THE REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT SELL,...
THE
REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF, AGREES
THAT
IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN
PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL
NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION FOR
A
PERIOD OF ONE YEAR FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER
THAN (I) EARLYBIRDCAPITAL, INC. (“EBC”) OR AN UNDERWRITER OR A SELECTED DEALER
IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF
EBC
OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS
PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF THE CONSUMMATION BY
ISRAEL TECHNOLOGY ACQUISITION CORP. (“COMPANY”) OF A MERGER, CAPITAL STOCK
EXCHANGE, ASSET ACQUISITION OR OTHER SIMILAR BUSINESS COMBINATION (“BUSINESS
COMBINATION”) (AS DESCRIBED MORE FULLY IN THE COMPANY’S REGISTRATION STATEMENT
(DEFINED HEREIN)) OR JULY 12, 2006. VOID AFTER 5:00 P.M. EASTERN TIME, JULY
11,
2010.
UNIT
PURCHASE OPTION
For
the Purchase of
__________
Units
of
1. Purchase
Option.
THIS
CERTIFIES THAT, in consideration of $_________ duly paid by or on behalf of
________ (“Holder”), as registered owner of this Purchase Option, to Israel
Technology Acquisition Corp. (“Company”), Holder is entitled, at any time or
from time to time upon the later of the consummation of a Business Combination
or July 12, 2006 (“Commencement Date”), and at or before 5:00 p.m., Eastern
Time, July 11, 2010 (“Expiration Date”), but not thereafter, to subscribe for,
purchase and receive, in whole or in part, up to ___________ (_________) units
(“Units”) of the Company, each Unit consisting of one share of common stock of
the Company, par value $.0001 per share (“Common Stock”), and two warrants
(“Warrant(s)”) expiring four years from the effective date (“Effective Date”) of
the registration statement (“Registra-tion Statement”) pursuant to which Units
are offered for sale to the public (“Offering”). Each Warrant is the same as the
warrants included in the Units being registered for sale to the public by way
of
the Registration Statement (“Public War-rants”) except that the Warrants have an
exercise price of $6.65 per share. If the Expiration Date is a day on which
banking institutions are authorized by law to close, then this Purchase Option
may be exercised on the next succeeding day which is not such a day in
accordance with the terms herein. During the period ending on the Expiration
Date, the Company agrees not to take any action that would terminate the
Purchase Option. This Purchase Option is initially exercisable at $7.50 per
Unit
so purchased; provided, however, that upon the occurrence of any of the events
specified in Section 6 hereof, the rights granted by this Purchase Option,
including the exercise price per Unit and the number of Units (and shares of
Common Stock and Warrants) to be received upon such exercise, shall be adjusted
as therein specified. The term “Exercise Price” shall
mean
the initial exercise price or the adjusted exercise price, depending on the
context.
1
2. Exercise.
2.1 Exercise
Form.
In
order to exercise this Purchase Option, the exercise form attached hereto must
be duly executed and completed and delivered to the Company, together with
this
Purchase Option and payment of the Exercise Price for the Units being purchased
payable in cash or by certified check or official bank check. If the
subscription rights represented hereby shall not be exercised at or before
5:00
p.m., Eastern time, on the Expiration Date this Purchase Option shall become
and
be void without further force or effect, and all rights represented hereby
shall
cease and expire.
2.2 Legend.
Each
certificate for the securities purchased under this Purchase Option shall bear
a
legend as follows unless such securities have been registered under the
Securities Act of 1933, as amended (“Act”):
“The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended (“Act”) or applicable state law. The
securities may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act, or pursuant
to an
exemption from registration under the Act and applicable state
law.”
2.3 Cashless
Exercise.
2.3.1 Determination
of Amount.
