EXHIBIT 4.16
Execution Version
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made and entered
into as of January 24, 2005, by and among Attunity Ltd., an Israeli company (the
"Company"), and each of the purchasers signatory hereto (each such purchaser, a
"Purchaser" and collectively, the "Purchasers").
This Agreement is made pursuant to the Securities Purchase Agreement, dated
as of January 24, 2005, by and among the Company and the Purchasers (the
"Purchase Agreement").
The Company and the Purchasers intending to be legally bound, hereby agree
as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
"Advice" shall have the meaning set forth in Section 6(c).
"best efforts" shall mean diligent attempts to carry out an
obligation.
"Effectiveness Date" means, with respect to the Registration Statement
required to be filed hereunder, the earlier of (a) the day ninety (90)
calendar days following the date hereof and (b) the fifth Trading Day
following the date on which the Company is notified by the Commission that
such Registration Statement will not be reviewed or is no longer subject to
further review and comments; provided, however, that if a Holder fails to
comply with the provisions of Section 3(k), then, as to such Holder only,
the Effectiveness Date with respect to such Holder's Registrable Securities
only shall be extended until thirty (30) days following the date of receipt
by the Company of such required information. "Effectiveness Period" shall
have the meaning set forth in Section 2(a).
"Event" shall have the meaning set forth in Section 2(b).
"Event Date" shall have the meaning set forth in Section 2(b).
"Filing Date" means, with respect to the Registration Statement
required to be filed hereunder, the day thirty (30) calendar days following
the date hereof provided, however, that if a Holder fails to comply with
the provisions of Section 3(k), then the Filing Date with respect to such
Holder's Registrable Securities only shall be extended until 30 calendar
days following the date of receipt by the Company of such required
information.
"Holder" or "Holders" means the holder or holders, as the case may be,
from time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in Section 5(c).
"Indemnifying Party" shall have the meaning set forth in Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding,
such as a deposition).
"Prospectus" means the prospectus included in the applicable
Registration Statement (including, without limitation, a prospectus that
includes any information previously omitted from a prospectus filed as part
of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration
Statement, and all other amendments and supplements to such Prospectus,
including post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such Prospectus.
"Registrable Securities" means all of the Shares and the Warrant
Shares, together with any Ordinary Shares issued or issuable upon any stock
split, dividend or other distribution, recapitalization or similar event
with respect to the foregoing, provided, that, a security shall cease to be
a Registrable Security upon sale pursuant to a Registration Statement or
Rule 144 under the Securities Act.
"Registration Statement" means a registration statement required to be
filed hereunder, including (in each case) the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre and
post effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"Rule 415" means Rule 415 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 purpose and effect as such Rule.
"Rule 424" means Rule 424 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 purpose and effect as such Rule.
"Shares" means the Ordinary Shares to be issued pursuant to the
Purchase Agreement.
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"Warrant Shares" means the Ordinary Shares issuable upon exercise of
the Warrants purchased pursuant to the Purchase Agreement.
2. Registration.
(a) On or prior to the applicable Filing Date, the Company shall prepare
and file with the Commission a Registration Statement covering the resale of all
of the Registrable Securities not yet registered that are held by Holders that
have complied with the provisions of Section 3(k) prior to such date for an
offering to be made on a continuous basis pursuant to Rule 415. Such
Registration Statement required hereunder shall be on Form F-3 (except if the
Company is not then eligible to register for resale the Registrable Securities
on Form F-3, in which case such Registration Statement shall be on another
appropriate form herewith) and shall contain (except if otherwise directed by
the Holders) the "Plan of Distribution" attached hereto as Annex A. Subject to
the terms of this Agreement, the Company shall use its reasonable best efforts
to cause such Registration Statement to be declared effective under the
Securities Act as promptly as possible after the filing thereof, but in any
event not later than the applicable Effectiveness Date, and shall use, subject
to Section 6(d), its best efforts to keep such Registration Statement
continuously effective under the Securities Act until the date when all
Registrable Securities covered by such Registration Statement have been sold or
may be sold without volume restrictions pursuant to Rule 144(k) as determined by
the counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company's transfer agent and the affected
Holders (the "Effectiveness Period"). Each Holder acknowledges and agrees that
the Company shall be permitted to exclude such Holder's Registrable Securities
from a Registration Statement if such Holder fails to timely comply with the
Company's request for information pursuant to Section 3(k); provided if such
Holder provides such information prior to the filing of such Registration
Statement the Company shall use commercially reasonable efforts to include such
Registrable Securities on such Registration Statement; provided further that
this provision does not otherwise waive the Company's obligation to register
such Registrable Securities pursuant to the terms hereunder upon such Holder
providing the Company with the required information.
