EXHIBIT 4.15
EXECUTION VERSION
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SECURITIES PURCHASE AGREEMENT
by and among
ATTUNITY LTD.
and
THE PURCHASERS IDENTIFIED ON THE SIGNATURE PAGES HERETO
January 24, 2005
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SECURITIES PURCHASE AGREEMENT
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This Securities Purchase Agreement (this "Agreement") is dated as of
January 24, 2005, by and among Attunity Ltd., an Israeli company (the
"Company"), and each purchaser identified on the signature pages hereto (each, a
"Purchaser" and collectively the "Purchasers").
WHEREAS, subject to the terms and conditions set forth in this Agreement
and pursuant to Section 4(2) of the Securities Act (as defined below) and Rule
506 promulgated thereunder, the Company desires to issue and sell to the
Purchasers, and the Purchasers, severally and not jointly, desire to purchase
from the Company, in the aggregate, 727,273 Ordinary Shares (as defined below)
and Warrants (as defined below) on the Closing Date (as defined below).
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and each Purchaser agrees
as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms have the
meanings indicated in this Section 1.1:
"Action" shall have the meaning ascribed to such term in Section 3.1(j).
"Affiliate" means any Person that, directly or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 144. With
respect to a Purchaser, any investment fund or managed account that is managed
on a discretionary basis by the same investment manager as such Purchaser will
be deemed to be an Affiliate of such Purchaser.
"Closing" shall have the meaning ascribed to such term in Section 2.1.
"Closing Date" shall have the meaning ascribed to such term in Section 2.1.
"Closing Price" means on any particular date (a) the last reported closing
price per share of Ordinary Shares on such date on the Trading Market (as
reported by Bloomberg L.P.), or (b) if there is no such price on such date, then
the closing price on the Trading Market on the date nearest preceding such date
(as reported by Bloomberg L.P.), or (c) if the Ordinary Shares are not then
listed or quoted on a Trading Market and if prices for the Ordinary Shares are
then quoted on the OTCBB, the closing price of the Ordinary Shares for such date
(or the nearest preceding date) on the OTCBB (as reported by Bloomberg L.P.), or
(d) if the Ordinary Shares are not then listed or quoted on the Trading Market
and if prices for the Ordinary Shares are then reported in the "pink sheets"
published by the Pink Sheets LLC (formerly the National Quotation Bureau
Incorporated (or a similar organization or agency succeeding to its functions of
reporting prices)), the most recent bid price per Ordinary Share so reported, or
(e) if the Ordinary Shares are not then publicly traded, the fair market value
of an Ordinary Share as determined by a qualified independent appraiser selected
by the Company and the Majority Purchasers.
"Commission" means the United States Securities and Exchange Commission.
"Company Counsel" means Goldfarb, Levy, Eran & Co., with offices at
Xxxxxx-Xxxxxx Xxxxx, 0 Xxxxxxxx Xxxxxx, Xxx Xxxx 00000, Xxxxxx.
"Disclosure Schedules" means the Disclosure Schedules of the Company
attached hereto and incorporated herein.
"Effective Date" means the date that a Registration Statement is first
declared effective by the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Intellectual Property Rights" shall have the meaning ascribed to such term
in Section 3.1(o).
"Liens" means a lien, charge, security interest, encumbrance, right of
first refusal, preemptive right or other similar restriction.
"Material Adverse Effect" shall have the meaning ascribed to such term in
Section 3.1(b).
"Material Permits" shall have the meaning ascribed to such term in Section
3.1(m).
"Ordinary Shares" means the ordinary shares of the Company, NIS 0.1 par
value each.
"Ordinary Shares Equivalents" means any securities of the Company which
would entitle the holder thereof to acquire at any time shares of Ordinary
Shares, including without limitation, any debt, preferred stock, rights,
options, warrants or other instrument that is at any time convertible into or
exchangeable for, or otherwise entitles the holder thereof to receive, shares of
Ordinary Shares.
"OTCBB" means the Over-The-Counter Bulletin Board.
"Per Share Purchase Price" equals $2.75, subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar
transactions of the Ordinary Shares that occur after the date of this Agreement.
"Person" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other legal entity of any kind.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition).
"Registration Statement" means a registration statement meeting the
requirements set forth in the Registration Rights Agreement and covering the
resale by the Purchasers of the Shares and the Warrant Shares or a portion
thereof (as provided for in the Registration Rights Agreement).
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"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the date of this Agreement, by and among the Company and each
Purchaser, in the form of Exhibit A hereto.
"Required Approvals" shall have the meaning ascribed to such term in
Section 3.1(e).
"Rule 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"SEC Reports" shall have the meaning ascribed to such term in Section
3.1(h).
"Securities" means the Shares, the Warrants and the Warrant Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the Ordinary Shares issued or issuable to each Purchaser
pursuant to this Agreement.
"Subscription Amount" means, as to each Purchaser, the amounts set forth
below such Purchaser's signature block on the signature page hereto, in United
States dollars and in immediately available funds.
"Subsidiary" shall mean the subsidiaries of the Company, if any, set forth
on Schedule 3.1(a).
"TRP" shall mean Xxxxxx Xxxx & Priest LLP with offices located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Trading Day" means a day on which the Ordinary Shares are traded on the
Nasdaq National Market.
"Trading Market" means each of the following markets or exchanges on which
the Ordinary Shares is listed or quoted for trading on the date in question:
OTCBB, the American Stock Exchange, the New York Stock Exchange, the Nasdaq
National Market or the Nasdaq SmallCap Market.
"Transaction Documents" means this Agreement, the Warrants and the
Registration Rights Agreement and any other documents or agreements executed in
connection with the transactions contemplated hereunder.
"Warrants" means the Warrants, in the form of Exhibit B, issuable to the
Purchasers.
"Warrant Shares" means the Ordinary Shares issuable upon exercise of the
Warrants.
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ARTICLE II.
PURCHASE AND SALE
2.1 Closing. On the Closing Date, each and every Purchaser shall purchase
from the Company, severally and not jointly with the other Purchasers, and the
Company shall issue and sell to each Purchaser, (a) a number of Shares equal to
such Purchaser's Subscription Amount divided by the Per Share Purchase Price and
(b) the Warrants as determined pursuant to Section 2.2(b). The aggregate
Subscription Amounts for Shares sold hereunder shall be $2,000,000.70 (the
"Aggregate Purchase Price"). The closing of such sale and purchase (the
"Closing") shall take place at 10:00 a.m., NY time, on the Trading Day
immediately following the satisfaction or waiver (by the applicable party) of
all the conditions set forth in Sections 2.3(a) and 2.3(b), or such other date
as the Company and the Purchasers representing a majority of the Aggregate
Purchase Price (the "Majority Purchasers") agree in writing (the "Closing
Date"), at the offices of TRP or such other location as the Company and the
Majority Purchasers shall mutually agree.
