Registration No. 333-_____
As filed with the Securities and Exchange Commission on January 26, 2005
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ATTUNITY LTD
(Exact name of registrant as specified in its charter)
Israel Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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Einstein Building, Tirat Carmel, Haifa 39101, Israel
(Address of Principal Executive Offices) (Zip Code)
ATTUNITY LTD YEAR 2001 STOCK OPTION PLAN
ATTUNITY LTD - THE 2003 ISRAELI SHARE OPTION PLAN
(Full title of the plan)
Attunity Inc.
Attn.: Ofer Segev, Chief Financial Officer
40 Audubon Road
Wakefield, Massachusetts 01880
(Name, address of agent for service)
(781) 213-5200
(Telephone number, including area code, of agent for service)
Copy to:
Steven J. Glusband, Esq.
Carter Ledyard & Milburn LLP
2 Wall Street
New York, New York 10005
(212) 732-3200
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminate number of shares of the Registrant's ordinary shares, par value NIS 0.10 per share (the "Ordinary Shares") that may be offered or issued pursuant to the Attunity Ltd Year 2001 Stock Option Plan and the Attunity Ltd - The 2003 Israeli Share Option Plan by reason of stock splits, stock dividends or similar transactions.
(2) Issuable under options that may be granted in the future under the Attunity Ltd Year 2001 Stock Option Plan and the Attunity Ltd - The 2003 Israeli Share Option Plan.
(3) Issuable under options granted under the Attunity Ltd Year 2001 Stock Option Plan.
(4) Issuable under options granted under the Attunity Ltd - The 2003 Israeli Share Option Plan.
(5) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended, the proposed maximum offering price per share is calculated based on the basis of the average of the daily high and low sale prices ($2.59 and $2.51, respectively) of an Ordinary Share as quoted on the NASDAQ National Market on January 20, 2005.
(6) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended, in the case of Ordinary Shares purchasable upon exercise of outstanding options, the proposed maximum offering price is the exercise price provided for in the relevant option.
(7) Calculated pursuant to Section 6(b) of the Securities Act of 1933 as follows: proposed maximum aggregate offering price multiplied by 0.0001177.
This Registration Statement shall become effective immediately upon filing as provided in Rule 462 under the Securities Act of 1933.
The purpose of this Registration Statement on Form S-8 is to register 4,038,396 Ordinary Shares for issuance under the Attunity Ltd Year 2001 Stock Option Plan and the Attunity Ltd - The 2003 Israeli Share Option Plan, which are issuable as follows:
The Attunity Ltd Year 2001 Stock Option Plan, or the 2001 Plan, authorized the grant of options to purchase up to 1,000,000 Ordinary Shares and was amended such that an additional 1,000,000 Ordinary Shares may be issued thereunder, subsequent to which up to 2,000,000 Ordinary Shares were issuable under the 2001 Plan.
The Attunity Ltd - The 2003 Israeli Share Option Plan , or the 2003 Plan, authorized the grant of options to purchase up to 1,500,000 Ordinary Shares. The adoption of the 2003 Plan did not increase the total number of ordinary shares reserved for issuance under the Registrant's stock option plans, but rather Ordinary Shares available for grant under the Registrant's other outstanding stock option plans may be rolled over into the 2003 Plan according to a resolution of the Registrant's Board of Directors from time to time. The Registrant is registering under this Registration Statement on Form S-8 an aggregate 816,896 Ordinary Shares, of which 400,916 Ordinary Shares were originally reserved for issuance under the Attunity Ltd (f/k/a ISG International Software Group Ltd.) 1994 Stock Option Plan and 437,480 Ordinary Shares were originally reserved for issuance under the Attunity Ltd (f/k/a ISG International Software Group Ltd.) 1998 Stock Option Plan and have now been added to the 2003 Plan.
In August 2004, the Registrant's shareholders approved an amendment to the 2001 Plan and 2003 Plan to provide for the issuance thereunder of an additional 600,000 Ordinary Shares, such shares to be allocated between the two plans as determined by the Registrant's Board of Directors from time to time.
