EXHIBIT 4.17
EXECUTION VERSION
NEITHER THE SECURITIES REPRESENTED BY THIS WARRANT NOR THE SECURITIES INTO WHICH
THIS WARRANT IS EXERCISABLE HAVE 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 EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT 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 REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY
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.
No. _______
ORDINARY SHARE PURCHASE WARRANT
To Purchase [ ] Ordinary Shares of
ATTUNITY LTD.
THIS ORDINARY SHARE PURCHASE WARRANT (this "Warrant") CERTIFIES that, for
value received, [ ]the "Holder"), is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth, at any time or
from time to time on or after the date of issuance of this Warrant (such date,
the "Initial Exercise Date") and on or prior to 5:00 p.m., New York time, on the
third anniversary of the Closing Date, i.e., on January 23, 2008 (the
"Termination Date") but not thereafter, to subscribe for and purchase from
Attunity Ltd., a company incorporated in the State of Israel (the "Company"), up
to 102,615 (the "Warrant Shares") Ordinary Shares, par value NIS 0.10 per share,
of the Company (the "Ordinary Shares"). The purchase price of one Ordinary Share
(the "Exercise Price") under this Warrant shall be $2.75, subject to adjustment
hereunder. The Exercise Price and the number of Warrant Shares for which the
Warrant is exercisable shall be subject to adjustment as provided herein.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in that certain Securities Purchase Agreement (the "Purchase
Agreement"), dated as of January 24, 2005, among the Company and the purchasers
signatory thereto.
1. Title to Warrant. Prior to the Termination Date and subject to
compliance with applicable laws and Section 7 of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part, at the office or
agency of the Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment
Form annexed hereto properly endorsed. The transferee shall, as a condition to
such transfer, sign and deliver to the Company an investment letter in form and
substance reasonably satisfactory to the Company.
2. Authorization of Shares. The Company covenants that all Warrant Shares
which may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant
in accordance with the terms hereof, be duly authorized, validly issued, fully
paid and nonassessable and free from all Liens imposed by the Company other than
taxes in respect of any transfer occurring contemporaneously with such issue and
restrictions arising under applicable securities laws.
3. Exercise of Warrant.
(a) Exercise of the purchase rights represented by this Warrant may be
made at any time or times on or after the Initial Exercise Date and on or
before the Termination Date by surrender of this Warrant and delivery of a
fully completed and duly executed copy of the Notice of Exercise Form
annexed hereto to the Company at its principal office (or such other office
or agency of the Company as it may designate by notice in writing to the
registered Holder at the address of such Holder appearing on the books of
the Company) along with payment of the aggregate Exercise Price of the
Warrant Shares thereby purchased by wire transfer or cashier's check drawn
on a United States bank. Certificates for Warrant Shares purchased
hereunder shall be delivered to the Holder within seven (7) Trading Days
from the delivery to the Company of the Notice of Exercise Form, surrender
of this Warrant and payment of the aggregate Exercise Price as set forth
above ("Warrant Share Delivery Date"). This Warrant shall be deemed to have
been exercised immediately prior to the close of business on the date the
Notice of Exercise Form, this Warrant and the aggregate Exercise Price is
delivered to the Company. The Warrant Shares shall be deemed to have been
issued, and Holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the date the Warrant has been exercised by payment to the
Company of the Exercise Price and all taxes required to be paid by the
Holder, if any, pursuant to Section 5 prior to the issuance of such shares,
have been paid. If the Company fails to deliver to the Holder a certificate
or certificates representing the Warrant Shares pursuant to this Section
3(a) by the seventh (7th) Trading Day following the Warrant Share Delivery
Date, then the Holder will have the right to rescind such exercise upon
written notice to the Company; provided such notice was delivered to the
Company prior to the Company's cure of such untimely performance. In
addition to any other rights available to the Holder, if the Company fails
to deliver to the Holder a certificate or certificates representing the
Warrant Shares pursuant to an exercise by the seventh (7th) Trading Day
after the Warrant Share Delivery Date, and if after such day the Holder is
required by its broker to purchase in a bona fide open market transaction
shares of Common Stock to deliver in satisfaction of a sale by the Holder
of the Warrant Shares which the Holder anticipated receiving upon such
exercise (a "Buy-In"), then the Company shall (1) pay to the Holder the
amount by which (x) the Holder's total purchase price (including customary
brokerage commissions, if any) for the Ordinary Shares so purchased exceeds
(y) the amount obtained by multiplying (A) the
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number of Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue, times (B) the price at
