EXTENSION AGREEMENT
This Extension Agreement (this "Agreement") is entered into as of
January 7, 2009, by and among (i) Attunity Ltd., a company organized under the
laws of the State of Israel and registered under No. 00-000000-0 (the
"Company"), and (ii) the individuals and entities listed in Exhibit A hereto
(each, a "Holder" and collectively, "Holders").
WITNESSETH
WHEREAS, the Company and the Holders entered into that certain Note and
Warrant Purchase Agreement, dated March 22, 2004 (together with the ancillary
documents thereto, the "Note Purchase Agreement"); and pursuant to the Note
Purchase Agreement, each of the Holders was issued, and currently holds,
Convertible Promissory Notes due May 4, 2009 (the "Notes") in the principal
amounts set forth opposite each Holder's name in Exhibit A hereto;
WHEREAS, the Company and certain of the Holders entered into that
certain Securities Purchase Agreement, dated August 29, 2006 (together with the
ancillary documents thereto, the "Securities Purchase Agreement"); and pursuant
to the Securities Purchase Agreement, each of the Holders (or another person if
so indicated in Exhibit A) was issued, and currently holds, Warrants to purchase
Ordinary Shares of the Company, exercisable until October 9, 2009 at an exercise
price of $1.25 per share (the "Warrants"), for the number of Warrant Shares set
forth opposite each Holder's name in Exhibit A hereto; and
WHEREAS, subject to the terms and conditions set forth herein, the
parties wish to extend the maturity date of the Notes by eighteen (18) months
and, in connection therewith, to amend some of the terms of the Notes and
Warrants as further set forth herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Preamble. The preamble to this Agreement constitutes an integral part hereof.
2. Effective Date. This Agreement shall become effective subject to (i) the
approval thereof by the shareholders of the Company (the "Effective Date") and
(ii) the conversion into equity securities of all of the outstanding principal
amount provided (or to be provided up to $0.9 million) to the Company in
accordance with that Loan Agreement, dated November 25, 2008 (the "Bridge
Loan").
3. Extension; Amendments. As of the Effective Date, the following shall
immediately and automatically come into effect:
3.1. Notwithstanding anything to the contrary in the Note Purchase Agreement or
the Notes, (i) the term "Maturity Date" (as defined in the Notes) shall be
amended for all intents and purposes so as to read "November 4, 2010", and (ii)
Section 1.2 of the Notes shall be amended so that the words "this Note shall
bear interest, in arrears, at a rate per annum equal to five percent (5%),
payable semi-annually in cash on the first business day of September and March
each year" shall be replaced by "this Note shall bear interest, in arrears, at a
floating annual rate of the LIBOR rate published on the first day of each of
March and September plus five percent (5%), payable semi-annually in cash on the
first business day of September and March each year", it being understood that
such new interest rate shall become effective as of the Effective Date.
3.2. Notwithstanding anything to the contrary in the Securities Purchase
Agreement or the Warrants, (i) the term "Termination Date" (as defined in the
Warrants) shall be amended for all intents and purposes so as to read "April 9,
2011", and (ii) Section 11(b) of the Warrants shall be amended so that the words
"If the Company consummates at any time following the date hereof a transaction
or a series of related transactions offering Ordinary Shares or Ordinary Shares
Equivalents for an aggregate offering price of more than $1,500,000 (a
"Financing")" shall be replaced by "If the Company consummates at any time
following the date hereof a transaction or a series of related transactions
offering Ordinary Shares or Ordinary Shares Equivalents for an aggregate
offering price of more than $100,000 (a "Financing")".
3.3. The Note Purchase Agreement shall be amended, to add a new Section 3.16, to
read as follows:
"For as long as the principal amount under any of the Notes
remains outstanding, the Company shall not, without prior written consent of all
the holders of the outstanding principal amount of the Notes then outstanding,
borrow any loan which is ranked senior to, or parri passu with, the Notes; it
being understood that the foregoing shall not apply to the existing $2 million
loan from Plenus (or any amendment or restructuring thereof with Plenus or
another person, as long as the principal amount is not increased)."
4. Representations and Warranties.
4.1 By Company. The Company hereby represents and warrants to the
Holders as of the date hereof as follows: (a) Company is a corporation duly
formed and validly existing under the laws of the State of Israel, with full
corporate power and authority to enter into and perform its obligations under
this Agreement; (b) Company has full power and authority to consummate the
transactions contemplated hereunder; (c) the consummation of the transactions
contemplated hereunder and the performance of this Agreement by the Company will
not violate the provisions of the current Memorandum and Articles of Association
of the Company, or any applicable law; (d) the execution and performance of this
Agreement by the Company has been duly authorized by all necessary corporate
actions and has been duly executed and delivered by the Company; and (e) this
Agreement is valid and binding upon the Company and enforceable in accordance
with its terms, subject to (1) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and (2) rules of law governing
specific performance, injunctive relief and other equitable remedies.