2.2 Deliveries.
(a) On the Closing Date, the Company shall deliver or cause to be
delivered to each Purchaser the following:
(i) a copy of duly executed irrevocable instructions, in the form
of Exhibit C attached hereto, to the Company's transfer agent
instructing the transfer agent to deliver, on an expedited basis, a
certificate evidencing a number of Shares equal to such Purchaser's
Subscription Amount divided by the Per Share Purchase Price,
registered in the name of such Purchaser;
(ii) the Registration Rights Agreement duly executed by the
Company; and
(iii) a legal opinion of Company Counsel, in the form of Exhibit
D attached hereto.
(b) Within three (3) Trading Days of the Closing Date, the Company
shall deliver or cause to be delivered to each Purchaser a Warrant,
registered in the name of such Purchaser, pursuant to which such Purchaser
shall have the right to acquire up to the number of Ordinary Shares equal
to 40% of the Shares issued to such Purchaser on the Closing Date.
(c) On the Closing Date, each Purchaser shall deliver or cause to be
delivered to the Company the following:
(i) such Purchaser's Subscription Amount by wire transfer to the
account as specified in writing by the Company; and
(ii) the Registration Rights Agreement duly executed by such
Purchaser.
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(d) On the date hereof, each of the non-Israeli Purchasers shall
deliver to the Company an executed undertaking towards the Office of the
Chief Scientist of the Israeli Ministry of Industry, Trade & Labor (the
"OCS") in the form of Exhibit E attached hereto.
2.3 Closing Conditions.
(a) Purchasers' Closing Conditions. The obligation of each Purchaser
to consummate the transactions contemplated by this Agreement at the
Closing, as provided in Section 2.1 hereof, shall be subject, in the
absence of a written waiver by the Majority Purchasers, to the
satisfaction, prior or at the Closing, of the following conditions:
(i) the representations and warranties of the Company contained
in this Agreement shall be true in all material respects on and as of
the Closing Date as though such warranties and representations were
made at and as of such date;
(ii) the Company shall have performed and complied in all
material respects with all agreements, covenants and conditions
contained in this Agreement which are required to be performed or
complied with by the Company prior to or on the Closing Date;
(iii) there shall be no effective injunction, writ, preliminary
restraining order or any order of any nature issued by a court of
competent jurisdiction directing that the transactions provided for
herein or any of them not be consummated as herein provided;
(iv) the approvals of the Investment Center of the Israeli
Ministry of Industry, Trade & Labor (the "Investment Center") and of
the OCS shall have been obtained;
(v) from the date hereof to the Closing Date, trading in the
Ordinary Shares shall not have been suspended by the Commission
(except for any suspension of trading of limited duration agreed to by
the Company, which suspension shall be terminated prior to the
Closing), and, at any time prior to the Closing Date, trading in
securities generally shall not have been suspended or limited on any
Trading Market, nor shall a general commercial banking moratorium have
been declared either by the United States or New York State
authorities nor shall there have occurred any material and substantial
outbreak or escalation of hostilities or other national or
international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each case,
in the reasonable judgment of the Majority Purchasers, makes it
impracticable or inadvisable to purchase the Shares at the Closing;
and
(vi) the Closing Date shall have not occurred within seven (7)
Trading Days following the date hereof.
(b) Company's Closing Conditions. The obligation of the Company to
consummate the transactions contemplated by this Agreement at the Closing, as
provided in Section 2.1 hereof, shall be subject, in the absence of a written
waiver by the Company, to the satisfaction, prior or at the Closing, of the
following conditions:
(i) the representations and warranties of each of the Purchasers
contained in this Agreement shall be true on and as of the Closing
Date in all material respects as though such warranties and
representations were made at and as of such date;
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(ii) each Purchaser shall have performed and complied in all
material respects with all agreements, covenants and conditions
contained in this Agreement which are required to be performed or
complied with by it prior to or on the Closing Date;
(iii) there shall be no effective injunction, writ, preliminary
restraining order or any order of any nature issued by a court of
competent jurisdiction directing that the transactions provided for
herein or any of them not be consummated as herein provided;
(iv) the approvals of the Investment Center and of the OCS shall
have been obtained;
(v) receipt by the Company of the entire Aggregate Purchase
Price; and
(vi) the Closing Date shall have not occurred within seven (7)
Trading Days following the date hereof.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except as otherwise set
forth in the Disclosure Schedules attached hereto, which Disclosure Schedules
shall be deemed a part hereof, the Company hereby represents and warrants as of
the date hereof and as of the Closing Date to each Purchaser as follows:
(a) Subsidiaries. All of the direct and indirect subsidiaries of the
Company are set forth on Schedule 3.1(a) (the "Subsidiaries"). The Company
owns, directly or indirectly, all of the capital stock or other equity
interests of each Subsidiary free and clear of any Liens, and all the
issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase such securities.
(b) Organization and Qualification. Each of the Company and the
Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and, where applicable, in good standing, under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and
to carry on its business as currently conducted except where failure to be
so qualified, organized or have such power and authority would not
reasonably be expected to have a Material Adverse Effect (as defined
below). Neither the Company nor any Subsidiary is in violation or default
of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of
the Company and the Subsidiaries is duly qualified to conduct business and,
where applicable, is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where
the failure to be so qualified or in good standing, as the case may be,
would not have or reasonably be expected to result in (x) a material
adverse effect on the legality, validity or enforceability of any
Transaction Document, or (y) a material adverse effect on the results of
operations, assets, business or financial
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condition of the Company and the Subsidiaries, taken as a whole, provided,
however, that in no event shall any of the following, alone or in
combination, be deemed to constitute, nor shall any of the following be
taken into account in determining whether there has been or will be, a
Material Adverse Effect: (i) any change in the Company's stock price or
trading volume in and of itself (but not excluding the underlying cause of
any such change pursuant to this clause (i)); (ii) any change, event,
violation, inaccuracy, circumstance or effect that results from changes,
events or circumstances affecting general economic conditions (which
changes, events or circumstances do not disproportionately affect such
entity); (iii) any change, event, violation, inaccuracy, circumstance or
effect resulting from acts of war or terrorism or any escalation thereof in
and of itself (but excluding any changes or effect uniquely on or uniquely
with respect to the Company resulting from any such act pursuant to this
clause (iii); or (iv) any change, event, violation, inaccuracy,
circumstance or effect that results from any action or inaction taken by
the Purchasers (any of (x) or (y), a "Material Adverse Effect"), and to the
knowledge of the Company, no Proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit
or curtail such power and authority or qualification.
(c) Authorization; Enforcement. The Company has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated by each of the Transaction
Documents to which it is a party and otherwise to carry out its obligations
thereunder. The execution, delivery and performance by the Company of each
of the Transaction Documents to which it is a party and the consummation by
it of the transactions contemplated thereby have been duly authorized by
all necessary action on the part of the Company and no further action is
required by the Company in connection therewith other than in connection
with the Required Approvals. Each Transaction Document to which it is a
party has been (or upon delivery will have been) duly executed by the
Company and, when delivered in accordance with the terms hereof, will
constitute the valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors'
rights generally, (ii) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable remedies and
(iii) as the rights to indemnification or contribution hereunder and
thereunder may be limited by applicable law.