which the sell order giving rise to such purchase obligation was executed,
and (2) at the option of the Holder, either reinstate the portion of the
Warrant and equivalent number of Warrant Shares for which such exercise was
not honored or deliver to the Holder the number of Ordinary Shares that
would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder; provided that for any such payment, the
Company may pay it solely in the form of Ordinary Shares, the number of
which shall be determined by dividing (x) the amount to be paid pursuant to
this Section by (y) the Closing Price of an Ordinary Share on the payment
date. For example, if the Holder purchases in a Buy-In Ordinary Shares
having a total purchase price of $11,000 to cover the sale of Ordinary
Shares with an aggregate sale price giving rise to such purchase obligation
of $10,000, under clause (1) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000 (or the number of
Ordinary Shares equal to $1,000 divided by the Closing Price of an Ordinary
Share on the payment date). The Holder shall provide the Company written
notice indicating the amounts payable to the Holder in respect of the
Buy-In, together with applicable confirmations and other evidence
reasonably requested by the Company. Nothing herein shall limit a Xxxxxx's
right to pursue any other remedies available to it hereunder, at law or in
equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company's failure to timely
deliver certificates representing Ordinary Shares upon exercise of the
Warrant as required pursuant to the terms hereof.
(b) If this Warrant shall have been exercised in part, the Company
shall, at the time of delivery of the certificate or certificates
representing Warrant Shares, deliver to Holder a new Warrant evidencing the
rights of Holder to purchase the unpurchased Warrant Shares called for by
this Warrant, which new Warrant shall in all other respects be identical
with this Warrant.
(c) If at any time after one year from the Initial Exercise Date there
is no effective Registration Statement registering the resale of the
Warrant Shares by the Holder (other than due to (i) the lapse of the
Effectiveness Period (as defined in the Registration Rights Agreement) or
(ii) a temporary suspension of not more than five (5) Trading Days), this
Warrant may also be exercised at such time by means of a "cashless
exercise" in which the Holder shall be entitled to receive a certificate
for the number of Warrant Shares equal to the quotient obtained by dividing
[(A-B) (X)] by (A), where:
(A) = the Closing Price on the Trading Day immediately preceding
the date of such election;
(B) = the Exercise Price of this Warrant, as adjusted as of the
date of such election; and
(X) = the number of Warrant Shares issuable upon exercise of this
Warrant in accordance with the terms of this Warrant by means of
a cash exercise rather than a cashless exercise.
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(d) Notwithstanding anything to the contrary set forth in subsection
(c) above, the Holder may not utilize the "cashless exercise" method of
payment of the Exercise Price if, on the date of exercise hereof, a
Registration Statement for the resale of the Warrant Shares has been filed
and declared effective and maintained effective for at least fifteen (15)
calendar days in the aggregate, but thereafter has ceased to be effective
for a period of time which is not more than either (x) twenty-five (25)
Trading Days in the aggregate during the year (defined as a period of 365
days commencing on the date a Registration Statement is first effective) in
which such date of exercise occurs or (y) fifteen (15) consecutive Trading
Days immediately prior to such date of exercise.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares
shall be made without charge to the Holder for any issue or transfer tax or
other incidental expense in respect of the issuance of such certificate, all of
which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event certificates for
Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder; and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it
for any transfer tax incidental thereto. Notwithstanding anything to the
contrary hereunder, the Holder shall be responsible for income and gift taxes
due under federal, state or other law, if any such tax is due.
6. Closing of Books. The Company will not close its stockholder books or
records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
7. Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities laws and the
conditions set forth in Sections 1 and 7(e) hereof and to the provisions of
Section 4.1 of the Purchase Agreement, this Warrant and all rights
hereunder are transferable, in whole or in part, upon surrender of this
Warrant at the principal office of the Company, together with a written
assignment of this Warrant substantially in the form attached hereto fully
completed and duly executed by the Holder and the assignee (or their
respective agent or attorney) and funds sufficient to pay any transfer
taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of assignment,
and shall issue to the assignor a new Warrant evidencing the portion of
this Warrant not so assigned, and this Warrant shall promptly be cancelled.
A Warrant, if properly assigned,
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may be exercised by a new holder for the purchase of Warrant Shares without
having a new Warrant issued.