In December 2004, the Registrant's shareholders approved a further amendment to the 2001 Plan and 2003 Plan to provide for the issuance thereunder of an additional 600,000 Ordinary Shares, such shares to be allocated between the two plans as determined by the Registrant's Board of Directors from time to time.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") (Commission File No. 000-20892), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 20-F/A for the fiscal year ended December 31, 2003 filed with the Commission on November 22, 2004;
(b) The Registrant's Reports of Foreign Private Issuer on Form 6-K submitted to the Commission on January 29, 2004, February 5, 2004, March 11, 2004, March 31, 2004, May 11, 2004, August 10, 2004, August 16, 2004, September 10, 2004, October 29, 2004, November 19, 2004, December 2, 2004 and December 9, 2004and the Registrant's Report of Foreign Private Issuer on Report on Form 6-K/A submitted to the SEC on November 17, 2004.
(c) The description of the Registrant's Ordinary Shares contained in the Item 1 of Registrant's registration statement on Form 8-A filed with the Commission on December 17, 1991.
All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and all Reports on Form 6-K submitted to the Commission subsequent to the date hereof, to the extent that such Reports indicate that information therein is incorporated by reference into the Registrant's Registration Statements on Form S-8, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part of this Registration Statement from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Exculpation of Office Holders
The Israeli Companies Law provides that an Israeli company cannot exculpate an office holder from liability with respect to a breach of his duty of loyalty, but may, if permitted by its articles of association, exculpate in advance an office holder from his liability to the company, in whole or in part, with respect to a breach of his duty of care. Our articles of association permit us to exculpate an officer to the maximum extent permitted by the Israeli Companies Law.
Insurance of Office Holders
The Israeli Companies Law provides that a company may, if permitted by its articles of association, enter into a contract for the insurance of the liability of any of its office holders with respect to an act performed by him in his capacity as an office holder, for:
o breach of his duty of care to us or to another person;
o breach of his duty of loyalty to us, provided that the office holder acted in good faith and had reasonable cause to assume that his act would not prejudice our interests; or
o a financial liability imposed upon him in favor of another person.
Our articles of association provide that we may enter into a contract for the insurance of the liability, in whole in part, of any of our office holders, to the maximum extent permitted by the Israeli Companies Law.
Indemnification of Office Holders
In accordance with the Israeli Companies Law, our articles of association provide that we may, with respect to an act performed by an office holder in such capacity, (i) undertake in advance to indemnify an office holder, provided that the undertaking shall be restricted to foreseeable events and up to a feasible amount, as determined by our board of directors; and (ii) indemnify an office holder retroactively; against:
o a financial liability imposed on him in favor of another person by any judgment, including a settlement or an arbitrator's award approved by a court; and
o reasonable litigation expenses, including attorneys' fees, expended by such office holder or charged to him by a court, in a proceeding we instituted against him or instituted on our behalf or by another person, or in a criminal charge from which he was acquitted or in which he was convicted of an offense that does not require proof of criminal intent.
Limitations on Exculpation, Insurance and Indemnification
The Israeli Companies Law provides that a company may not indemnify an office holder, nor exculpate an office holder, nor enter into an insurance contract which would provide coverage for any monetary liability incurred as a result of certain improper actions.
Pursuant to the Israeli Companies Law, exculpation of, procurement of insurance coverage for, and an undertaking to indemnify or indemnification of, our office holders must be approved by our audit committee and our board of directors and, if such office holder is a director, also by our shareholders.
We have undertaken to indemnify our office holders to the fullest extent permitted by law. We currently maintain directors and officers liability insurance with a per claim and aggregate coverage limit of $10 million including legal costs incurred in Israel.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS.
4.1 Memorandum of Association (1)
4.2 Articles of Association, as amended (2)
4.3 Attunity Ltd Year 2001 Stock Option Plan
4.4 Attunity Ltd - The 2003 Israeli Share Option Plan
5 Opinion of Goldfarb, Levy, Eran & Co.
23.1 Consent of Goldfarb, Levy, Eran & Co. (contained in Exhibit 5)
23.2 Consent of Kost Forer Gabbay & Kasierer
24 Power of Attorney (see Page 9)
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(1) Filed as a Exhibit 3.1 to the Registrant's Registration
Statement on Form F-1, registration number 33-54020, filed on
October 30, 1992, and incorporated herein by reference.
(2) Filed as Exhibit 3.2 to the Registrant's Annual Report on Form
20-F for the year ended December 31, 2000, filed on July 13,
2001, and incorporated herein by reference.
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Item 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(l)(i) and
(a)(l)(ii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Israel on this 25th day of January, 2005.