In
lieu
of the payment of the Exercise Price multiplied by the number of Units for
which
this Purchase Option is exercisable (and in lieu of being entitled to receive
Common Stock and Warrants) in the manner required by Section 2.1, the
Holder shall have the right (but not the obligation) to convert any exercisable
but unexercised portion of this Purchase Option into Units (“Conversion Right”)
as follows: upon exercise of the Conversion Right, the Company shall deliver
to
the Holder (without payment by the Holder of any of the Exercise Price in cash)
that number of shares of Common Stock and Warrants comprising that number of
Units equal to the quotient obtained by dividing (x) the “Value” (as defined
below) of the portion of the Purchase Option being converted by (y) the Current
Market Value (as defined below). The “Value” of the portion of the Purchase
Option being converted shall equal the remainder derived from subtracting (a)
(i) the Exercise Price multiplied by (ii) the number of Units underlying the
portion of this Purchase Option being converted from (b) the Current Market
Value of a Unit multiplied by the number of Units underlying the portion of
the
Purchase Option being converted. As used herein, the term “Current Market Value”
per Unit at any date means the remainder derived from subtracting (x) the
exercise price of the Warrants multiplied by the number of shares of Common
Stock issuable upon exercise of the Warrants underlying one Unit from (y) the
Current Market Price of the Common Stock multiplied by the number of shares
of
Common Stock underlying the Warrants and the Common Stock issuable upon exercise
of one Unit. The “Current Market Price” of a share of Common Stock shall mean
(i) if the Common Stock is listed on a national securities exchange or quoted
on
the Nasdaq National Market, Nasdaq SmallCap Market or NASD OTC Bulletin Board
(or successor such as the Bulletin Board Exchange), the last sale price of
the
Common Stock in the principal trading market for the Common Stock as reported
by
the exchange, Nasdaq or the NASD, as the case may be; (ii) if the Common Stock
is not listed on a national securities exchange or quoted on the Nasdaq National
Market, Nasdaq SmallCap Market or the NASD OTC Bulletin Board (or successor
such
as the Bulletin Board Exchange), but is traded in the residual over-the-counter
market, the closing bid price for the Common Stock on the last trading day
preceding the date in question for which such quotations are reported by the
Pink Sheets, LLC or similar publisher of such quotations; and (iii) if the
fair
market value of the Common Stock cannot be determined pursuant to clause (i)
or
(ii) above, such price as the Board of Directors of the Company shall determine,
in good faith.
2
2.3.2 Mechanics
of Cashless Exercise.
The
Cashless Exercise Right may be exercised by the Holder on any business day
on or
after the Commencement Date and not later than the Expiration Date by delivering
the Purchase Option with the duly executed exercise form attached hereto with
the cashless exercise section completed to the Company, exercising the Cashless
Exercise Right and specifying the total number of Units the Holder will purchase
pursuant to such Cashless Exercise Right.
2.4 No
Obligation to Net Cash Settle.
Notwithstanding anything to the contrary contained in this Purchase Option,
if
the
Company is unable to deliver any securities pursuant to the exercise of this
Purchase Option, the Purchase Option and underlying securities may expire
unexercised or unredeemed if there is no effective registration statement
covering the securities underlying the Purchase Option and the Company will
have
no obligation to pay such registered holder any cash or otherwise “net cash
settle” the Purchase Option or the Warrants underlying the Purchase
Option.
3. Transfer.
3.1 General
Restrictions.
The
registered Holder of this Purchase Option, by its acceptance hereof, agrees
that
it will not sell, transfer, assign, pledge or hypothecate this Purchase Option
for a period of one year following the Effective Date to anyone other than
(i)
EBC or an underwriter or a selected dealer in connection with the Offering,
or
(ii) a bona fide officer or partner of EBC or of any such underwriter or
selected dealer. On and after the second anniversary of the Effective Date,
transfers to others may be made subject to compliance with or exemptions from
applicable securities laws. In order to make any permitted assignment, the
Holder must deliver to the Company the assignment form attached hereto duly
executed and completed, together with the Purchase Option and payment of all
transfer taxes, if any, payable in connection therewith. The Company shall
within five business days transfer this Purchase Option on the books of the
Company and shall execute and deliver a new Purchase Option or Purchase Options
of like tenor to the appropriate assignee(s) expressly evidencing the right
to
purchase the aggregate number of Units purchasable hereunder or such portion
of
such number as shall be contemplated by any such assignment.
3.2 Restrictions
Imposed by the Act.
The
securities evidenced by this Purchase Option shall not be transferred unless
and
until (i) the Company has received the opinion of counsel for the Holder that
the securities may be transferred pursuant to an exemption from registration
under the Act and applicable state securities laws, the availability of which
is
established to the reasonable satisfaction of the Company (the Company hereby
agreeing that the opinion of Xxxxxxxx Xxxxxx shall be deemed satisfactory
evidence of the availability of an exemption), or (ii) a registration statement
or a post-effective amendment to the Registration Statement relating to such
securities has been filed by the Company and declared effective by the
Securities and Exchange Commission and compliance with applicable state
securities law has been established.