(b) If: (i) a Registration Statement is not filed on or prior to the
applicable Filing Date (For the avoidance of doubt, if the Company files a
Registration Statement without affording the Holder or Holders referenced in
such Registration Statement the opportunity to review and comment on the same as
required by Section 3(a), the Company shall not be deemed to have satisfied this
clause (i)), or (ii) the Company fails to file with the Commission a request for
acceleration in accordance with Rule 461 promulgated under the Securities Act,
within no more than five (5) Trading Days of the date that the Company is
notified (orally or in writing, whichever is earlier) by the Commission that a
Registration Statement will not be "reviewed," or is not subject to further
review, or (iii) prior to the date when a Registration Statement is first
declared effective by the Commission, the Company fails to file a pre-effective
amendment and otherwise respond in writing to comments made by the Commission in
respect of such Registration Statement within thirty (30) calendar days after
the receipt of comments by or notice from the Commission that such amendment is
required in order for such Registration Statement to be declared effective, or
(iv) a Registration Statement filed or required to be filed hereunder is not
declared effective by the Commission on or before the applicable Effectiveness
Date, or (v) after a Registration Statement is first declared effective by the
Commission, it ceases for any
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reason to remain continuously effective as to all Shares for which it is
required to be effective, or the Holders are not permitted to utilize a
Prospectus therein to resell such Shares, for in any such case fifteen (15)
consecutive Trading Days but no more than an aggregate of twenty-five (25)
Trading Days during any twelve (12) month period (which need not be consecutive
Trading Days) provided that any days during which a Registration Statement
ceases to be effective (x) due to the filing of a post-effective amendment
thereto by the Company at the request of the Holders in order to amend the Plan
of Distribution (as provided for in Section 2(a)) or (y) that are prior to the
day ninety (90) calendar days following the date hereof, shall not be counted
towards such fifteen (15) or twenty-five (25) Trading Day periods provided the
Company uses commercially reasonable efforts to cause such post-effective
amendment to be declared effective (any such failure or breach being referred to
as an "Event," and for purposes of clause (i) or (iv) the date on which such
Event occurs, or for purposes of clause (ii) the date on which such five (5)
Trading Day period is exceeded, or for purposes of clause (iii) the date which
such thirty (30) calendar days is exceeded, or for purposes of clause (v) the
date on which such fifteen (15) or twenty-five (25) Trading Day period, as
applicable, is exceeded being referred to as "Event Date"), then in addition to
any other rights the Holders may have hereunder or under applicable law: on each
such Event Date the Company shall pay to each Holder an amount, as liquidated
damages and not as a penalty, equal to two percent (2.0%) of the aggregate
purchase price paid by such Holder pursuant to the Purchase Agreement for any
Shares then held by such Holder. If the Company fails to pay any liquidated
damages pursuant to this Section 2(b) in full within seven (7) business days
after the date payable, the Company will pay interest thereon at a rate of 6%
per annum(or such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such liquidated
damages are due until such amounts, plus all such interest thereon, are paid in
full. The liquidated damages pursuant to the terms hereof shall apply on a daily
pro-rata basis for any portion of a month prior to the cure of an Event.
Notwithstanding anything herein to the contrary, the Company agrees and
acknowledges that any extensions to the Filing Date or Effectiveness Date on
account of a Holder failing to timely comply with Section 3(k) relate solely to
that Holder and in no way effect the Filing Date and Effectiveness Date under
this Agreement as they relate to any other Holder, except if there is only one
Holder (including its Affiliates, if any).
(c) Notwithstanding anything to the contrary hereunder, for any liquidated
damages to be paid pursuant to Section 2(b) hereof, 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 Section
2(b) hereof by (y) the average Closing Price on the payment date.