(d) No Conflicts. The execution, delivery and performance by the
Company of the Transaction Documents to which it is a party, the issuance
and sale of the Shares and the consummation by the Company of the other
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of the Company's or any Subsidiary's memorandum or
articles of association or other organizational or charter documents, or
(ii) subject to obtaining the Required Approvals, conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, result in the creation of any Lien upon any
of the properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument evidencing a Company or Subsidiary debt
or other understanding to which the Company or any Subsidiary is a party or
by which any property or material asset of the
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Company or any Subsidiary is bound, or (iii) subject to obtaining the
Required Approvals, conflict with or result in a violation of any law,
rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary
is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound,
or (iv) violate the terms of any agreement by which the Company or any
Subsidiary is bound or to which any property or asset of the Company or any
Subsidiary is bound; except in the case of each of clauses (ii), (iii) and
(iv), such as would not have or reasonably be expected to result in a
Material Adverse Effect.
(e) Filings, Consents and Approvals. The Company is not required to
obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state,
local or other governmental authority or other Person in connection with
the execution, delivery and performance by the Company of the Transaction
Documents, other than (i) filings required pursuant to Section 4.4 of this
Agreement, (ii) the filing with the Commission of the Registration
Statement, (iii) application(s) to the Nasdaq Stock Market for the listing
of the Shares and Warrant Shares for trading thereon in the time and manner
required thereby, (iv) the filing of Form D with the Commission and such
filings as are required to be made under applicable state securities laws,
(v) any other filings required to be made pursuant to the terms of the
Registration Rights Agreement, and (vi) the approvals and notices set forth
on Section 3.1(e) of the Disclosure Schedules (collectively, the "Required
Approvals").
(f) Issuance of the Securities. The Shares and Warrants have been duly
authorized and, when issued and paid for in accordance with the terms of
the Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Transaction Documents and
under applicable laws. The Warrant Shares, when issued and paid for in
accordance with the terms of the Transaction Documents, will be validly
issued, fully paid and nonassessable, free and clear of all Liens imposed
by the Company other than restrictions on transfer provided for in the
Transaction Documents and under applicable laws. The Company has reserved
from its duly authorized capital stock the maximum number of Ordinary
Shares issuable pursuant to this Agreement and the Warrants.
(g) Capitalization. Since September 30, 2004, the Company has not
issued any capital stock other than pursuant to the exercise of employee
stock options under the Company's stock option plans, the issuance of
shares of Ordinary Shares to employees pursuant to the Company's employee
stock purchase plan and pursuant to the conversion or exercise of
outstanding Ordinary Shares Equivalents outstanding. No Person has any
right of first refusal, preemptive right, right of participation, or any
similar right to participate in the transactions contemplated by the
Transaction Documents. Except (i) as a result of the purchase and sale of
the Securities and (ii) the outstanding Ordinary Shares and Ordinary Shares
Equivalents set forth in Section 3.1(g) of the Disclosure Schedules, there
are no outstanding options, warrants, script rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exchangeable for, or giving any
Person any right to subscribe for or acquire, any Ordinary
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Shares, or contracts, commitments, understandings or arrangements by which
the Company or any Subsidiary is or may become bound to issue additional
Ordinary Shares, or securities or rights convertible or exchangeable into
Ordinary Shares. The issue and sale of the Securities will not obligate the
Company to issue Ordinary Shares or other securities to any Person (other
than the Purchasers) and will not result in a right of any holder of
Company securities to adjust the exercise, conversion, exchange or reset
price under such securities. All of the outstanding shares of capital stock
of the Company are validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, and none
of such outstanding shares were issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. No
further approval or authorization of any shareholder, the Board of
Directors of the Company or others is required for the issuance and sale of
the Shares. Except as disclosed in the SEC Reports, there are no
shareholders agreements, voting agreements or other similar agreements with
respect to the Company's capital stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the Company's
shareholders.
(h) SEC Reports; Financial Statements. The Company has filed all
reports required to be filed by it under the Exchange Act, including
without limitation, those filed pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (the foregoing materials,
including the exhibits thereto, being collectively referred to herein as
the "SEC Reports") on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the
expiration of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
The financial statements of the Company included in the SEC Reports comply
as to form in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in
effect at the time of filing. Such financial statements have been prepared
in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods covered therein ("GAAP"),
except as may be otherwise specified in such financial statements or the
notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments.
(i) Material Changes. Since September 30, 2004, except as disclosed in
the SEC Reports, (i) there has been no event, occurrence or development
that has had or that would reasonably be expected to result in a Material
Adverse Effect, (ii) the Company has not altered its method of accounting,
(iii) the Company has not incurred any material liabilities (contingent or
otherwise) other than (A) liabilities incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to
be reflected in the Company's financial statements pursuant to GAAP or
required to be disclosed in filings
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made with the Commission, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its shareholders or
purchased, redeemed or made any agreements to purchase or redeem any shares
of its capital stock and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant to
existing Company stock option plans. The Company does not have pending
before the Commission any request for confidential treatment of
information.
(j) Litigation. There is no action, suit, inquiry, notice of violation
or proceeding pending or, to the knowledge of the Company, threatened, nor,
to the knowledge of the Company, is any investigation pending or
threatened, against the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county,
local or foreign) (collectively, an "Action") which (i) challenges the
legality, validity or enforceability of any of the Transaction Documents or
the Securities or (ii) would, if there were an unfavorable decision, have
or reasonably be expected to result in a Material Adverse Effect. Neither
the Company nor any Subsidiary, nor to the knowledge of the Company, any
director or officer thereof (in his capacity as such), is or has been in
the past five years the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty. There has not been in the past five years, and
to the knowledge of the Company, there is not pending, any investigation by
the Commission involving the Company or any current or former director or
officer of the Company. The Commission has not issued in the past five
years any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the
Exchange Act or the Securities Act.
(k) Labor Relations. No material labor dispute exists or, to the
knowledge of the Company, is imminent with respect to any of the employees
of the Company or any Subsidiary which would reasonably be expected to
result in a Material Adverse Effect.
(l) Compliance. Neither the Company nor any Subsidiary (i) is in
default under or in violation of (and no event has occurred that has not
been waived that, with notice or lapse of time or both, would result in a
default by the Company or any Subsidiary under), nor has the Company or any
Subsidiary received written notice of a claim that it is in default under,
any indenture, loan or credit agreement or any other agreement or
instrument to which it is a party or by which it or any of its properties
is bound (whether or not such default or violation has been waived), (ii)
is in violation of any order of any court, arbitrator or governmental body,
or (iii) is in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign, federal,
state and local laws applicable to its business, except in each case as
would not have a Material Adverse Effect.
(m) Regulatory Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the
failure to possess such permits would not have or reasonably be expected to
result in a Material Adverse Effect ("Material Permits"), and
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neither the Company nor any Subsidiary has received any written notice of
proceedings relating to the revocation or modification of any Material
Permit.