Attunity Ltd
By: /s/ Itzhak (Aki) Ratner
-----------------------
Name: Itzhak (Aki) Ratner
Title: Chief Executive Officer
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POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and directors of Attunity Ltd, an Israeli company (the "Company"), hereby constitute and appoint Yitzhak (Aki) Ratner and Ofer Segev, and each of them, the true and lawful agents and attorneys-in-fact of the undersigned with full power and authority in said agents and attorneys-in-fact, and in either or both of them, to sign for the undersigned and in their respective names as officers and as directors of the Company, a Registration Statement on Form S-8 (or other appropriate form) (the "Registration Statement") relating to the proposed issuance of Ordinary Shares, par value NIS 0.10 per share, of the Company pursuant to the exercise of stock options and other awards granted under the Attunity Ltd Year 2001 Stock Option Plan and the Attunity Ltd - The 2003 Israeli Stock Option Plan (or any and all amendments, including post-effective amendments, to the Registration Statement) and file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and with full power of substitution, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature Title Date
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/s/Shimon Alon Chairman of the Board of Directors January 25, 2005
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Shimon Alon
/s/Itzhak (Aki) Ratner Chief Executive Officer and Director January 25, 2005
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Itzhak (Aki) Ratner
/s/Ofer Segev Chief Financial Officer January 25, 2005
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Ofer Segev
/s/Dov Biran Director January 25, 2005
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Dov Biran
______________________ Director
Dan Falk
______________________ Director
Anat Segal
/s/Ron Zuckerman Director January 25, 2005
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Ron Zuckerman
______________________ Director
Zamir Bar-Zion
Attunity Inc. Authorized Representative in
the United States
By: /s/Ofer Segev January 25, 2005
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Name: Ofer Segev
Title: Chief Financial Officer
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EXHIBIT 4.3
ATTUNITY LTD YEAR 2001 STOCK OPTION PLAN
ATTUNITY LTD
YEAR 2001 STOCK OPTION PLAN
(AS AMENDED THROUGH 2004)
Attunity Ltd, a corporation formed under the laws of the State of Israel (the "Company"), hereby establishes and adopts the following Stock Option Plan (as amended from time to time, the "Plan"), effective December 27, 2001 (the "Effective Date").
1. Purpose. The purpose of the Plan is to attract and retain outstanding employees and consultants of the Company and its subsidiaries who will contribute to the Company's success and to achieve long-term objectives which will inure to the benefit of all stockholders of the Company through the additional incentive inherent in the ownership of the Company's ordinary shares ("Shares"). For purposes of the Plan, the term "Subsidiary" shall mean "subsidiary corporation," as such term is defined in Section 424(f) of the U.S. Internal Revenue Code of 1986, as amended (the "Code"). For purposes of the Plan, the term "Award" shall mean a grant of an option to purchase Shares (an "Option") pursuant to the Plan.
2. Shares Subject to Awards.
(a) Awards under the Plan may be granted in the following forms:
(i) incentive stock options ("Incentive Stock Options) as provided in Section 422 of the Code; provided, however, that no Award of Incentive Stock Options shall be made hereunder after the date that is the tenth anniversary of the Effective Date;
(ii) non-qualified stock options ("Non-qualified Options") (the term "Options" includes incentive stock options and non-qualified options);
(iii) options granted pursuant to Section 102 of the Israeli Tax Ordinance ("102 Options"); and
(iv) options granted pursuant to Section 3.9 of the Israeli Tax Ordinance ("3.9 Options").
(b) Subject to the adjustment provisions of Section 12 hereof, the aggregate number of Shares which may be issued under all Awards under the Plan and all options granted under the Attunity Ltd - The 2003 Israeli Share Option Plan (as amended, 2004) (the "2003 Plan" and together with the Plan, the "Plans") shall not exceed three million and two hundred thousand (3,200,000) Shares (excluding [838,396] Shares rolled-over from the Company's 1994 and 1998 plans to the 2003 Plan). Shares delivered under the Plan may be authorized and unissued Shares or Shares reacquired by the Company, or both. The Shares that are forfeited under the terms of the Plan and Shares that are the subject of Options that expire unexercised or which are otherwise surrendered by the holder of such Option (the "Optionee") without receiving any payment or other benefit with respect thereto may again be subject to new Awards under the Plan.
3. Administration of the Plan. The Plan shall be administered by the Board of Directors of the Company (the "Board"), or by members of a compensation committee of the Board, consisting of not fewer than two directors of the Company, as designated by the Board (the "Committee").