(b) This Warrant may be divided or combined with other Warrants upon
presentation hereof at the aforesaid office of the Company, together with a
written notice specifying the names and denominations in which new Warrants
are to be issued, signed by the Holder or its agent or attorney. Subject to
compliance with Section 7(a), as to any transfer which may be involved in
such division or combination, the Company shall execute and deliver a new
Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at its own expense
(other than transfer taxes) the new Warrant or Warrants under this Section
7.
(d) The Company agrees to maintain, at its aforesaid office, books for
the registration and the registration of transfer of the Warrants.
(e) If, at the time of the surrender of this Warrant or the Warrant
Shares in connection with any transfer of this Warrant or the Warrant
Shares, as applicable, the transfer of this Warrant shall not be registered
pursuant to an effective registration statement under the Securities Act
and under applicable state securities or blue sky laws, the Company may
require, as a condition of allowing such transfer (i) that the Holder or
transferee of this Warrant or Warrant Shares, as the case may be, furnish
to the Company an executed copy of the Assignment Form attached hereto and
a written opinion of counsel (which opinion shall be reasonably acceptable
to the Company as to form, substance and scope) to the effect that such
transfer may be made without registration under the Securities Act and
under applicable state securities or blue sky laws, (ii) that the Holder or
transferee execute and deliver to the Company an investment letter in form
and substance acceptable to the Company and (iii) that the transferee be an
"accredited investor" as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7),
or (a)(8) promulgated under the Securities Act or a qualified institutional
buyer as defined in Rule 144A(a) under the Securities Act.
8. No Rights as Shareholder until Exercise. This Warrant does not entitle
the Holder to any voting rights or other rights as a shareholder of the Company
prior to the exercise hereof and the payment of the Exercise Price in accordance
with the terms hereof (or exercise via cashless exercise).
9. Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants
that upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant or any stock
certificate relating to the Warrant Shares, and in case of loss, theft or
destruction, of an indemnity agreement or security reasonably satisfactory to it
in form and amount, or, if mutilated, upon surrender and cancellation of such
Warrant or stock certificate, the Company will make and deliver a new Warrant or
stock
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certificate of like tenor and dated as of such cancellation, in lieu of such
Warrant or stock certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday, Sunday or a legal holiday, then such action may be taken or
such right may be exercised on the next succeeding day not a Saturday, Sunday or
legal holiday.
11. Adjustments of Exercise Price and Number of Warrant Shares; Stock
Splits, etc. The number and kind of securities purchasable upon the exercise of
this Warrant and the Exercise Price shall be subject to adjustment from time to
time upon the happening of any of the following. In case the Company shall (a)
pay a dividend in Ordinary Shares or Ordinary Shares Equivalents or make a
distribution in Ordinary Shares or Ordinary Shares Equivalents to holders of its
outstanding Ordinary Shares, (b) subdivide its outstanding Ordinary Shares into
a greater number of shares, (c) combine its outstanding Ordinary Shares into a
smaller number of Ordinary Shares, or (d) issue any shares of its capital stock
in a reclassification of the Ordinary Shares, then the number of Warrant Shares
purchasable upon exercise of this Warrant immediately prior thereto shall be
adjusted so that the Holder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which it would have owned or
have been entitled to receive had such Warrant been exercised in advance
thereof. Upon each such adjustment of the kind and number of Warrant Shares or
other securities of the Company which are purchasable hereunder, the Holder
shall thereafter be entitled to purchase the number of Warrant Shares or other
securities resulting from such adjustment at an Exercise Price per Warrant Share
or other security obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant Shares purchasable
pursuant hereto immediately prior to such adjustment and dividing by the number
of Warrant Shares or other securities of the Company that are purchasable
pursuant hereto immediately thereafter. An adjustment made pursuant to this
paragraph shall become effective immediately after the effective date of such
event retroactive to the record date, if any, for such event.