3
4. New
Purchase Options to be Issued.
4.1 Partial
Exercise or Transfer.
Subject
to the restric-tions in Section 3 hereof, this Purchase Option may be exercised
or assigned in whole or in part. In the event of the exercise or assignment
hereof in part only, upon surrender of this Purchase Option for cancellation,
together with the duly executed exercise or assignment form and funds sufficient
to pay any Exercise Price and/or transfer tax, the Company shall cause to be
delivered to the Holder without charge a new Purchase Option of like tenor
to
this Purchase Option in the name of the Holder evidencing the right of the
Holder to purchase the number of Units purchasable hereunder as to which this
Purchase Option has not been exercised or assigned.
4.2 Lost
Certificate.
Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Purchase Option and of reasonably satisfactory
indemnification or the posting of a bond, the Company shall execute and deliver
a new Purchase Option of like tenor and date. Any such new Purchase Option
executed and delivered as a result of such loss, theft, mutilation or
destruction shall constitute a substitute contractual obligation on the part
of
the Company.
5. Registration
Rights.
5.1 Demand
Registration.
5.1.1 Grant
of Right.
The
Company, upon written demand (“Initial Demand Notice”) of the Holder(s) of at
least 51% of the Purchase Options and/or the underlying Units and/or the
underlying securities (“Majority Holders”), agrees to register on one occasion,
all or any portion of the Purchase Options requested by the Majority Holders
in
the Initial Demand Notice and all of the securities underlying such Purchase
Options, including the Units, Common Stock, the Warrants and the Common Stock
underlying the Warrants (collectively, the “Registrable Securities”). On such
occasion, the Company will file a registration statement or a post-effective
amendment to the Registration Statement covering the Registrable Securities
within sixty days after receipt of the Initial Demand Notice and use its best
efforts to have such registration statement or post-effective amendment declared
effective as soon as possible thereafter. The demand for registration may be
made at any time during a period of five years beginning on the Effective Date.
The Company covenants and agrees to give written notice of its receipt of any
Initial Demand Notice by any Holder(s) to all other registered Holders of the
Purchase Options and/or the Registrable Securi-ties within ten days from the
date of the receipt of any such Initial Demand Notice.
5.1.2 Terms.
The
Company shall bear all fees and expenses attendant to registering the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities, but the Holders shall pay any and all underwriting commissions.
The
Company agrees to use its reasonable best efforts to qualify or register the
Registrable Securities in such States as are reasonably requested by the
Majority Holder(s); provided, however, that in no event shall the Company be
required to register the Registrable Securities in a State in which such
registration would cause (i) the Company to be obligated to qualify to do
business in such State, or would subject the Company to taxation as a foreign
corporation doing business in such jurisdiction or (ii) the principal
stockholders of the Company to be obligated to escrow their shares of capital
stock of the Company. The Company shall cause any registration state-ment or
post-effective amendment filed pursuant to the demand rights granted under
Section 5.1.1 to remain effective for a period of nine consecutive months from
the effective date of such registration statement or post-effective
amendment.
4
5.2 “Piggy-Back”
Registration.
5.2.1 Grant
of Right.
In
addition to the demand right of registration, the Holders of the Purchase
Options shall have the right for a period of seven years commencing on the
Effective Date, to include the Registrable Securities as part of any other
registration of securities filed by the Company (other than in connection with
a
transaction contemplated by Rule 145(a) promulgated under the Act or pursuant
to
Form S-8); provided, however, that if, in the written opinion of the Company’s
managing underwriter or underwriters, if any, for such offering, the inclusion
of the Registrable Securities, when added to the securities being registered
by
the Company or the selling stockholder(s), will exceed the maximum amount of
the
Company’s securities which can be marketed (i) at a price reasonably
related to their then current market value, and (ii) without materially and
adversely affecting the entire offering, then the Company will still be required
to include the Registrable Securities, but may require the Holders to agree,
in
writing, to delay the sale of all or any portion of the Registrable Securities
for a period of 90 days from the effective date of the offering, provided,
further, that if the sale of any Registrable Securities is so delayed, then
the
number of securities to be sold by all stockholders in such public offering
during such 90 day period shall be apportioned pro rata
among
all such selling stockholders, including all holders of the Registrable
Securities, according to the total amount of securities of the Company owned
by
said selling stockholders, including all holders of the Registrable
Securities.