3. Registration Procedures
In connection with the Company's registration obligations hereunder, the
Company shall:
(a) Not less than five (5) Trading Days prior to the filing of a
Registration Statement or any related Prospectus or any amendment or supplement
thereto, the Company shall, (i) furnish to the Holders owning Registrable
Securities registered under such Registration Statement copies of all such
documents proposed to be filed (including documents incorporated or deemed
incorporated by reference to the extent requested by such Person) which
documents
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will be subject to the review of such Holders, and (ii) cause its officers and
directors, counsel and independent certified public accountants to respond to
such inquiries as shall be necessary, in the reasonable opinion of respective
counsel to conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file any such Registration Statement or
any such Prospectus or any amendments or supplements thereto to which the
Holders of a majority of the Registrable Securities registered thereunder shall
reasonably object in good faith, provided that the Company is notified of such
objection in writing no later than five (5) Trading Days after such Holders have
been so furnished copies of such documents.
(b) (i) Prepare and file with the Commission such amendments, including
post-effective amendments, to a Registration Statement and a Prospectus used in
connection therewith as may be necessary to keep such Registration Statement
continuously effective as to the applicable Registrable Securities for the
applicable Effectiveness Period and prepare and file with the Commission such
additional Registration Statements if required in order to register for resale
under the Securities Act all of the Registrable Securities; (ii) cause the
related Prospectus to be amended or supplemented by any required Prospectus
supplement, and as so supplemented or amended to be filed pursuant to Rule 424;
(iii) respond as promptly as reasonably possible to any comments received from
the Commission with respect to such Registration Statement or any amendment
thereto and, as promptly as reasonably possible, upon request, provide the
Holders true and complete copies of all correspondence from and to the
Commission relating to such Registration Statement; and (iv) comply in all
material respects during the applicable Effectiveness Period with the provisions
of the Securities Act and the Exchange Act with respect to the disposition of
all Registrable Securities covered by such Registration Statement during the
applicable period in accordance with the Holders' intended methods of
disposition set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold as promptly as
reasonably possible (i)(A) when a Prospectus or any Prospectus supplement or
post effective amendment to a Registration Statement is proposed to be filed;
(B) when the Commission notifies the Company whether there will be a "review" of
a Registration Statement and whenever the Commission comments in writing on a
Registration Statement (the Company shall upon request provide true and complete
copies thereof and all written responses thereto to each of the Holders); and
(C) with respect to a Registration Statement or any post-effective amendment,
when the same has become effective; (ii) of any request by the Commission or any
other Federal or state governmental authority during the period of effectiveness
of a Registration Statement for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) of the issuance by
the Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of a Registration Statement covering any or
all of such Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and (v) of the occurrence of any
event (including the passage of time that makes the financial statements
included in the Registration Statement ineligible for inclusion therein) of
which the Company has knowledge as a result of which a Prospectus, as then in
effect, contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to
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make the statements therein, in light of the circumstances under which they were
made, not misleading.
(d) Use commercially reasonable efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the effectiveness of a
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, as promptly as reasonably practicable.
(e) Furnish to each Holder, without charge, at least one (1) conformed copy
of each Registration Statement registering Registrable Securities held by such
Holder and each amendment thereto, including financial statements and schedules,
all documents incorporated or deemed to be incorporated therein by reference to
the extent requested in writing by such Person, and all exhibits to the extent
requested by such Person in writing (including those previously furnished or
incorporated by reference) promptly after the filing of such documents with the
Commission.
(f) Promptly deliver to each Holder, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably request in
connection with resales by the Holder of Registrable Securities. Subject to the
terms of this Agreement, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto, except after
the giving of any notice pursuant to Section 3(c).
(g) Prior to any resale of Registrable Securities by a Holder, use its
commercially reasonable efforts to register or qualify or cooperate with the
selling Holders in connection with the registration or qualification (or
exemption from the Registration or qualification) of such Registrable Securities
for the resale by the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably requests in
writing, to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all other
acts or things reasonably necessary to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company shall not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified, subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to service of process
in any such jurisdiction.
(h) If requested in writing by the Holders, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to the
applicable Registration Statement, which certificates shall be free, to the
extent permitted by the Purchase Agreement, of all restrictive legends, and to
enable such Registrable Securities to be in such denominations and registered in
such names as any such Holders may request.