(n) Title to Assets. The Company and the Subsidiaries have good and
marketable title to all real property owned by them that is material to the
business of the Company and the Subsidiaries and valid title in all
personal property owned by them that is material to the business of the
Company and the Subsidiaries, in each case free and clear of all Liens,
except for Liens as do not materially affect the value of such property and
do not materially interfere with the use made and proposed to be made of
such property by the Company and the Subsidiaries and Liens for the payment
of federal, state or other taxes, the payment of which is neither
delinquent nor subject to penalties or that are otherwise would not have or
reasonably be expected to result in a Material Adverse Effect. Any real
property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable
leases and no landlord for any such real property or facility has notified
the Company or any such Subsidiary that any of them are in default under
any such lease.
(o) Patents and Trademarks. The Company and the Subsidiaries have, or
have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses and other
similar rights necessary or material for use in connection with their
respective businesses as described in the SEC Reports and which the failure
to so have would have a Material Adverse Effect (collectively, the
"Intellectual Property Rights"). Neither the Company nor any Subsidiary has
received a written notice that the Intellectual Property Rights used by the
Company or any Subsidiary violates or infringes upon the rights of any
Person. To the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no known existing infringement by
another Person of any of the Intellectual Property Rights which would have
a Material Adverse Effect.
(p) Insurance. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company believes are, given the size and
financial condition of the Company, prudent and customary in the businesses
in which the Company and the Subsidiaries are engaged. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
(q) Transactions With Affiliates and Employees. Except as set forth in
the SEC Reports, none of the officers or directors of the Company and, to
the knowledge of the Company, none of the employees of the Company is
presently a party to any transaction with the Company or any Subsidiary
(other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing
of services to or by, providing for rental of real or personal property to
or from, or otherwise requiring payments to or from any officer, director
or such employee or, to the knowledge of the Company, any entity in which
any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner, in each case in excess
12
of $60,000 other than (i) for payment of salary or consulting fees for
services rendered, (ii) reimbursement for expenses incurred on behalf of
the Company and (iii) for other benefits under benefit or pension plans
sponsored by the Company, including without limitation stock option
agreements under any stock option plan of the Company.
(r) Xxxxxxxx-Xxxxx Matters. The Company is in material compliance with
all provisions of the Xxxxxxxx-Xxxxx Act of 2002 which are applicable to it
as of the Closing Date. The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for
the Company and designed such disclosure controls and procedures to ensure
that material information relating to the Company, including its
consolidated Subsidiaries, is made known to the certifying officers by
others within those entities. The Company's certifying officers have
evaluated the effectiveness of the Company's disclosure controls and
procedures as of the end of the period covered by its most recently filed
annual report under the Exchange Act (the date of such evaluation, the
"Evaluation Date"). The Company presented in its most recently filed annual
report under the Exchange Act the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on
their evaluations as of the Evaluation Date. Since the Evaluation Date,
there have been no significant changes in the Company's internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) or, to the best of the Company's knowledge, in other factors
that could significantly affect the Company's internal controls.
(s) Certain Fees. No brokerage or finder's fees or commissions are or
will be payable by the Company or any Subsidiary to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by this
Agreement. To the knowledge of the Company, the Purchasers shall have no
obligation with respect to any fees or with respect to any claims made by
or on behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by
this Agreement.
(t) Private Placement. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, and except as
contemplated by the Registration Rights Agreement, no registration under
the Securities Act is required for the offer and sale of the Securities by
the Company to the Purchasers as contemplated hereby. The issuance and sale
of the Securities hereunder does not contravene the rules and regulations
of the Nasdaq Stock Market.
(u) Investment Company. The Company is not, and is not an Affiliate
of, and immediately after receipt of payment for the Shares, will not be or
be an Affiliate of, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(v) Registration Rights. Except as disclosed in the SEC Reports, no
Person has any right to cause the Company to effect the registration under
the Securities Act of any securities of the Company.
13
(w) Listing and Maintenance Requirements. The Ordinary Shares is
registered pursuant to Section 12(g) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to
have the effect of, terminating the registration of the Ordinary Shares
under the Exchange Act nor has the Company received any written
notification that the Commission is contemplating terminating such
registration. The Company has not, in the 12 months preceding the date
hereof, received written notice from any Trading Market on which the
Ordinary Shares is or has been listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements
of such market. The Company is currently in compliance with all such
listing and maintenance requirements.
(x) Application of Takeover Protections. The Company and its Board of
Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or other similar
anti takeover provision under the Company's Articles of Association (or
similar charter documents) or the laws of its state of incorporation that
is or could reasonably be expected to become applicable to the Purchasers
as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including
without limitation the Company's issuance of the Securities and the
Purchasers' ownership of the Securities.
(y) Disclosure. Except as set forth in the Disclosure Schedule and
except for terms of the Transaction Documents and the fact that the Company
is considering consummating the transactions contemplated therein, the
Company confirms that neither the Company nor any other Person acting on
its behalf has provided any of the Purchasers or their agents or counsel
with any information that constitutes or might constitute material,
non-public information. The Company understands and confirms that the
Purchasers will rely on the foregoing representations in effecting
transactions in securities of the Company. To the Company's knowledge,
neither this Agreement, nor the Disclosure Schedules to this Agreement,
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading. The
Company acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3.2 hereof.
(x) (z) No Integrated Offering. Assuming the accuracy of the
Purchasers' representations and warranties set forth in Section 3.2,
neither the Company, nor any of its affiliates, nor any Person acting on
its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under
circumstances that would cause this offering of the Securities to be
integrated with prior offerings by the Company for purposes of the
Securities Act or any applicable shareholder approval provisions,
including, without limitation, under the rules and regulations of the
Trading Market.
(aa) Solvency. Based on the financial condition of the Company as of
the Closing Date after giving effect to the receipt by the Company of the
proceeds from the sale of the Securities hereunder, the Company's assets do
not constitute unreasonably small capital to carry on its business for the
current fiscal year as now conducted and as proposed
14
to be conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the Company,
and projected capital requirements and capital availability thereof.
(bb) Form F-3 Eligibility. The Company is eligible to register the
resale of its Ordinary Shares by the Purchasers under Form F-3 promulgated
under the Securities Act.
(cc) Taxes. Except for matters that would not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect, (i) the Company and each Subsidiary has filed all necessary
federal, state and foreign income and franchise tax returns and has paid or
accrued all taxes shown as due thereon, and (ii) the Company has no
knowledge of a tax deficiency which has been asserted or threatened against
the Company or any Subsidiary.
(dd) General Solicitation. Neither the Company nor any person acting
on behalf of the Company has offered or sold any of the Shares by any form
of general solicitation or general advertising. The Company has offered the
Shares for sale only to the Purchasers and certain other "accredited
investors" within the meaning of Rule 501 under the Securities Act.
(ee) Foreign Corrupt Practices. Neither the Company, nor to the
knowledge of the Company, any agent or other person acting on behalf of the
Company, has (i) directly or indirectly, used any corrupt funds for
unlawful contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any
foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company (or
made by any person acting on its behalf of which the Company is aware)
which is in violation of law, or (iv) violated in any material respect any
provision of the Foreign Corrupt Practices Act of 1977, as amended.
(ff) Auditor. The Company's auditors are set forth on Schedule 3.1(ff)
of the Disclosure Schedule. To the Company's knowledge, such auditors are
independent auditors as required by the Securities Act.