12. Reorganization, Reclassification, Merger, Consolidation or Disposition
of Assets. In case the Company shall reorganize its capital, reclassify its
capital stock, consolidate or merge with or into another corporation (where the
Company is not the surviving corporation or where there is a change in or
distribution with respect to the Ordinary Shares of the Company not covered by
Section 11 hereof), or sell, transfer or otherwise dispose of its assets or
business that generated at least 50% of the revenues of the Company, on a
consolidated basis, immediately prior to such sale or disposition, to another
corporation and, pursuant to the terms of such reorganization, reclassification,
merger, consolidation or disposition of assets, shares of common stock of the
successor or acquiring corporation, or any cash, shares of stock or other
securities or property of any nature whatsoever (including warrants or other
subscription or purchase rights) in addition to or in lieu of common stock of
the successor or acquiring corporation ("Other Property"), are to be received by
or distributed to the holders of Ordinary Shares of the Company, then the Holder
shall have the right thereafter to receive, upon exercise of this Warrant, the
number of Ordinary Shares of the successor or acquiring corporation or of the
Company, if it is the surviving corporation, and Other Property receivable upon
or as a result of such reorganization, reclassification, merger, consolidation
or disposition of assets by a
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Holder of the number of Ordinary Shares for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of Warrant Shares
for which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 12. For purposes of
this Section 12, "common stock of the successor or acquiring corporation" shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 12 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
13. Automatic Conversion; Call Provision.
(a) If as of the Termination Date, this Warrant has not been
fully exercised, then as of such date this Warrant shall be
automatically converted, in full, as a "cashless exercise" in
accordance with Section 1(a) above, without any action or notice by
the Registered Holder.
(b) Notwithstanding anything to the contrary hereunder, in the
event that the Closing Price of the Ordinary Shares exceeds $4.70
(appropriately adjusted for any stock split, recerese stock split,
stock dividend or other reclassification or combination of the
Ordinary Shares occurring after the date hereof) for twenty (20)
consecutive Trading Days, then the Company shall thereafter have the
right, upon prior written notice to the Holder (or transferee(s)
thereof), to demand the exercise of all, but not less than all, of the
then outstanding Warrants in accordance with the terms hereunder. If
the Holder (or transferee(s) thereof) does not exercise all of the
Warrants within thirty (30) Trading Days following the Company's
notice (the "Notice Period"), which exercise may be at any time and
from time to time during the Notice Period, then any outstanding
Warrants not exercised prior to the end of the Notice Period shall
become void and canceled, without the requirement of any further
action by the Holder or the Company (including surrender of the
Warrants).
14. Notice of Adjustment. Whenever the number of Warrant Shares or number
or kind of securities or other property purchasable upon the exercise of this
Warrant or the Exercise Price is adjusted, as herein provided, the Company shall
give notice thereof to the Holder, which notice shall state the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and other
securities or property) after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.
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15. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its
Ordinary Shares for the purpose of entitling them to receive a
dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any
class or any other securities or property, or to receive any other
right, or
(b) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
assets of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder at
least seven (7) days' prior written notice of (i) a record date that was fixed
for such dividend, distribution or right or for determining rights to vote in
respect of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, liquidation or winding up, and (ii) in the case of
any such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up the date when the
same shall or is expected to take place. Such notice in accordance with the
foregoing clause also shall specify (i) the date on which any such record is to
be taken for the purpose of such dividend, distribution or right, the date on
which the holders of Ordinary Shares shall be entitled to any such dividend,
distribution or right, and the amount and character thereof, and (ii) the date
on which any such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up is expected to
take place and the time, if any such time is to be fixed, as of which the
holders of Ordinary Shares shall be entitled to exchange their Ordinary Shares
for securities or other property deliverable upon such disposition, dissolution,
liquidation or winding up. Each such written notice shall be sufficiently given
if addressed to Holder at the last address of Xxxxxx appearing on the books of
the Company and delivered in accordance with Section 17(d).
16. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued
Ordinary Shares a sufficient number of shares to provide for the issuance of the
Warrant Shares upon the exercise of any purchase rights under this Warrant. The
Company further covenants that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon
which the Ordinary Shares may be listed.
Except and to the extent as waived or consented to by the Holder, the Company
shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or
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any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such termsand in the taking of all such actions as
may be necessary or appropriate to protect the rights of Holder as set forth in
this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any Warrant Shares
above the amount payable therefor upon such exercise immediately prior to such
increase in par value(b) take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares upon the exercise of this Warrant, and (c) use
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
17. Miscellaneous.
(a) Jurisdiction. All questions concerning the construction,
validity, enforcement and interpretation of this Warrant shall be
determined in accordance with the provisions of the Purchase
Agreement.