5.2.2 Terms.
The
Company shall bear all fees and expenses attendant to registering the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities but the Holders shall pay any and all underwriting commissions
related to the Registrable Securities. In the event of such a proposed
regis-tration, the Company shall furnish the then Holders of outstand-ing
Registrable Securities with not less than fifteen days written notice prior
to
the proposed date of filing of such registration state-ment. Such notice to
the
Holders shall continue to be given for each applicable registration statement
filed (during the period in which the Purchase Option is exercisable) by the
Company until such time as all of the Registrable Securities have been
registered and sold. The holders of the Registrable Securities shall exer-cise
the “piggy-back” rights provided for herein by giving writ-ten notice, within
ten days of the receipt of the Com-pany’s notice of its intention to file a
registration state-ment. The Company shall cause any registration statement
filed pursuant to the above “piggyback” rights to remain effective for at least
nine months from the date that the Holders of the Registrable Securities are
first given the opportunity to sell all of such securities.
5.3 Intentionally
Omitted.
5.4 General
Terms.
5.4.1 Indemnification.
The
Company shall indemnify the Holder(s) of the Registrable Securities to be sold
pursuant to any registration statement hereunder and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”),
against all loss, claim, damage, expense or liability (including all reasonable
attorneys’ fees and other expenses reasonably incurred in investigating,
prepar-ing or defending against litigation, commenced or threatened, or any
claim whatsoever whether arising out of any action between the underwriter
and
the Company or between the underwriter and any third party or otherwise) to
which any of them may become subject under the Act, the Exchange Act or
other-wise, arising from such registration statement but only to the same extent
and with the same effect as the provisions pursuant to which the Company has
agreed to indemnify the under-writers contained in Section 5 of the Underwriting
Agreement between the Company, EBC and the other underwriters named therein
dated the Effective Date. The Holder(s) of the Registrable Securities to be
sold
pursuant to such registration statement, and their successors and assigns,
shall
severally, and not jointly, indemnify the Company, its officers and directors
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage, expense or liability (including all reasonable attorneys’ fees and other
expenses reasonably incurred in investigating, prepar-ing or defending against
any claim whatsoever) to which they may become subject under the Act, the
Exchange Act or otherwise, arising from information furnished by or on behalf
of
such Holders, or their successors or assigns, in writing, for specific inclusion
in such registration statement to the same extent and with the same effect
as
the provisions contained in Section 5 of the Underwriting Agreement pursuant
to
which the underwriters have agreed to indemnify the Company.
5
5.4.2 Exercise
of Purchase Options.
Nothing
contained in this Purchase Option shall be construed as requiring the Holder(s)
to exercise their Purchase Options or Warrants underlying such Purchase Options
prior to or after the initial filing of any registration statement or the
effectiveness thereof.
5.4.3 Documents
Delivered to Holders.
The
Company shall furnish EBC, as representative of the Holders participating in
any
of the foregoing offerings, a signed counterpart, addressed to the participating
Holders, of (i) an opinion of counsel to the Com-pany, dated the effective
date
of such registration statement (and, if such registration includes an
underwritten public offer-ing, an opinion dated the date of the closing under
any under-writing agreement related thereto), and (ii) a “cold comfort” letter
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, a letter dated the date
of the closing under the underwriting agreement) signed by the independent
public accountants who have issued a report on the Company’s financial
statements included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement
(and
the prospectus included therein) and, in the case of such accoun-tants’ letter,
with respect to events subsequent to the date of such financial statements,
as
are customarily covered in opinions of issuer’s counsel and in accountants’
letters delivered to underwriters in underwritten public offerings of
securities. The Company shall also deliver promptly to EBC, as representative
of
the Holders participating in the offering, the correspondence and memoranda
described below and copies of all correspondence between the Commission and
the
Company, its counsel or auditors and all memoranda relating to discussions
with
the Commission or its staff with respect to the registration statement and
permit EBC, as representative of the Holders, to do such investigation, upon
reasonable advance notice, with respect to information contained in or omitted
from the registration state-ment as it deems reasonably necessary to comply
with
applicable securities laws or rules of the National Association of Securi-ties
Dealers, Inc. (“NASD”). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and inde-pendent auditors, all to such reasonable extent
and
at such reasonable times and as often as EBC, as representative of the Holders,
shall reasonably request. The Company shall not be required to disclose any
confidential information or other records to EBC, as representative of the
Holders, or to any other person, until and unless such persons shall have
entered into reasonable confidentiality agreements (in form and substance
reasonably satisfactory to the Company), with the Company with respect
thereto.