(i) Upon the occurrence of any event contemplated by Section 3(c)(v), as
promptly as reasonably possible, prepare a supplement or amendment, including a
post effective
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amendment, to the applicable Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither such Registration Statement nor the Prospectus
included therein will contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Company notifies the Holders in accordance with clauses
(ii) through (v) of Section 3(c) above to suspend the use of any Prospectus
until the requisite changes to such Prospectus have been made, then the Holders
shall suspend use of such Prospectus. The Company will use its commercially
reasonable efforts to ensure that the use of a Prospectus may be resumed as
promptly as is practicable. The Company shall be entitled to exercise its right
under this Section 3(i) to suspend the availability of a Registration Statement
and the applicable Prospectus, subject to the payment of liquidated damages
pursuant to Section 2(b), for a period not to exceed sixty (60) Trading Days
(which need not be consecutive days) in any twelve (12) month period.
(j) Comply in all material respects with all applicable rules and
regulations of the Commission.
(k) The Company may require each Holder, upon five (5) Trading Days'
notice, to furnish to the Company a certified statement as to, among other
things, the number of Ordinary Shares beneficially owned by such Holder and the
person that has voting and dispositive control over such Shares. It shall be a
condition precedent to the obligations of the Company to take any action
pursuant to this Agreement with respect to the Registrable Securities of any
Holder that such Holder shall furnish to the Company the Selling Stockholder
Questionnaire attached hereto as Annex B.
4. Registration Expenses. Except as otherwise provided for herein, all fees
and expenses incident to the performance of or compliance with this Agreement by
the Company shall be borne by the Company whether or not any Registrable
Securities are sold pursuant to a Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with the Trading Market on which
the Ordinary Shares is then listed for trading, and (B) in compliance with
applicable state securities or Blue Sky laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is reasonably requested by the holders of a majority of the
Registrable Securities included in a Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) reasonable fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of
the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. In no event shall the Company be
responsible for
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any broker or similar commissions or, except to the extent provided for in the
Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, agents and employees of each of them, each Person who
controls any such Holder (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and the officers, directors, agents and
employees of each such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable attorneys' fees
and expenses) and expenses (collectively, "Losses"), as incurred, arising out of
or relating to any untrue statement of a material fact contained in a
Registration Statement (at the time of its effectiveness), any Prospectus or any
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus (each as of its date), or arising out of or relating to
any omission of a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except to the extent, but only to the extent, that (i)
such untrue statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by or on behalf of such Holder
expressly for use therein, or to the extent that such information relates to
such Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in such Registration Statement, such Prospectus or such form
of Prospectus or in any amendment or supplement thereto (it being understood
that the Holder has approved Annex A hereto for this purpose) or (ii) in the
case of an occurrence of an event of the type specified in Section 3(c)(ii)-(v),
the use by such Holder of an outdated or defective Prospectus after the Company
has notified such Holder in writing that such Prospectus is outdated or
defective and prior to the receipt by such Holder of the Advice contemplated in
Section 6(d).
(b) Indemnification by Holders. Each Holder shall, severally and not
jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses, as
incurred, within ten (10) Trading Days of written notice thereof to the
Indemnifying Party, to the extent arising out of or based solely upon: (x) such
Holder's failure to comply with the prospectus delivery requirements of the
Securities Act or (y) any untrue statement of a material fact contained in a
Registration Statement, any Prospectus, or any form of prospectus, or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading (i) to the extent,
but only to the extent, that such untrue statement or omission is contained in
any information so furnished in writing by or on behalf of such Holder to the
Company specifically for inclusion in such Registration Statement or such
Prospectus or (ii) to the extent that (1) such untrue statements or omissions
are based solely upon information regarding such Holder furnished in writing to
the Company by or on behalf of such Holder expressly for use therein, or to the
extent that such information relates to such Holder or
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such Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
such Registration Statement (it being understood that the Holder has approved
Annex A hereto for this purpose), such Prospectus or such form of Prospectus or
in any amendment or supplement thereto or (2) in the case of an occurrence of an
event of the type specified in Section 3(c)(ii)-(v), the use by such Holder of
an outdated or defective Prospectus after the Company has notified such Holder
in writing that such Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 6(d). In no event
shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of the net proceeds received by such Holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party shall promptly notify the Person
from whom indemnity is sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall have the right to assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of all fees and expenses incurred in connection with defense
thereof; provided, that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that such failure
shall have materially prejudiced the Indemnifying Party's ability to defend such
action.