(gg) Acknowledgment Regarding Purchasers' Purchase of Shares. The
Company acknowledges and agrees that each of the Purchasers is acting
solely in the capacity of an arm's length purchaser with respect to the
Transaction Documents and the transactions contemplated hereby. The Company
further acknowledges that no Purchaser is acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to this
Agreement and the transactions contemplated hereby.
3.2 Representations and Warranties of the Purchasers. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows:
(a) Organization; Authority. Such Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate or partnership
power and authority to enter into and to
15
consummate the transactions contemplated by the Transaction Documents and
otherwise to carry out its obligations thereunder. The execution, delivery
and performance by such Purchaser of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate or similar
action on the part of such Purchaser. Each Transaction Document to which it
is party has been duly executed by such Purchaser, and when delivered by
such Purchaser in accordance with the terms hereof, will constitute the
valid and legally binding obligation of such Purchaser, enforceable against
it in accordance with its terms, except (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions
may be limited by applicable law.
(b) Investment Intent. Such Purchaser understands that the Securities
are "restricted securities" and have not been registered under the
Securities Act or any applicable state securities law and is acquiring the
Securities as principal for its own account for investment purposes only
and not with a view to or for distributing or reselling such Securities or
any part thereof, has no present intention of distributing any of such
Securities and has no arrangement or understanding with any other persons
regarding the distribution of such Securities (this representation and
warranty not limiting such Purchaser's right to sell the Securities
pursuant to the Registration Statement or otherwise in compliance with
applicable securities laws). Such Purchaser is acquiring the Securities
hereunder in the ordinary course of its business. Such Purchaser does not
have any agreement or understanding, directly or indirectly, with any
Person to distribute any of the Securities.
(c) Purchaser Status. At the time such Purchaser was offered the
Securities, it was, at the date hereof it is, and on the Closing Date and
on each date on which it exercises any Warrants, it will be, an "accredited
investor" as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8)
under the Securities Act. Such Purchaser is not, and at the time such
Purchaser was offered the Securities, it was not, located in or organized
under the laws of the State of Israel. Such Purchaser does not currently
hold or beneficially own more than 5% of the outstanding Ordinary Shares.
(d) Experience of Such Purchaser. Such Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such investment.
Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of
such investment.
(e) General Solicitation. Such Purchaser is not purchasing the
Securities as a result of any advertisement, article, notice or other
communication regarding the Securities published in any newspaper, magazine
or similar media or broadcast over television or radio or presented at any
seminar or any other general solicitation or general advertisement.
16
(f) Purchaser Acting Individually. Such Purchaser is acting severally
as an individual and is not acting together with any other Person or other
Purchaser as a group.
(g) Certain Fees. No brokerage or finder's fees or commissions are or
will be payable by such Purchaser to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. To
the knowledge of such Purchaser, the Company shall have no obligation with
respect to any fees or with respect to any claims made by or on behalf of
other Persons for fees of a type contemplated in this Section that may be
due in connection with the transactions contemplated by this Agreement.
(h) Disclosure. Such Purchaser acknowledges and agrees that the
Company does not make nor has made any representations or warranties with
respect to the transactions contemplated hereby other than those
specifically set forth in Section 3.1.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions.
(a) Each of the Purchasers hereby acknowledges that the Securities may
only be disposed of in compliance with state and federal securities laws.
In connection with any transfer of Securities other than pursuant to an
effective registration statement or Rule 144, to the Company or to an
Affiliate of a Purchaser or in connection with a pledge as contemplated in
Section 4.1(b), the Company may require the transferor thereof to provide
to the Company an opinion of counsel selected by the transferor and
reasonably acceptable to the Company, the form and substance of such
opinion shall be reasonably satisfactory to the Company, to the effect that
such transfer does not require registration of such transferred Securities
under the Securities Act. As a condition of any such transfer, any such
transferee shall agree in writing to be bound by the terms of this
Agreement and shall have the rights of a Purchaser under this Agreement and
the Registration Rights Agreement and/or a Holder (as defined in the
Warrants) under the Warrants, as applicable..
(b) The Purchasers agree to the imprinting, so long as is required by
this Section 4.1, of a legend on any of the Securities in the following or
a substantially similar form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD OR OTHERWISE TRANSFERRED EXCEPT
(1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, OR (2) PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT
17
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS
AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A
REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN
RULE 501(a) UNDER THE SECURITIES ACT.
.
(c) The Company acknowledges and agrees that a Purchaser may from time
to time pledge pursuant to a bona fide margin agreement with a registered
broker-dealer or grant a security interest in some or all of the Securities
to a financial institution that is an "accredited investor" as defined in
Rule 501(a) under the Securities Act and who agrees to be bound by the
provisions of this Agreement and the Registration Rights Agreement and, if
required under the terms of such arrangement, such Purchaser may transfer
pledged or secured Securities to the pledgees or secured parties. Such a
pledge or transfer would not be subject to approval of the Company and no
legal opinion of legal counsel of the pledgee, secured party or pledgor
shall be required in connection therewith. Further, no notice shall be
required of such pledge. At the appropriate Purchaser's expense, the
Company will execute and deliver such reasonable documentation as a pledgee
or secured party of Securities may reasonably request in connection with a
pledge or transfer of the Securities, including, if the Securities are
subject to registration pursuant to the Registration Rights Agreement, the
preparation and filing of any required prospectus supplement under Rule
424(b)(3) under the Securities Act or other applicable provision of the
Securities Act to appropriately amend the list of Selling Stockholders
thereunder.
(d) Certificates evidencing the Shares and Warrant Shares shall not
contain any legend (including the legend set forth in Section 4.1(b)), (i)
while a registration statement (including the Registration Statement)
covering the resale of such security is effective under the Securities Act,
or (ii) if such Shares or Warrant Shares are eligible for sale under Rule
144(k), or (iii) if such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the Staff of the Commission). The Company shall
cause its counsel to issue a legal opinion to the Company's transfer agent
promptly after the Effective Date if required by the Company's transfer
agent to effect the removal of the legend hereunder. If all or any portion
of a Warrant is exercised at a time when there is an effective registration
statement to cover the resale of the Warrant Shares, such Warrant Shares
shall be issued free of all legends. The Company agrees that following the
Effective Date or at such time as such legend is no longer required under
this Section 4.1(d), it will, no later than seven (7) Trading Days
following the delivery by a Purchaser to the Company or the Company's
transfer agent of a certificate representing Shares or Warrant Shares, as
the case may be, issued with a restrictive legend (such date, the "Legend
Removal Date"), deliver or cause to be delivered to such Purchaser a
certificate representing such Securities that is free from all restrictive
and other legends; provided the provisions of either clause (i), (ii) or
clause (iii) above, as
18
applicable, are satisfied with respect to such Securities. The Company may
not make any notation on its records or give instructions to any transfer
agent of the Company that enlarge the restrictions on transfer set forth in
this Section.