6
5.4.4 Underwriting
Agreement.
The
Company shall enter into an underwriting agreement with the managing
under-writer(s), if any, selected by any Holders whose Registrable Securities
are being registered pursuant to this Section 5, which managing underwriter
shall be reasonably acceptable to the Company. Such agreement shall be
reasonably satisfactory in form and substance to the Company, each Holder and
such managing underwriters, and shall contain such representations, warranties
and covenants by the Company and such other terms as are customarily contained
in agreements of that type used by the managing underwriter. The Holders shall
be parties to any underwriting agreement relating to an underwritten sale of
their Registrable Securities and may, at their option, require that any or
all
the representations, warranties and covenants of the Company to or for the
benefit of such under-writers shall also be made to and for the benefit of
such
Holders. Such Holders shall not be required to make any repre-sentations or
warranties to or agreements with the Company or the underwriters except as
they
may relate to such Holders and their intended methods of distribution. Such
Holders, however, shall agree to such covenants and indemnification and
contribution obligations for selling stockholders as are customarily contained
in agreements of that type used by the managing underwriter. Further, such
Holders shall execute appropriate custody agreements and otherwise cooperate
fully in the preparation of the registration statement and other documents
relating to any offering in which they include securities pursuant to this
Section 5. Each Holder shall also furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be reasonably required to effect
the
registration of the Registrable Securities.
5.4.5 Rule
144 Sale.
Notwithstanding anything contained in this Section 5 to the contrary, the
Company shall have no obligation pursuant to Sections 5.1 or 5.2 for the
registration of Registrable Securities held by any Holder (i) where such
Holder would then be entitled to sell under Rule 144 within any three-month
period (or such other period prescribed under Rule 144 as may be provided
by amendment thereof) all of the Registrable Securities then held by such
Holder, and (ii) where the number of Registrable Securities held by such
Holder is within the volume limitations under paragraph (e) of
Rule 144 (calculated as if such Holder were an affiliate within the meaning
of Rule 144).
5.4.6 Supplemental
Prospectus.
Each
Holder agrees, that upon receipt of any notice from the Company of the happening
of any event as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, such Holder will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Xxxxxx’s receipt of the copies of a supplemental or
amended prospectus, and, if so desired by the Company, such Holder shall deliver
to the Company (at the expense of the Company) or destroy (and deliver to the
Company a certificate of such destruction) all copies, other than permanent
file
copies then in such Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
6. Adjustments.
6.1
Adjustments
to Exercise Price and Number of Securities.
The
Exercise Price and the number of Units underlying the Purchase Option shall
be
subject to adjustment from time to time as hereinafter set
forth:
7
6.1.1 Stock
Dividends - Split-Ups.
If
after the date hereof, and subject to the provisions of Section 6.4 below,
the
number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock or by a split-up of shares of Common Stock
or
other similar event, then, on the effective date thereof, the number of shares
of Common Stock underlying each of the Units purchasable hereunder shall be
increased in proportion to such increase in outstanding shares. In such case,
the number of shares of Common Stock, and
the
exercise price applicable thereto, underlying
the Warrants underlying each of the Units purchasable hereunder shall be
adjusted in accordance with the terms of the Warrants. For example, if the
Company declares a two-for-one stock dividend and at the time of such dividend
this Purchase Option is for the purchase of one Unit at $6.60 per whole Unit
(each Warrant underlying the Units is exercisable for $5.00 per share), upon
effectiveness of the dividend, this Purchase Option will be adjusted to allow
for the purchase of one Unit at $6.60 per Unit, each Unit entitling the holder
to receive two shares of Common Stock and four Warrants (each Warrant
exercisable for $2.50 per share).