The Committee is authorized, subject to the provisions of the Plan, to establish such rules and regulations as it may deem appropriate for the conduct of meetings and proper administration of the Plan. All actions of the Committee shall be taken by majority vote of its members, except that the members thereof may authorize any one or more of their number or any officer of the Company to execute and deliver documents on behalf of the Committee. Subject to the provisions of the Plan, the Committee shall have authority, in its sole discretion, to grant Awards under the Plan, to interpret the provisions of the Plan and, subject to the requirements of applicable law, including Rule 16b-3 of the Exchange Act, to prescribe, amend, and rescind rules and regulations relating to the Plan or any Award thereunder as it may deem necessary or advisable. All decisions made by the Committee pursuant to the provisions of the Plan shall be final, conclusive and binding on all persons. No member of the Committee shall be liable for anything done or omitted to be done by him or by any other member of the Committee in connection with the Plan, except for his own willful misconduct or as expressly provided by statute.
It may be intended that Options issued to Israeli employees of the Company or any of its Subsidiaries shall contain such terms as will qualify them for special tax treatment under section 102 of the Israeli Tax Ordinance ("Section 102"). Accordingly, all 102 Options and/or Shares issued upon the exercise of 102 Options shall be issued to a trustee nominated by the Committee and approved in accordance with the provisions of Section 102 (the "Trustee"), and shall be held in trust for the benefit of such Optionees for the period prescribed in Section 102. Notwithstanding any provision of the Plan or the trust described in the preceding sentence, the Trustee shall not release any 102 Option which has not been exercised into Shares by an Optionee or release any Shares issued upon the exercise of a 102 Option prior to the full payment of the Optionee's tax liabilities arising from such 102 Option. Upon receipt of the grant of a 102 Option, the Optionee may be required to execute a release relieving the Trustee from any liability in respect of any action or decision duly taken and executed in respect of such 102 Option or Shares issued pursuant thereto.
4. Eligibility. Awards shall be made to such employees or consultants of the Company or any of its Subsidiaries as the Committee shall select from time to time; provided, however, that Incentive Stock Options shall not be granted to any person who is not an employee of the Company or its Subsidiaries or to any owner of 10% or more of the total combined voting power of all classes of stock of the Company and its Subsidiaries, as determined under Section 422(b)(6) of the Code (a "10% owner"), except as specifically provided herein. The Committee's designation of an Optionee in any year shall not require the Committee to designate such person to receive Awards or grants in any other year.
5. Stock Option Agreements. All Options granted pursuant to the Plan shall be evidenced in writing by stock option agreements ("Stock Option Agreements") in such form and containing such terms and conditions as the Committee shall determine which are not inconsistent with the provisions of the Plan, including the following:
(a) Type of Option; Number of Shares. Each Option shall be designated
as an Incentive Stock Option, a Non-qualified Option, 102 Option or a 3.9
Option. Each Stock Option Agreement shall state the total number of Shares to
which it pertains; provided, however, that the aggregate Fair Market Value (as
defined below) of Shares subject to an Incentive Stock Option granted to any
employee in any calendar year under this Plan and all other plans of the Company
and its Subsidiaries shall not exceed $100,000, as determined in accordance with
Section 422 of the Code.
(b) Option Price. The Option price per Share shall be determined by the Committee at the time any Option is granted and stated in the Stock Option Agreement, but shall not be less than 100% of the Fair Market Value of such Share on the date of the Award; provided, however, that in the case of an Award of Incentive Stock Option made to a 10% owner, the Option price per Share shall be not less than 110% of the Fair Market Value of such Share on the date of the Award. For all purposes under the Plan, Fair Market Value shall mean, if the Shares are listed or admitted to trading on a securities exchange, the per Share closing price of the Shares for the day immediately preceding the date as of which Fair Market Value is being determined (or if there was no reported closing price on such date, on the last preceding date on which the closing price was reported) reported on the principal securities exchange on which the Shares are listed or admitted to trading and reflected in the consolidated trading tables of The Wall Street Journal, or simillar publication when the Wall Street Journal is unavailable.