(e) In addition to such Purchaser's other available remedies, the
Company shall pay to a Purchaser, as liquidated damages and not as a
penalty, for each $1,000 of Shares or Warrant Shares (based on the Closing
Price of the Ordinary Shares on the date certificate(s) representing such
Securities are submitted to the Company's transfer agent) subject to
Section 4.1(d), $5 per Trading Day (increasing to $10 per Trading Day ten
(10) Trading Days after such damages have begun to accrue) for each Trading
Day after the Legend Removal Date until such certificate is delivered to
such Purchaser; provided that such Purchaser shall have first notified the
Company in writing of such failure to comply (which notification may be, in
addition to the methods of delivery set forth in Section 5.3 hereof, by way
of sending an electronic mail to the Company: xxxx.xxxxx@xxxxxxxx.xxx and
xxxx.xxxxxxx@xxxxxxxx.xxx). Nothing herein shall limit such Purchaser's
right to pursue actual damages for the Company's failure to deliver
certificates representing any Securities as required by the Transaction
Documents, and such Purchaser shall have the right to pursue all remedies
available to it at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief. For any liquidated
damages to be paid pursuant to this Section, the Company may pay such
damages solely in the form of Ordinary Shares, the number of which shall be
determined by dividing (x) the amount of damages payable pursuant to this
Section by (y) the Closing Price of an Ordinary Share on the payment date.
(f) Each Purchaser, severally and not jointly with the other
Purchasers, agrees that the removal of the restrictive legend from
certificates representing Securities as set forth in this Section 4.1 is
predicated upon the Company's reliance that the Purchaser will sell any
Securities pursuant to either the registration requirements of the
Securities Act, including any applicable prospectus delivery requirements,
or an exemption therefrom.
4.2 Furnishing of Information. As long as any Purchaser owns Securities,
the Company covenants to timely file (or obtain extensions in respect thereof
and file within the applicable grace period) all reports required to be filed by
the Company after the date hereof pursuant to the Exchange Act. As long as any
Purchaser owns Securities, if the Company is no longer required to file reports
pursuant to the Exchange Act (or if such filings are not otherwise generally
available on the Internet free of charge), it will prepare and furnish to the
Purchasers (upon receipt of a written request) and make publicly available in
accordance with Rule 144(c) such information as is required for the Purchasers
to sell the Securities under Rule 144. The Company further covenants that it
will take such further action as any holder of Securities may reasonably
request, all to the extent required from time to time to enable such Person to
sell such Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144.
4.3 Integration. The Company shall not sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Securities in a manner that would require the registration under the
Securities Act of the sale of the Securities to the Purchasers or that would be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of the
19
Nasdaq Stock Market such that it would require shareholder approval prior to the
closing of such other transaction unless shareholder approval is obtained before
the closing of such subsequent transaction.
4.4 Securities Laws Disclosure; Publicity. Provided that the Company has
received each item required to be delivered by each Purchaser pursuant to any of
the Transaction Documents, the Company shall, by 9:00 a.m. Eastern time on the
Trading Day following the Closing Date, issue a press release or file a Current
Report on Form 6-K in each case reasonably acceptable to Xxxxx, Xxxx & Xxxxx
Investments, a division of Robeco USA, LLC ("WPG"), disclosing the material
terms of the transactions contemplated hereby. Neither the Company nor any
Purchaser shall issue any press release with respect to the transaction
contemplated hereby or otherwise make any such public statement without the
prior consent of the Company, with respect to any press release of any
Purchaser, or without the prior consent of WPG, with respect to any press
release of the Company, which consent shall not unreasonably be withheld, except
if such disclosure is required by law, in which case the disclosing party shall
promptly provide the other party with prior notice of such public statement or
communication; provided, however, that only such portions of any press release
to be issued by the Company that specifically reference the transactions
contemplated by the Transaction Documents shall be provided to WPG and be
subject to their prior consultation and approval. Notwithstanding the foregoing,
the Company shall not publicly disclose the name of any Purchaser, or include
the name of any Purchaser in any filing with the Commission or any regulatory
agency or Trading Market, without the prior written consent of WPG, except (i)
as required by federal securities law in connection with the registration
statement contemplated by the Registration Rights Agreement and (ii) to the
extent such disclosure is required by law or Trading Market regulations, in
which case the Company shall provide WPG with prior notice of such disclosure
permitted under subclause (i) or (ii).
4.5 Shareholders Rights Plan. No claim will be made or enforced by the
company or, to the knowledge of the Company, any other Person that any Purchaser
is an "Acquiring Person" under any shareholders rights plan or similar plan or
arrangement in effect on the date hereof, or that any Purchaser could be deemed
to trigger the provisions of any such plan or arrangement, by virtue of
receiving Securities under the Transaction Documents.
4.6 Use of Proceeds. The Company shall use the net proceeds from the sale
of the Securities hereunder for general corporate and strategic purposes,
including, but not limited to, in connection with acquisitions, joint ventures
and other similar transactions, and not for the satisfaction of any portion of
the Company's debt (other than payment of trade payables in the ordinary course
of the Company's business and prior practices), to redeem any Company equity or
equity equivalent securities or to settle any outstanding litigation.
4.7 Indemnification of Purchasers.
(a) Subject to the provisions of this Section, the Company will
indemnify and hold the Purchasers and their directors, officers,
shareholders, partners, employees and agents (each, a "Purchaser Party")
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including without limitation
all judgments, amounts paid in settlements, court costs and reasonable
attorneys' fees and costs of investigation ("Damages") that any such
Purchaser Party may suffer or incur as a
20
result of or relating to (A) any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement
or in the other Transaction Documents or (B) any action instituted against
(i) a Purchaser, or any of them or their respective Affiliates or (ii) a
Purchaser Party, by any shareholder of the Company who is not an Affiliate
of such Purchaser or Purchaser Party, with respect to any of the
transactions contemplated by the Transaction Documents (unless such action
is based upon a breach of such Purchaser's representation, warranties,
covenants or agreements under the Transaction Documents or any agreements
or understandings such Purchaser or a Purchaser Party may have with any
such shareholder or any violations by the Purchaser or a Purchaser Party of
state or federal securities laws or any conduct by such Purchaser or a
Purchaser Party which constitutes fraud, gross negligence, willful
misconduct or malfeasance) (clauses (A) and (B) together, "Indemnifiable
Claims").
(b) If any action shall be brought against any Purchaser Party in
respect of which indemnity may be sought pursuant to this Section, such
Purchaser Party shall promptly notify the Company in writing, and the
Company shall have the right to assume the defense thereof with counsel of
its own choosing. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Purchaser Party except to the extent that (i) the employment thereof has
been specifically authorized by the Company in writing, or (ii) the Company
has failed after a reasonable period of time to assume such defense and to
employ counsel.
(c) The Company will not be liable to any Purchaser Party under this
Agreement (i) for any settlement by an Purchaser Party effected without the
Company's prior written consent, which shall not be unreasonably withheld
or delayed; or (ii) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Party's breach
of any of the representations, warranties, covenants or agreements made by
the Purchasers in this Agreement or in the other Transaction Documents.