6.1.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 6.4, the number
of outstanding shares of Common Stock is decreased by a consolidation,
combination or reclassifi-cation of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of Common
Stock
underlying each of the Units purchasable hereunder shall be decreased in
proportion to such decrease in outstanding shares. In such case, the number
of
shares of Common Stock, and the exercise price applicable thereto, underlying
the Warrants underlying each of the Units purchasable hereunder shall be
adjusted in accordance with the terms of the Warrants.
6.1.3 Replacement
of Securities upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding shares of Common
Stock other than a change covered by Section 6.1.1 or 6.1.2 hereof or that
solely affects the par value of such shares of Common Stock, or in the case
of
any merger or consolidation of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the property of the Company
as an
entirety or substantially as an entirety in connection with which the Company
is
dissolved, the Holder of this Purchase Option shall have the right thereafter
(until the expiration of the right of exercise of this Purchase Option) to
receive upon the exercise hereof, for the same aggregate Exercise Price payable
hereunder immediately prior to such event, the kind and amount of shares of
stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution
following any such sale or transfer, by a Holder of the number of shares of
Common Stock of the Company obtainable upon exercise of this Purchase Option
and
the underlying Warrants immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered
by
Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to
Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this
Section 6.1.3 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other
transfers.
6.1.4 Changes
in Form of Purchase Option.
This
form of Purchase Option need not be changed because of any change pursuant
to
this Section, and Purchase Options issued after such change may state the same
Exercise Price and the same number of Units as are stated in the Purchase
Options initially issued pursuant to this Agreement. The acceptance by any
Holder of the issuance of new Purchase Options reflecting a required or
permissive change shall not be deemed to waive any rights to an adjustment
occurring after the Commencement Date or the computation thereof.
8
6.2 [Intentionally
Omitted]
6.3 Substitute
Purchase Option.
In case
of any consolidation of the Company with, or merger of the Company with, or
merger of the Company into, another corporation (other than a consolidation
or
merger which does not result in any reclassification or change of the
outstanding Common Stock), the corporation formed by such consolidation or
merger shall execute and deliver to the Holder a supplemental Purchase Option
providing that the holder of each Purchase Option then outstanding or to be
outstanding shall have the right thereafter (until the stated expiration of
such
Purchase Option) to receive, upon exercise of such Purchase Option, the kind
and
amount of shares of stock and other securities and prop-erty receivable upon
such consolidation or merger, by a holder of the number of shares of Common
Stock of the Company for which such Purchase Option might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supple-mental Purchase Option shall provide for adjustments which shall be
identical to the adjustments provided in Section 6. The above provision of
this
Section shall similarly apply to succes-sive consolidations or
mergers.
6.4 Elimination
of Fractional Interests.
The
Company shall not be required to issue certificates representing frac-tions
of
shares of Common Stock or Warrants upon the exercise of the Purchase Option,
nor
shall it be required to issue scrip or pay cash in lieu of any fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction up to the nearest whole number
of
Warrants, shares of Common Stock or other securities, properties or
rights.
7. Reservation
and Listing.
The
Company shall at all times reserve and keep available out of its authorized
shares of Common Stock, solely for the purpose of issuance upon exercise of
the
Purchase Options or the Warrants underlying the Purchase Option, such number
of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Com-pany covenants and agrees that,
upon
exercise of the Purchase Options and payment of the Exercise Price therefor,
all
shares of Common Stock and other securities issuable upon such exercise shall
be
duly and validly issued, fully paid and non-assessable and not subject to
preemptive rights of any stockholder. The Company further covenants and agrees
that upon exercise of the Warrants underlying the Purchase Options and payment
of the respective Warrant exercise price therefor, all shares of Common Stock
and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights
of
any stockholder. As long as the Purchase Options shall be outstanding, the
Company shall use its best efforts to cause all (i) Units and shares of
Common Stock issuable upon exercise of the Purchase Options, (iii) Warrants
issuable upon exercise of the Purchase Options and (iv) shares of Common Stock
issuable upon exercise of the Warrants included in the Units issuable upon
exercise of the Purchase Option to be listed (subject to official notice of
issuance) on all securities exchanges (or, if applicable on the Nasdaq National
Market, SmallCap Market, OTC Bulletin Board or any successor trading market)
on
which the Units, the Common Stock or the Public Warrants issued to the public
in
connection herewith may then be listed and/or quoted.
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8. Certain
Notice Requirements.
8.1 Holder’s
Right to Receive Notice.