(c) Option Period. The period for which the Option is granted shall be determined by the Committee, and the Stock Option Agreement shall provide that the Option shall expire at the end of such period: provided, however, that no Option shall be exercisable after the expiration of ten years from the date of its Award; and, provided further that an Option shall not be exercisable unless counsel for the Company shall be satisfied that the issuance of Shares upon exercise will be in compliance with the Exchange Act and other applicable laws. No Option may be exercised after the expiration of its term. Notwithstanding the foregoing, in the case of an Award of Incentive Stock Options made to a 10% owner, such Option shall not be exercisable after the expiration of five years from its date of Award.
(d) Exercise Period. The Exercise Period for which the Option is
granted shall be determined by the Committee, but in no event shall exceed ten
(10) years.
Except as otherwise provided upon a Change of Control of the Company in
Section 11 hereof, Options that are subject to vesting shall cease to vest upon
the Optionee's termination and/or resignation of employment as an employee or
consultant for any reason; provided, however, that in the year that an Optionee
terminates and/or resigns employment as an employee or consultant on account of
his or her death or disability, the Optionee shall receive a fraction of the
incremental percentage increase in vesting that the Optionee would have received
had he or she remained employed until the next vesting date equal to the
proportional time of service to the
Company or any Subsidiary in such year. For the purpose of this section, the Optionee's termination and/or resignation date shall be his last date of employment.
(e) Time and Manner of Payment. Each Stock Option Agreement shall provide that Options granted under the Plan shall be exercised by the Optionee (or by his executors, administrators, guardian or legal representative) as to all or part of the Shares covered thereby, by the giving of written notice of exercise to the Company, specifying the number of Shares to be purchased. Full payment of such purchase price shall be made within five business days following the receipt of such notice by the Company and shall be made in cash or by certified check or bank check; provided, however, that the Optionee may order the deduction of full payment out of the proceeds of the immediate sales of the Shares. Such notice of exercise and full payment, shall be delivered to the Company at its principal business office or such other office as the Committee may from time to time direct, and shall be in such form, containing such further provisions consistent with the provisions of the Plan, as the Committee may from time to time prescribe. In no event may any Option granted hereunder be exercised for a fraction of a Share. The Company shall effect the transfer of Shares purchased pursuant to an Option as soon as practicable, and, within a reasonable time thereafter, such transfer shall be evidenced on the books of the Company. No person exercising an Option shall have any of the rights of a holder of Shares subject to an Option until certificates for such Shares shall have been issued following the exercise of such Option. No adjustment shall be made for cash dividends or other rights for which the record date is prior to the date of such issuance.
(f) Other Provisions. A Stock Option Agreement may contain any other terms and conditions that the Committee, in its sole discretion, deems appropriate; provided, however, that no such term or condition shall be inconsistent with the terms of the Plan or, in the case of an Incentive Stock Option, Section 422 of the Code. Each Stock Option Agreement may condition the exercise of any Option upon the attainment of specified productivity goals by a Company group or division or an individual Optionee.
6. Non-Transferability of Options. No Option shall be assignable or
transferable by the Optionee, other than by will or the laws of descent and
distribution, and may be exercised during the lifetime of the Optionee only by
the Optionee or his guardian or legal representative; provided, however, that
during the Optionee?s lifetime, the Optionee may, with the consent of the
Committee, transfer without consideration all or any portion of his Options to
(i) one or more members of the Optionee?s immediate family, (ii) a trust
established for the exclusive benefit of one or more members of the Optionee?s
immediate family, or (iii) a limited liability company in which all members are
members of the Optionee's immediate family. For purposes of this Section6,
immediate "family" means the Optionee's spouse, children, stepchildren,
grandchildren, parents, stepparents, grandparents, siblings (including
half-brothers and half-sisters), in-laws, and all such relationships arising
because of legal adoption; provided, however, that any such immediate family,
and any such trust, partnership and limited liability company, shall agree to be
and shall be bound by the terms and provisions of the Plan and any applicable
Stock Option Agreement or other agreements covering the Options of the Shares.
7. Termination of Employment or Services as a Consultant.
(a) Except as otherwise provided by the Committee in a Stock Option Agreement, in the event of the termination of and/or resignation from employment or consulting services of an Optionee with the Company and its Subsidiaries for any reason (other than termination for cause, retirement, death, disability or Change of Control of the Company as provided below), Options granted to him that have not previously expired or been exercised shall be, to the extent exercisable on the date of such termination and/or resignation (the "Termination Date"), exercisable by the Optionee within 30 days after such Termination Date, unless such Option is earlier terminated pursuant to its terms; provided, however, that if a Termination Date falls within a restricted period (such as a "Quiet Period," as may be determined by the Committee, or within a restricted period due to tax regulations), then the Termination Date shall be determined to be the first following date after the end of such restricted period. All Options that are not exercisable as of the Termination Date or which are not exercised within 30 days thereafter, shall be deemed canceled and terminated as of such date. For the purpose of this section, the Optionee's Termination Date shall be the date of the Optionee's "Letter of Termination" or "Letter of Resignation" (as the case may be); provided, however, that the CEO and COO of the Company are hereby authorized to determine the Termination Date as any other date .
