Exhibit 4.14
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
SUBJECT TO THE PROVISIONS OF SECTION 10 HEREOF, THIS WARRANT SHALL BE
VOID AFTER 5:00 P.M. EASTERN TIME ON FEBRUARY 4, 2007 (the "EXPIRATION DATE").
No. _______
ATTUNITY LTD.
WARRANT TO PURCHASE 20,000 ORDINARY SHARES
NOMINAL VALUE NIS 0.1 PER SHARE
For VALUE RECEIVED, [ ], an Israeli company (the
"Warrantholder"), is entitled to purchase, subject to the provisions of this
Warrant, from Attunity Ltd., an Israeli company (the "Company"), at any time not
later than 5:00 P.M., Eastern time, on the Expiration Date, at an exercise price
per share equal to $1.92 (the exercise price in effect being herein called the
"Warrant Price"), 20,000 shares ("Warrant Shares") of the Company's ordinary
shares, nominal value NIS 0.1 per share ("Ordinary Shares"). The number of
Warrant Shares purchasable upon exercise of this Warrant and the Warrant Price
shall be subject to adjustment from time to time as described herein.
Section 1. Registration. The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance of this
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended ("Securities Act"), or an exemption from such
registration. Subject to such restrictions, the Company shall transfer this
Warrant from time to time upon the books to be maintained by the Company for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer and such other documents as
may be reasonably required by the Company, including, if required by the
Company, an opinion of its counsel to the effect that such transfer is exempt
from the registration requirements of the Securities Act of 1933, to establish
that such transfer is being made in accordance with the terms hereof, and a new
Warrant shall be issued to the transferee and the surrendered Warrant shall be
canceled by the Company.
Section 3. Exercise of Warrant. Subject to the provisions hereof, the
Warrantholder may exercise this Warrant in whole or in part at any time upon
surrender of the Warrant, together with delivery of the duly executed Warrant
exercise form attached hereto as Appendix A (the "Exercise Agreement") and
payment by cash, certified check or wire transfer of funds for the aggregate
Warrant Price for that number of Warrant Shares then being purchased, to the
Company during normal business hours on any business day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof). The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the next
business day after the date on which this Warrant shall have been surrendered
(or evidence of loss, theft or destruction thereof and security or indemnity
satisfactory to the Company), the Warrant Price shall have been paid and the
completed Exercise Agreement shall have been delivered. Certificates for the
Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding three (3) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall be in
such denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall be designated
by such holder. If this Warrant shall have been exercised only in part, then,
unless this Warrant has expired, the Company shall, at its expense, at the time
of delivery of such certificates, deliver to the holder a new Warrant
representing the number of shares with respect to which this Warrant shall not
then have been exercised. As used herein, "business day" means a day, other than
a Saturday or Sunday, on which banks in New York City are open for the general
transaction of business.
Section 4. Compliance with the Securities Act of 1933. The Company may
cause the legend set forth on the first page of this Warrant to be set
forth on each Warrant or similar legend on any security issued or issuable
upon exercise of this Warrant, unless counsel for the Company is of the
opinion as to any such security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon
the exercise of the Warrant; provided, however, that the Company shall not
be required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issuance or delivery of any certificates for
Warrant Shares in a name other than that of the registered holder of this
Warrant in respect of which such shares are issued, and in such case, the
Company shall not be required to issue or deliver any certificate for
Warrant Shares or any Warrant until the person requesting the same has paid
to the Company the amount of such tax or has established to the Company's
reasonable satisfaction that such tax has been paid. The holder shall be
responsible for income and gift taxes due under federal, state or other
law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange
and substitution of and upon cancellation of the mutilated Warrant, or in
lieu of and
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substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but
only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction of the Warrant, and with respect to a lost,
stolen or destroyed Warrant, reasonable indemnity or bond with respect
thereto, if requested by the Company.