Nothing
herein shall be con-strued as conferring upon the Holders the right to vote
or
con-sent as a stockholder for the election of directors or any other matter,
or
as having any rights whatsoever as a stockholder of the Company. If, however,
at
any time prior to the expiration of the Purchase Options and their exercise,
any
of the events described in Section 8.2 shall occur, then, in one or more of
said
events, the Company shall give written notice of such event at least fifteen
days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled to such
dividend, distribution, conversion or exchange of securities or subscrip-tion
rights, or entitled to vote on such proposed dissolution, liquidation, winding
up or sale. Such notice shall specify such record date or the date of the
closing of the transfer books, as the case may be. Notwithstanding the
foregoing, the Company shall deliver to each Holder a copy of each notice given
to the other stockholders of the Company at the same time and in the same manner
that such notice is given to the stockholders.
8.2 Events
Requiring Notice.
The
Company shall be required to give the notice described in this Section 8 upon
one or more of the following events: (i) if the Company shall take a record
of
the holders of its shares of Common Stock for the purpose of entitling them
to
receive a dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution pay-able otherwise than out of retained earnings,
as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company, or (ii) the Company shall offer to all the holders of
its
Common Stock any additional shares of capital stock of the Company or securities
convertible into or exchange-able for shares of capital stock of the Company,
or
any option, right or warrant to subscribe therefor, or (iii) a dissolution,
liquidation or winding up of the Company (other than in connec-tion with a
consolidation or merger) or a sale of all or substan-tially all of its property,
assets and business shall be proposed.
8.3 Notice
of Change in Exercise Price.
The
Company shall, promptly after an event requiring a change in the Exercise Price
pursuant to Section 6 hereof, send notice to the Holders of such event and
change (“Price Notice”). The Price Notice shall describe the event causing the
change and the method of calculating same and shall be certified as being true
and accurate by the Company’s President and Chief Financial
Officer.
8.4 Transmittal
of Notices.
All
notices, requests, consents and other communi-cations under this Purchase Option
shall be in writing and shall be deemed to have been duly made when hand
delivered, or mailed by express mail or pri-vate courier service: (i) If to
the
registered Holder of the Purchase Option, to the address of such Holder as
shown
on the books of the Company, or (ii) if to the Company, to the following address
or to such other address as the Company may designate by notice to the Holders:
7
Gush Etzion, 3rd
Floor
Xxxxxx
Xxxxxx, Xxxxxx 00000
Attn: Chairman
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9. Miscellaneous.
9.1 Amendments.
The
Company and EBC may from time to time supplement or amend this Purchase Option
without the approval of any of the Holders in order to cure any ambiguity,
to
correct or supplement any provision contained herein that may be defective
or
inconsistent with any other provisions herein, or to make any other provisions
in regard to matters or questions arising hereunder that the Company and EBC
may
deem necessary or desirable and that the Company and EBC deem shall not
adversely affect the interest of the Holders. All other modifications or
amendments shall require the written con-sent of and be signed by the party
against whom enforcement of the modification or amendment is
sought.
9.2 Headings.
The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any
of
the terms or provisions of this Purchase Option.
10. Entire
Agreement.
This
Purchase Option (together with the other agreements and documents being
delivered pursuant to or in connection with this Purchase Option) constitutes
the entire agreement of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and under-standings of the parties,
oral and written, with respect to the subject matter hereof.
10.1 Binding
Effect.
This
Purchase Option shall inure solely to the benefit of and shall be binding upon,
the Holder and the Company and their permitted assignees, respective
succes-sors, legal representative and assigns, and no other person shall have
or
be construed to have any legal or equitable right, remedy or claim under or
in
respect of or by virtue of this Purchase Option or any provisions herein
contained.
10.2 Governing
Law; Submission to Jurisdiction.
This
Purchase Option shall be governed by and construed and enforced in accor-dance
with the laws of the State of New York, without giving effect to conflict of
laws. The Company hereby agrees that any action, proceeding or claim against
it
arising out of, or relating in any way to this Purchase Option shall be brought
and enforced in the courts of the State of New York or of the United States
of
America for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclu-sive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent
an
inconvenient forum. Any process or summons to be served upon the Company may
be
served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth
in
Section 8 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the Company in any action, proceeding or claim. The
Company and the Holder agree that the pre-vailing party(ies) in any such action
shall be entitled to recover from the other party(ies) all of its reasonable
attor-neys’ fees and expenses relating to such action or proceeding and/or
incurred in connection with the preparation therefor.