4.2 By Holders. Each of the Holders, severally and not jointly,
represents and warrants to the Company on the date hereof as follows: (a) it has
the full power and authority to execute this Agreement and to consummate the
transactions contemplated hereby to be consummated by the Holder. This Agreement
has been duly executed by the Holder, and this Agreement constitutes the valid
and binding obligation of the Holder, enforceable against it in accordance with
its respective terms, subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies;
(b) if a corporation, the Holder is duly organized and properly registered in
the jurisdiction of its organization and the execution, delivery and performance
of this Agreement will not violate any provision of the corporate documents of
such Holder; (c) Holder has knowledge and experience in financial and business
matters, is capable of evaluating the merits and risks of the transactions
evidenced by this Agreement and can bear the economic consequences of such
investment and/or loan for an indefinite period of time; (d) Holder is an
"accredited investor" as defined in Regulation D promulgated under the
Securities Act; (e) Holder is purchasing the securities under this Agreement
only for investment, for the Holder's own account, and without any present
intention to sell or distribute such securities; and (f) Holder will not sell,
pledge or otherwise dispose of any of the securities issued or to be issued
hereunder in violation of the Securities Act, the Securities Exchange Act of
1934, or the rules and regulations of the SEC promulgated under either of the
foregoing.
5. Acknowledgement. The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement. By
executing this Agreement, each of the parties hereby represents that it is aware
to his, her or its right to consult with its own legal counsel concerning this
Agreement and this provision.
6. Miscellaneous. This Agreement shall be governed by, and construed according
to, the laws of the State of Israel, without regard to the conflict of laws
provisions thereof. Other than as specifically set forth herein, the Note
Purchase Agreement, the Notes, the Securities Purchase Agreement and the
Warrants shall remain in full force and effect with no changes.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Extension Agreement
as of the date first above written:
The Company:
Attunity Ltd.
By:_________________________
Name: ______________________
Title: _______________________
The Holders:
_____________________________________ _______________________________
GF Capital Management & Advisors, LLC Barrossa Finance LTD.
By:_________________________ By:_________________________
Name: ______________________ Name: ______________________
Title: _______________________ Title: _______________________
_____________________________________ _______________________________
Xxxxxx Xxxx Xxxxxx Xxxxxxxx
By:_________________________ By:_________________________
_____________________________________ _______________________________
Xxx Xxxxxx Xxxxx Xxxxxxxx
By:_________________________ By:_________________________
_____________________________________ _______________________________
Xxx Xxxxxxxxx Xxxxxxx Xxxxxxxx
By:_________________________ By:_________________________
_____________________________________
Xxxxx Xxxxxx
By:_________________________
EXHIBIT A
Names and Addresses of Purchasers Principal Amount ($) Warrant Shares
--------------------------------- -------------------- --------------
368,000 110,400
Xxxxxx Xxxx
00 Xxxxxx Xx, Xxxxxxxxx, XX 00000
XXX
368,000 110,400
Xxx Xxxxxxxxx
0X Xxxxxxxx Xx, Xxxx Xxxxxxxxx
Xxxxxx
160,000 48,000
Xxx Xxxxxx
00 Xxxxxx Xx, Xxxxx Xxx
Xxxxxx 00000
220,800 66,240
GF Capital Management & Advisors, LLC
000 Xxxx Xxx # 0, Xxx Xxxx, XX 00000
XXX
147,200 44,160
Xxxxx Xxxxxx
Xxxxxxxxxxxx 00, 0000 Xxx
Xxxxxxxxxxx
184,000 55,200
Xxxxxx Xxxxxxxx
Xxxxxxxx-Xxxx, XX Xxx 000,
Xxxx Xxxxxxxxx, 00000 Xxxxxx
92,000 27,600
Xxxxx Xxxxxxxx
Kotlicki-Pery, XX Xxx 000,
Xxxx Xxxxxxxxx, 00000 Xxxxxx
92,000 27,600
Xxxxxxx Xxxxxxxx
Xxxxxxxx-Xxxx, XX Xxx 000,
Xxxx Xxxxxxxxx, 00000 Xxxxxx
Barrossa Finance Ltd. 368,000 110,400*
x/x Xxxx@ Xxxxxxxxx, 00 Xxxxxxxxxxx
XX-0000, Xxxxxx
Xxxxxxxxxxx
* The warrants are held by Lesser Trust, an intended beneficiary of this
Agreement.