(d) From and after the Closing, the rights of the Purchasers under
this Section shall be the exclusive remedy thereof with respect to any
breach of the Transaction Documents and any Indemnifiable Claims.
Notwithstanding the above, the Purchasers shall be (a) entitled to seek any
available remedy of law or equity (including rescission or restitution)
with respect to fraud and/or willful misconduct, (b) entitled to seek
injunctive relief to enjoin the breach, or threatened breach, of any
provision of this Agreement, and (c) entitled to seek the equitable remedy
of specific performance in connection with this Agreement.
4.8 Reservation of Ordinary Shares. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Ordinary
Shares for the purpose of enabling the Company to issue Shares pursuant to this
Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.9 Listing of Ordinary Shares. The Company hereby agrees to use
commercially reasonable efforts to maintain the listing of the Ordinary Shares
on a Trading Market, and as soon as
21
reasonably practicable following the Closing (but not later than the earlier of
the Effective Date and the first anniversary of the Closing Date) to list all of
the Shares and Warrant Shares on such Trading Market. The Company further
agrees, if the Company applies to have the Ordinary Shares traded on any other
Trading Market, it will include in such application all of the Shares and
Warrant Shares, and will take such other action as is necessary to cause all of
the Shares and Warrant Shares to be listed on such other Trading Market as
promptly as possible. The Company will take all action commercially reasonable
and necessary to (a) continue the listing and trading of its Ordinary Shares on
a Trading Market and (b) comply in all respects with the Company's reporting,
filing and other obligations under the bylaws or rules of such Trading Market.
4.10 Equal Treatment of Purchasers. No consideration shall be offered or
paid to any Person to amend or consent to a waiver or modification of any
provision of any of the Transaction Documents unless the same consideration is
also offered to all of the parties to the Transaction Documents. For
clarification purposes, this provision constitutes a separate right granted to
each Purchaser by the Company and negotiated separately by each Purchaser, and
is intended to treat the Purchasers as a class and shall not in any way be
construed as the Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Securities or otherwise.
4.11 Participation in Future Financing. From the date hereof until the
earlier of (i) the 1st anniversary after the Closing Date, (ii) the date the
first Subsequent Financing (as defined below) closes, and (iii) the date at
which the Purchasers hold less than 50% of the Shares acquired by them
hereunder, if the Company desires to effect an offering of its Ordinary Shares
or Ordinary Shares Equivalents for an aggregate offering price of more than
$1,500,000 (a "Subsequent Financing"), the Purchasers shall have the right to
participate in (A) no less than the lesser of (x) 5.0% of such Subsequent
Financing or (y) an amount equal to $1,000,000 and (B) no more than 20.0% of
such Subsequent Financing, as allocated between the Purchasers based on each
Purchaser's proportionate amount of the Ordinary Shares issued to all Purchasers
at the Closing, as follows:
(a) At least ten (10) calendar days prior to the closing of the
Subsequent Financing, the Company shall deliver to each Purchaser a written
notice of its intention to effect a Subsequent Financing (such notice, a
"Subsequent Financing Notice"). The Subsequent Financing Notice shall
describe in reasonable detail the proposed terms of such Subsequent
Financing, the amount of proceeds intended to be raised thereunder, the
Person with whom such Subsequent Financing is proposed to be effected, and
attached to which shall be a term sheet or similar document relating
thereto. If by 5:00 p.m. (New York City time) on the tenth (10th) calendar
day after the Purchasers have received the Subsequent Financing Notice (i)
a Purchaser has notified the Company that it (or its affiliated designee)
does not elect to participate in the Subsequent Financing, or (ii) the
Purchasers who have notified the Company that their (or their affiliated
designee's) willingness to participate in the Subsequent Financing is less,
in the aggregate, than the lesser of (A) 5% of the total amount of the
Subsequent Financing or (B) an amount equal to $1,000,000, then the Company
may effect such Subsequent Financing or the remaining portion of such
Subsequent Financing, as applicable, on the terms and to the Persons set
forth in the Subsequent Financing Notice. If the Company receives no notice
from a Purchaser as of such tenth (10th) calendar day after the Purchasers
have received the Subsequent Financing Notice, such Purchaser shall be
deemed to have notified the Company that it does not elect to participate.
22
(b) Subject to the terms of this Section, each Purchaser will again
have the right of participation set forth above in this Section 4.10
(including receipt of a new Subsequent Financing Notice), if the Subsequent
Financing subject to the initial Subsequent Financing Notice is not
consummated for any reason on the terms set forth in such Subsequent
Financing Notice within ninety (90) days after the date of the initial
Subsequent Financing Notice.
(c) Notwithstanding the foregoing, this Section 4.10 shall not apply
to Subsequent Financing that is a transaction involving (a) the issuance of
Ordinary Shares or options to consultants, employees, officers or directors
of the Company pursuant to any stock or option plan duly adopted by the
Company or to the issuance of Ordinary Shares upon exercise of such options
or any Ordinary Shares Equivalents outstanding as of the date hereof, (b)
any equity securities issued pursuant to any equipment leasing arrangement
or debt financing from a bank or similar financial institution whose
primary business is lending money and not investing in securities, (c) any
equity securities issued in connection with strategic transactions
involving the Company and other entities, the primary purpose of which is
not to raise capital, including (A) joint ventures, manufacturing,
marketing, license or distribution arrangements or (B) technology transfer
or development arrangements (provided that the primary purpose of such
transaction is not the raising of capital), (d) any securities issued for
consideration other than cash pursuant to a merger, consolidation,
acquisition, consolidation, sale or disposition of all or substantially all
of the Company's assets or similar business combination, (e) any securities
issued in connection with the settlement of pending or threatened
litigation or similar proceeding, (f) Ordinary Shares issued in conjunction
with any stock split, stock dividend or recapitalization of the Company,
(g) any securities issuable upon the exercise or conversion of, or pursuant
to the anti-dilution provisions contained within, any agreement, option,
restricted stock awards, preferred stock, promissory note, convertible
promissory note or warrants outstanding on the date hereof (but not to the
extent amended hereafter), (h) any Ordinary Shares issuable under the
Transaction Documents (including those issued pursuant to the anti-dilution
provisions contained therein), (i) Ordinary Shares issued to vendors in
exchange for services rendered to the Company, and (j) issuance of
securities in connection with underwritten public offerings of the
Company's securities.
4.12 Delivery of Securities After Closing. The Company shall deliver, or
cause to be delivered, the respective Shares and Warrants purchased by each
Purchaser to such Purchaser within three (3) Trading Days of the Closing Date.
4.13 Non-Public Information. Subject to Closing, except as may be required
to comply with the terms and conditions of this Agreement, the Company covenants
and agrees that, to its knowledge, neither it nor any other Person acting on its
behalf will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto such Purchaser shall have executed a written agreement regarding
the confidentiality and use of such information. The Company understands and
confirms that each Purchaser shall be relying on the foregoing covenant in
effecting transactions in securities of the Company.
23
ARTICLE V.
MISCELLANEOUS
5.1 Fees and Expenses. Each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of the Transaction Documents, except that the Company
shall pay, against invoice, up to an aggregate of $20,000 for the fees and
expenses of TRP actually incurred in connection with the transactions
contemplated hereby. The Company shall pay all stamp and other taxes and duties
lawfully imposed on the sale of the Securities.