An Indemnified Party shall have the right to employ separate counsel in any
such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or
Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall reasonably believe that a material conflict of interest is likely to exist
if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and the reasonable fees and expenses of one
(1) separate counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
affected without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending Proceeding in respect of
which any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b)
is unavailable to an Indemnified Party (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of each of the Indemnifying Party and
the
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Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue statement of a material fact omission of a material fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys' or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which the
proceeds actually received by such Holder from the sale of the Registrable
Securities which are the subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, except in
the case of fraud by such Holder.
The indemnity and contribution agreements contained in this Section are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
6. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a Holder, of
any of their obligations under this Agreement, each Holder or the Company, as
the case may be, in addition to being entitled to exercise all rights granted by
law and under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Piggy-Back Registrations. Except for the investors to whom
registration rights were granted pursuant to the Registration Rights Agreement
dated May 4, 2004, among the Company and the investors signatories thereto (the
"2004 RRA"), neither the Company nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Company
in a Registration Statement hereunder. The Company shall not file any other
registration statement until after the Effective Date except for registration
statements on Form F-3 pursuant to the 2004 RRA or on Form S-8 relating to
equity securities issuable in connection with the Company's stock option or
other employee benefit plan.
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(c) Compliance. Each Holder covenants and agrees that it will comply with
the prospectus delivery requirements of the Securities Act as applicable to it
in connection with sales of Registrable Securities pursuant to a Registration
Statement.
(d) Discontinued Disposition. Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c), such Holder will
forthwith discontinue disposition of such Registrable Securities under any
Registration Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Registration Statement. The
Company will use its commercially reasonable efforts to ensure that the use of
such Prospectus may be resumed as promptly as it practicable. The Company agrees
and acknowledges that any periods during which the Holder is required to
discontinue the disposition of the Registrable Securities hereunder shall be
subject to the provisions of Section 2(b).
(e) Piggy-Back Registrations If at any time during the Effectiveness Period
there is not an effective Registration Statement covering all of the Registrable
Securities and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4/F-4 or Form S-8 (each as promulgated under
the Securities Act) or their then equivalents relating to equity securities to
be issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with the stock option or other employee
benefit plans, then the Company shall send to each Holder a written notice of
such determination and, if within fifteen (15) days after the date of such
notice, any such Holder shall so request in writing, the Company shall include
in such registration statement all or any part of such Registrable Securities
such Holder requests to be registered, subject to customary underwriter cutbacks
applicable to all holders of registration rights.
(f) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by the Company and each Holder of
the then outstanding Registrable Securities.
(g) Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be made in accordance with
the provisions of the Purchase Agreement.
(h) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as permitted under
the Purchase Agreement.
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(i) Execution and Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(j) Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined with the
provisions of the Purchase Agreement.
(k) Cumulative Remedies. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(n) Independent Nature of Purchasers' Obligations and Rights. Except as
otherwise provided for herein, the obligations of each Holder hereunder are
several and not joint with the obligations of any other Holder hereunder, and no
Holder shall be responsible in any way for the performance of the obligations of
any other Holder hereunder. Nothing contained herein or in any other agreement
or document delivered at any closing, and no action taken by any Holder pursuant
hereto or thereto, shall be deemed to constitute the Holders as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Holders are in any way acting in concert with respect to
such obligations or the transactions contemplated by this Agreement. Each Holder
shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Holder to be joined as an additional party in any
proceeding for such purpose.
(o) Notice of Disposition of Registrable Securities. Upon the request of
the Company, each Holder shall promptly provide the Company written notice at
such time as it no longer holds, directly or indirectly, any Registrable
Securities.
*************************
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
ATTUNITY LTD.
By: /s/Xxx Xxxxxx /s/Xxxx Xxxxx
-------------------------------
Name: Xxx Xxxxxx Xxxx Xxxxx
Title: CEO CFO
[SIGNATURE PAGE OF HOLDERS FOLLOWS]
[PURCHASER'S SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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
--------------------------------
[SIGNATURE PAGES CONTINUE]
[PURCHASER'S SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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
--------------------------------
[SIGNATURE PAGES CONTINUE]
15
[PURCHASER'S SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Name of Investing Entity: Xxxxx, Xxxx & Xxxxx Software Fund L.P.
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
--------------------------------
[SIGNATURE PAGES CONTINUE]
16
[PURCHASER'S SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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
--------------------------------
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