxx, Esq.
The
parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice to any such change in
the
manner provided herein for giving notice.
6.7
Liquidation
of the Company
. The
Company shall give the Escrow Agent written notification of the liquidation
and
dissolution of the Company in the event that the Company fails to consummate
a
Business Combination within the time period(s) specified in the
Prospectus.
(Remainder
of page intentionally left blank. Signature page immediately
follows.)
4
WITNESS
the execution of this Agreement as of the date first above written.
| ADVANCED TECHNOLOGY ACQUISITION CORP. | ||
| |
|
|
| By: | /s/ Ido Bahbut | |
|
Name:
Ido
Bahbut
Title:
Chief
Financial Officer, Secretary and
Treasurer
|
||
| X.X.X.X. HOLDINGS LTD. | ||
| |
|
|
| By: | /s/ Xxxxx Bar-Niv | |
|
Name:
Xxxxx
Bar-Niv
Title:
Initial
Stockholder
|
||
| FSGL HOLDINGS LTD | ||
| |
|
|
| By: | /s/ Xxxxxxxx Xxxxxxxx | |
|
Name:
Xxxxxxxx
Xxxxxxxx
Title:
Initial
Stockholder
|
||
| OLEV HOLDINGS LTD | ||
| |
|
|
| By: | /s/ Xxxxx Xxx | |
|
Name:
Xxxxx
Xxx
Title:
Initial
Stockholder
|
||
| By: | /s/ Ido Bahbut | |
|
Name:
Ido
Bahbut
Title:
Initial
Stockholder
|
||
| By: | /s/ Xxxxxxx Xxxxxx | |
|
Name:
Xxxxxxx
Xxxxxx
Title:
Initial
Stockholder
|
||
| By: | /s/ Xxxxxx Xxxxx | |
|
Name:
Xxxxxx
Xxxxx
Title:
Initial
Stockholder
|
||
| XXXXX XXXXXXX LTD | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxx | |
|
Name:
Xxxxx
Xxxxxxx
Title:
Initial
Stockholder
|
||
| SHREM, FUDIM, XXXXXX-TECHNOLOGIES LTD. | ||
| |
|
|
| By: |
/s/
X. Xxxxx; X. Xxxxxxx
|
|
|
Name:
X.
Xxxxx; X. Xxxxxxx
Title:
Initial
Stockholder
|
||
| SHREM, FUDIM, XXXXXX & CO. LTD. | ||
| |
|
|
| By: |
/s/
X. Xxxxx; X. Xxxxxxx
|
|
|
Name:
X.
Xxxxx; X. Xxxxxxx
Title:
Initial
Stockholder
|
||
| ESCROW AGENT: | ||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Name:
Xxxxxxx
X. Xxxxxx
Title:
Vice
President
|
||
AGREED
TO
SOLELY WITH RESPECT
TO
THE
ESCROW PERIOD, AS DEFINED
IN
PARAGRAPH 3:
CRT
CAPITAL GROUP LLC
By:
/s/
Xxxx
Xxxx
Name: Xxxx
Xxxx
Title:
Senior
Vice President
EXHIBIT
A
|
Name
and Address of
Initial
Stockholder
|
Number
of
Shares
|
Stock
Certificate
Number
|
Date
of
Insider
Letter
|
|
X.X.X.X.
Holdings Ltd.
|
1,747,500
|
1
|
9/29/2006
|
|
FSGL
Holdings Ltd
|
1,747,500
|
2
|
9/29/2006
|
|
OLEV
Holdings Ltd
|
1,747,500
|
3
|
9/29/2006
|
|
Xxxxxx
Xxxxx
|
82,500
|
5
|
9/29/2006
|
|
Xxxxxxx
Xxxxxx
|
20,000
|
6
|
9/29/2006
|
|
Shrem,
Fudim, Xxxxxx - Technologies Ltd.
|
583,333
|
7
|
9/29/2006
|
|
Shrem,
Fudim, Xxxxxx & Co. Ltd.
|
291,667
|
8
|
9/29/2006
|
|
Xxxxx
Xxxxxxx Ltd
|
15,000
|
9
|
[9/29/2006]
|
|
Ido
Bahbud
|
15,000
|
10
|
[9/29/2006]
|