Section 7. Reservation of Ordinary Shares. The Company hereby represents
and warrants that there have been reserved, and the Company shall at all
applicable times keep reserved until issued (if necessary) as contemplated
by this Section 7, out of the authorized and unissued Ordinary Shares,
sufficient shares to provide for the exercise of the rights of purchase
represented by this Warrant. The Company agrees that all Warrant Shares
issued upon exercise of the Warrant shall be, at the time of delivery of
the certificates for such Warrant Shares upon the due exercise of this
Warrant, duly authorized, validly issued, fully paid and non-assessable
Ordinary Shares of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall, at any time or from time to time while
this Warrant is outstanding, pay a dividend or make a distribution on its
Ordinary Shares in Ordinary Shares, subdivide its outstanding Ordinary
Shares into a greater number of shares or combine its outstanding Ordinary
Shares into a smaller number of shares or issue by reclassification of its
outstanding Ordinary Shares any shares of its capital stock (including any
such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then the number of Warrant
Shares purchasable upon exercise of the Warrant and the Warrant Price in
effect immediately prior to the date upon which such change shall become
effective, shall be adjusted by the Company so that the Warrantholder
thereafter exercising the Warrant shall be entitled to receive the number
of Ordinary Shares or other capital stock which the Warrantholder would
have received if the Warrant had been exercised immediately prior to such
event upon payment of a Warrant Price that has been adjusted to reflect a
fair allocation of the economics of such event to the Warrantholder. Such
adjustments shall be made successively whenever any event listed above
shall occur.
(b) If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with
another corporation in which the Company is not the survivor, or sale,
transfer or other disposition of all or substantially all of the Company's
assets to another corporation shall be effected, then, as a condition of
such reorganization, reclassification, consolidation, merger, sale,
transfer or other disposition, lawful and adequate provision shall be made
whereby the Warrantholder shall thereafter have the right to purchase and
receive upon the basis and upon the terms and conditions herein specified
and in lieu of the Warrant Shares immediately theretofore issuable upon
exercise of the Warrant, such shares of stock,
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securities or assets as would have been issuable or payable with respect to
or in exchange for a number of Warrant Shares equal to the number of
Warrant Shares immediately theretofore issuable upon exercise of the
Warrant, had such reorganization, reclassification, consolidation, merger,
sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and
interests of each Warrantholder to the end that the provisions hereof
(including, without limitation, provision for adjustment of the Warrant
Price) shall thereafter be applicable, as nearly equivalent as may be
practicable in relation to any shares of stock, securities or properties
thereafter deliverable upon the exercise thereof. The provisions of this
paragraph (b) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales, transfers or other
dispositions.
(c) For the term of this Warrant, in addition to the provisions
contained above, the Warrant Price shall be subject to adjustment as
provided below. An adjustment to the Warrant Price shall become effective
immediately after the payment date in the case of each dividend or
distribution and immediately after the effective date of each other event
which requires an adjustment.
(d) In the event that, as a result of an adjustment made pursuant
to this Section 8, the holder of this Warrant shall become entitled to
receive any shares of capital stock of the Company other than Ordinary
Shares, the number of such other shares so receivable upon exercise of this
Warrant shall be subject thereafter to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Warrant Shares contained in this Warrant.
(e) Record Date. In case 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 payable in Ordinary Shares, Options or
Convertible Securities, then such record date shall be deemed to be the
date of the issue or sale of the Ordinary Shares deemed to have been issued
or sold upon the declaration of such dividend.
Section 9. Fractional Interest. The Company shall not be required to
issue fractions of Warrant Shares upon the exercise of the Warrant.
Section 10. Benefits. Nothing in this Warrant shall be construed to give
any person, firm or corporation (other than the Company and the Warrantholder)
any legal or equitable right, remedy or claim, it being agreed that this Warrant
shall be for the sole and exclusive benefit of the Company and the
Warrantholder.
Section 11. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting
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forth in reasonable detail the method of calculation and the facts upon which
such calculation is based. Failure to give such notice to the Warrantholder or
any defect therein shall not affect the legality or validity of the subject
adjustment.