5.2 Entire Agreement. The Transaction Documents, together with the exhibits
and schedules thereto, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
5.3 Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the next Trading Day after the
date of transmission, if such notice or communication is delivered via facsimile
with confirmation of receipt at the facsimile number set forth on the signature
pages attached hereto prior to 5:00 p.m. (New York City time) on a Trading Day,
(b) two Trading Days after the date of transmission, if such notice or
communication is delivered via facsimile with confirmation of receipt at the
facsimile number set forth on the signature pages attached hereto on a day that
is not a Trading Day or later than 5:00 p.m. (New York City time) on any Trading
Day, (c) the second Trading Day following the date of mailing (fifth Trading Day
if sent internationally), if sent by a nationally recognized overnight courier
service in the United States, or (d) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached hereto or
at such other address as such party may designate by seven calendar days'
advance written notice to the other party.
5.4 Amendments; Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and the Majority Purchasers. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
5.5 Construction. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party.
5.6 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and permitted assigns.
The Company may not
24
assign this Agreement or any rights or obligations hereunder without the prior
written consent of each Purchaser. Any Purchaser may assign any or all of its
rights under this Agreement, subject to the applicable securities law, to any
Person to whom such Purchaser assigns or transfers any Securities, provided such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof that apply to the "Purchasers."
5.7 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.6.
5.8 Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. The parties hereby waive all rights to a trial by jury. If
either party shall commence an action or proceeding to enforce any provisions of
this Agreement, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its reasonable attorneys fees and expenses and
other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.
5.9 Survival. The representations and warranties herein shall survive the
Closing and delivery of the Shares and Warrant Shares until the earlier of (i)
the tenth anniversary of the Closing Date and (ii) the date on which each of the
Purchasers no longer holds any of the Shares or the Warrant Shares, if any.
5.10 Execution. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
5.11 Severability. If any provision of this Agreement is held to be invalid
or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions
25
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
5.12 Replacement of Securities. If any certificate or instrument evidencing
any Securities is mutilated, lost, stolen or destroyed, the Company shall issue
or cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity. The applicants for a new certificate or instrument under such
circumstances shall also pay any reasonable third-party costs associated with
the issuance of such replacement Securities.
5.13 Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Purchasers and the Company will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
5.14 Payment Set Aside. To the extent that the Company makes a payment or
payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
5.15 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in any
Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchasers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Document. Except
as otherwise set forth herein, each Purchaser shall be entitled to independently
protect and enforce its rights, including without limitation, the rights arising
out of this Agreement or out of the other Transaction Documents, and it shall
not be necessary for any other Purchaser to be joined as an additional party in
any proceeding for such purpose.
5.16 Liquidated Damages. The Company's obligations to pay any partial
liquidated damages or other amounts owing under the Transaction Documents is a
continuing obligation of the Company and shall not terminate until all unpaid
partial liquidated damages and other amounts
26
have been paid notwithstanding the fact that the instrument or security pursuant
to which such partial liquidated damages or other amounts are due and payable
shall have been canceled.
5.17 Further Assurances. From and after the date of this Agreement, upon
the request of any Purchaser or the Company, each of the Company and the
Purchasers shall execute and deliver such instrument, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement, the
Securities and the Registration Rights Agreement.
5.18 Rescission and Withdrawal Right. Notwithstanding anything to the
contrary contained in (and without limiting any similar provisions of) the
Transaction Documents, whenever any Purchaser exercises a right, election,
demand or option under a Transaction Document and the Company does not timely
perform its related obligations within the periods therein provided, then such
Purchaser may rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any relevant notice, demand or election in whole
or in part without prejudice to its future actions and rights; provided such
notice was delivered to the Company prior to the Company's cure of such default
or untimely performance.
(Signature Pages Follow)
27
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
ATTUNITY LTD.
By: /s/Xxx Xxxxxx /s/Xxxx Xxxxx
-------------------------------
Name: Xxx Xxxxxx Xxxx Xxxxx
Title: CEO CFO
Address for Notice:
-------------------
Attunity Ltd.
Einstein Building
Tirat Hacarmel, Israel
Attention: CEO
Facsimile: [(000 0) 000-0000]
With a copy to (which shall not constitute notice):
Attunity Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: CFO
Facsimile: [(000) 000-0000]
Goldfarb, Levy, Eran & Co.
Europe-Israel Tower
0 Xxxxxxxx Xxxxxx
Xxx Xxxx 00000, Xxxxxx
Attention: Xxxx Xxxx, Adv.
Facsimile: 00-000-0000
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOR PURCHASERS FOLLOW]
28
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
Name of Investing Entity: WPG Select Technology QP
Signature of Authorized Signatory of
Investing entity: /s/Xxxxxx Xxxx /s/Xxxxxxxx Xxxxx Xxxxxx
----------------------------------------
Name of Authorized Signatory: Xxxxxx Xxxx/Xxx Xxxxxx
----------------------
Title of Authorized Signatory: Head of Equity/Managing Director
--------------------------------
Address for Notice of Investing Entity:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: US$705,476.75
Shares: 256,537
Warrant Shares: 102,615
EIN Number: 00-0000000
----------
[SIGNATURE PAGES CONTINUE]
29
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
Name of Investing Entity: WPG Select Technology Overseas
Signature of Authorized Signatory of
Investing entity: /s/Xxxxxx Xxxx /s/Xxxxxxxx Xxxxx Xxxxxx
----------------------------------------
Name of Authorized Signatory: Xxxxxx Xxxx/Xxx Xxxxxx
----------------------
Title of Authorized Signatory: Head of Equity/Managing Director
--------------------------------
Address for Notice of Investing Entity:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: US$417,051.25
Shares: 151,655
Warrant Shares: 60,662
EIN Number: 00-0000000
----------
[SIGNATURE PAGES CONTINUE]
30
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
Signature of Authorized Signatory of
Investing entity: /s/Xxxxxx Xxxx /s/Xxxxxxxx Xxxxx Xxxxxx
----------------------------------------
Name of Authorized Signatory: Xxxxxx Xxxx/Xxx Xxxxxx
----------------------
Title of Authorized Signatory: Head of Equity/Managing Director
--------------------------------
Address for Notice of Investing Entity:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: US$736,692
Shares: 267,888
Warrant Shares: 107,155
EIN Number: 00-0000000
----------
[SIGNATURE PAGES CONTINUE]
31
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
Name of Investing Entity: WPG Select Technology Fund LP
Signature of Authorized Signatory of
Investing entity: /s/Xxxxxx Xxxx /s/Xxxxxxxx Xxxxx Xxxxxx
----------------------------------------
Name of Authorized Signatory: Xxxxxx Xxxx/Xxx Xxxxxx
----------------------
Title of Authorized Signatory: Head of Equity/Managing Director
--------------------------------
Address for Notice of Investing Entity:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: US$140,780.75
Shares: 51,193
Warrant Shares: 20,477
EIN Number: 00-0000000
----------
32