10.3 Waiver,
Etc.
The
failure of the Company or the Holder to at any time enforce any of the
provisions of this Purchase Option shall not be deemed or construed to be a
waiver of any such provision, nor to in any way affect the validity of this
Purchase Option or any provision hereof or the right of the Company or any
Holder to thereafter enforce each and every provision of this Purchase Option.
No waiver of any breach, non-compliance or non-fulfillment of any of the
provisions of this Purchase Option shall be effective unless set forth in a
written instrument executed by the party or parties against whom or which
enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver
of
any other or subsequent breach, non-compliance or non-fulfillment.
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10.4 Execution
in Counterparts.
This
Purchase Option may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which shall be deemed
to be an original, but all of which taken together shall constitute one and
the
same agreement, and shall become effective when one or more counterparts has
been signed by each of the parties hereto and delivered to each of the other
parties hereto.
10.5 Exchange
Agreement.
As a
condition of the Holder’s receipt and acceptance of this Purchase Option, Xxxxxx
agrees that, at any time prior to the complete exercise of this Purchase Option
by Holder, if the Company and EBC enter into an agreement (“Exchange Agreement”)
pursuant to which they agree that all outstanding Purchase Options will be
exchanged for securities or cash or a combination of both, then Holder shall
agree to such exchange and become a party to the Exchange
Agreement.
10.6
Underlying
Warrants.
At any
time after exercise by the Holder of this Purchase Option, the Holder may
exchange his Warrants (with a $6.65 exercise price) for Public Warrants (with
a
$5.00 exercise price) upon payment to the Company of the difference between
the
exercise price of his Warrant and the exercise price of the Public
Warrants.
12
IN
WITNESS WHEREOF, the Company has caused this Pur-chase Option to be signed
by
its duly authorized officer as of the ____ day of November, 2006.
By
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:_________________________________
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Name:
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Title:
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Form
to
be used to exercise Purchase Option:
7
Gush
Etzion, 3rd
Floor
Xxxxxx
Xxxxxx, Israel 54030
Date:_________________,
200__
The
undersigned hereby elects irrevocably to exercise all or a portion of the within
Purchase Option and to purchase ____ Units of Israel Technology Acquisition
Corp. and hereby makes payment of $____________ (at the rate of $_________
per
Unit) in payment of the Exercise Price pursuant thereto. Please issue the Common
Stock and Warrants as to which this Purchase Option is exercised in accordance
with the instructions given below.
or
The
undersigned hereby elects irrevocably to convert its right to purchase _________
Units purchasable under the within Purchase Option by surrender of the
unexercised portion of the attached Purchase Option (with a “Value” based of
$_______ based on a “Market Price” of $_______). Please issue the securities
comprising the Units as to which this Purchase Option is exercised in accordance
with the instructions given below.
______________________________
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Signature
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______________________________
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Signature
Guaranteed
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INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
Name_____________________________________________________________
(Print
in
Block Letters)
Address__________________________________________________________
NOTICE:
The signature to this form must correspond with the name as written upon the
face of the within Purchase Option in every particular without alter-ation
or
enlargement or any change whatsoever, and must be guar-anteed by a bank, other
than a savings bank, or by a trust company or by a firm having membership on
a
registered national securities exchange.
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Form
to
be used to assign Purchase Option:
ASSIGNMENT
(To
be
executed by the registered Holder to effect a transfer of the within Purchase
Option):
FOR
VALUE
RECEIVED,______________________________________________
does
hereby sell, assign and transfer
unto___________________________________________
the
right
to purchase __________ Units of Israel Technology Acquisition Corp. (“Company”)
evidenced by the within Purchase Option and does hereby authorize the Company
to
transfer such right on the books of the Company.
Dated:___________________,
200_
______________________________
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Signature
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______________________________
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Signature
Guaranteed
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NOTICE:
The signature to this form must correspond with the name as written upon the
face of the within Purchase Option in every particular without alter-ation
or
enlargement or any change whatsoever, and must be guar-anteed by a bank, other
than a savings bank, or by a trust company or by a firm having membership on
a
registered national securities exchange.
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