Section 12. Identity of Transfer Agent. The Transfer Agent for the
Ordinary Shares is American Stock Transfer and Trust Company. Upon the
appointment of any subsequent transfer agent for the Ordinary Shares or other
shares of the Company's capital stock issuable upon the exercise of the rights
of purchase represented by the Warrant, the Company will mail to the
Warrantholder a statement setting forth the name and address of such transfer
agent.
Section 13. Notices. Unless otherwise provided, any notice required or
permitted under this Warrant shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one day after delivery to
such carrier. All notices shall be addressed as follows: (i) if to the
Warrantholder, at its address as set forth in the Company's books and records
and, if to the Company, at the address as follows, or at such other address as
the Warrantholder or the Company may designate by ten days' advance written
notice to the other:
If to the Company:
Attunity Ltd.
Einstein Building
Tirat Carmel, Israel
Attention: Arie Gonen
Fax:
011-972-4-857-6745
With a copy (which shall not constitute notice) to:
Carter, Ledyard & Milburn
2 Wall Street
New York, NY 10005
Attention: Steven
Glusband
Fax: (212)
732-3232
Section 14. Registration Rights. The initial holder of this Warrant is
entitled to the benefit of certain registration rights in respect of the Warrant
Shares as provided in Section 1 of that letter agreement between the Company and
the Warrantholder dated February 5, 2004, and any subsequent holder hereof may
be entitled to such rights.
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Section 15. Successors. All the covenants and provisions hereof by or
for the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 16. Governing Law. This Warrant shall be governed by, and
construed in accordance with, the internal laws of the State of Israel, without
reference to the choice of law provisions thereof. The Company and, by accepting
this Warrant, the Warrantholder, each irrevocably submits to the exclusive
jurisdiction of the courts of Haifa, Israel to the exclusion of all other
jurisdictions for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Warrant and the transactions contemplated
hereby. Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by the same
methods as are specified for the giving of notices under this Warrant. The
Company and, by accepting this Warrant, the Warrantholder, each irrevocably
consents to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. The Company and, by
accepting this Warrant, the Warrantholder, each irrevocably waives any objection
to the laying of venue of any such suit, action or proceeding brought in such
courts and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 17. No Rights as Stockholder. Prior to the exercise of this
Warrant, the Warrantholder shall not have or exercise any rights as a
stockholder of the Company by virtue of its ownership of this Warrant.
Section 18. Amendment; Waiver Any term of this Warrant may be amended or
waived (including the adjustment provisions included in Section 8 of this
Warrant) upon the written consent of the Company and the Warrantholder.
Section 19. Section Headings. The section heading in this Warrant are
for the convenience of the Company and the Warrantholder and in no way alter,
modify, amend, limit or restrict the provisions hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed on the __ day of February, 2004.
ATTUNITY LTD.
By:___________________________
Name:
Title:
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APPENDIX A
Attunity Ltd.
WARRANT EXERCISE FORM
To: Attunity Ltd.
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by the payment of the Warrant Price and surrender of the Warrant,
_______________ Ordinary Shares ("Warrant Shares") provided for therein, and
requests that certificates for the Warrant Shares be issued as follows:
-------------------------------
Name
--------------------------------
Address
--------------------------------
--------------------------------
Federal Tax ID or Social Security No.
and delivered by certified mail to the above address, or
electronically (provide DWAC
Instructions:___________________), or
other (specify:
__________________________________________).
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares purchasable upon exercise of this Warrant be registered in
the name of the undersigned Warrantholder or the undersigned's Assignee as below
indicated and delivered to the address stated below.
Dated: ___________________, ____
Note: The signature must correspond with
Signature:______________________________
the name of the registered holder as written
on the first page of the Warrant in every _____________________________
particular, without alteration or enlargement Name (please print)
or any change whatever, unless the Warrant
has been assigned. _____________________________
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Address
-----------------------------
Federal Identification or
Social Security No.
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Assignee:
-----------------------------
-----------------------------
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