(b) Restrictions. The Holder acknowledges that the Warrant Shares
acquired upon the exercise of this Warrant, if not registered, will
have restrictions upon resale imposed by securities laws. The Holder
acknowledges by acceptance of the Warrant that (a) it has acquired
this Warrant for investment and not with a view to distribution; (b)
it has the capacity to protect its own interests in connection with
the transaction; and (c) it is an "accredited investor" as that term
is defined in Regulation D promulgated under the Securities Act.
(c) Nonwaiver and Expenses. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder or the
Company shall operate as a waiver of such right or otherwise prejudice
Holder's or Company's rights, powers or remedies, notwithstanding all
rights hereunder terminate on the Termination Date. If the Company
willfully and knowingly fails to comply with any provision of this
Warrant, which results in any material damages to the Holder, the
Company shall pay to Holder such amounts as shall be sufficient to
cover any costs and expenses including, but not limited to, reasonable
attorneys' fees and expenses, including those of appellate
proceedings, incurred by Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase
Agreement.
(e) Limitation of Liability. No provision hereof (except for
Section 13), in the absence of any affirmative action by Holder to
exercise this Warrant or purchase Warrant Shares, and no enumeration
herein of the rights or privileges of Holder, shall give rise to any
liability of Holder for the purchase price of any Ordinary Shares or
as a shareholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
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(f) Remedies. Each of the Holder and the Company, in addition to
being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its
rights under this Warrant. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of
a breach by it of the provisions of this Warrant and hereby agrees to
waive the defense in any action for specific performance that a remedy
at law would be adequate.
(g) Successors and Assigns. Subject to applicable securities laws
and Section 7 hereof, this Warrant and the rights and obligations
evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of
Holder. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant and shall be
enforceable by any such Holder or holder of Warrant Shares.
(h) Amendment. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and
the Holder.
(i) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant shall
be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(j) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officer thereunto duly authorized.
Dated: January 24, 2005
ATTUNITY LTD.
By: /s/Xxx Xxxxxx /s/Xxxx Xxxxx
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Name: Xxx Xxxxxx Xxxx Xxxxx
Title: CEO CFO
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NOTICE OF EXERCISE
To: Attunity Ltd.
(1) The undersigned, (the holder of the attached Warrant) hereby
irrevocably elects to purchase ________ Warrant Shares of the Company pursuant
to the terms of the attached Warrant, and tenders herewith payment of the
exercise price in full, together with all applicable transfer taxes, if any, in
the aggregate amount of $_________.
(2) Payment is in the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] the cancellation of such number of Warrant Shares as is necessary,
in accordance with the formula set forth in subsection 3(c), to
exercise this Warrant with respect to the maximum number of Warrant
Shares purchasable pursuant to the cashless exercise procedure set
forth in subsection 3(c). [Note: You may check this box only if you
are entitled to "cashless exercise" in accordance with the terms of
the Warrant]
(3) Please issue a certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name as is specified
below:
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The Warrant Shares shall be delivered to the following address:
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(4) The undersigned hereby confirms the representations and warranties set
forth in Section 3.2 of that certain Securities Purchase Agreement dated as of
January __, 2005.
[ ] (check if applicable): Please issue a new Warrant for the unexercised
portion of the attached Warrant in the name of the undersigned.
[PURCHASER]
By: ______________________________
Name:
Title:
Dated: ________________________
Federal Tax ID or Social Security No.:
_________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________________ (the "Assignor") hereby sells,
assigns and transfers all of the rights of the undersigned Assignor under the
attached Warrant with respect to the number of Ordinary Shares of Attunity Ltd.
(the "Company") covered thereby set forth below, to the following "Assignee"
and, in connection with such transfer, represents and warrants to the Company
that the transfer is otherwise in compliance with Section 7(e) of the Warrant:
Name of Assignee and Federal Tax Address & Fax Number No. of Shares
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ID or Social Security No.
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Dated:_________________________ Signature:
_________________________
Witness:
_________________________
ASSIGNEE ACKNOWLEDGEMENT
The undersigned Assignee acknowledges that it has reviewed the attached Warrant
and by its signature below it hereby represents and warrants that it is an
"accredited investor" as defined in Rule 501(a) of Regulation D promulgated
under the Securities Act of 1933, as amended, and agrees to be bound by the
terms and conditions of the attached Warrant as of the date hereof.
By:
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Its:
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Address:
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Fax:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