(b) In the event that an Optionee?s employment or consulting services agreement is terminated by the Company or any of its Subsidiaries for "cause," all Options exercisable as of the date of such termination shall be canceled and terminated as of such date. For these purposes, termination for "cause" shall mean the following: the Optionee's violation of copyright/trademark protection maintained by the Company, a Subsidiary or Affiliate; the Optionee's engaging or assisting in any business in competition with the Company, a Subsidiary as an employee, owner, partner, director, officer, stockholder, consultant or agent (ownership of minority interests in publicly-traded corporations or of 5% or less of the equity of privately-held corporations, partnerships or companies shall not be considered competition for purposes of this Plan); the Optionee's dishonesty, or acting in any manner inconsistent with the utmost good faith and loyalty in the performance of the Optionee's duties; failure of the Optionee to perform his duties to the reasonable satisfaction of the Company or its Subsidiaries.
8. Retirement. Except as otherwise provided by the Committee in a Stock Option Agreement, in the event that an Optionee retires from employment with the Company and its Subsidiaries, Options granted to him that have not previously expired or been exercised shall, to the extent exercisable on the date of retirement, continue to be exercisable by the Optionee in accordance with the Stock Option Agreement under which such Options were granted. Whether or not an Optionee has "retired" shall be determined by the Committee in its sole discretion.
9. Death. In the event an Optionee dies while employed by or providing consulting services to the Company or any of its Subsidiaries, any Option granted to him that has not previously expired or been exercised shall, to the extent exercisable on the date of death, be exercisable by the estate of such Optionee or by any person who acquired such Option by bequest or inheritance, at any time within one year after the date of death of the Optionee, unless such Option is earlier terminated pursuant to its terms. All Options that are not exercisable as of the
date of the Optionee's death or which are not exercised within one years thereafter shall be deemed canceled and terminated as of such applicable date.
10. Disability. In the event of the termination and/or resignation of employment or consulting services of an Optionee due to total disability, the Optionee or his guardian or legal representative, shall have the right to exercise any Option which has not been previously exercised or expired and which the Optionee was eligible to exercise as of the first date of total disability, at any time within one year after such termination and/or resignation or separation, unless such Option is earlier terminated pursuant to its terms. All Options that are not exercisable as of the date of the Optionee's termination and/or resignation or which are not exercised within one year thereafter shall be deemed canceled and terminated as of such applicable date. The term "total disability" shall, for purposes of this Plan, be defined in the same manner as such term is defined in Section 22(e)(3) of the Code and shall be determined by the Committee in its sole discretion.
11. Change of Control. Except as otherwise provided by the Committee in a Stock Option Agreement, upon a Change of Control of the Company, Options granted to any Optionee that have not previously expired or been exercised shall become null and void. A Change of Control shall be deemed to have occurred when:
(a) any person (as such term is used in Section 13 of the Exchange Act and the rules and regulations thereunder and any person acting in concert with such person) directly or indirectly acquires or otherwise becomes entitled to vote more than 80% of the voting power entitled to be cast at elections for directors of the Company; or
(b) there occurs any merger or consolidation of the Company, or any sale, lease or exchange of all or any substantial part of the consolidated assets of the Company and its Subsidiaries to any other person, and (i) in the case of a merger or consolidation, the holders of outstanding stock of the Company entitled to vote in elections of directors of the Company immediately before such merger or consolidation (excluding for this purpose any person that directly or indirectly owns or is entitled to vote 20% or more of the voting power of the Company) hold less than 80% of the voting power of the survivor of such merger or consolidation or its parent, or (ii) in the case of any such sale, lease or exchange, the Company does not own at least 80% of the voting power of the other person, or
(c) one or more new directors of the Company are elected and at such time five or more directors (or, if less, a majority of the directors) then holding office were not nominated as candidates by a majority of the directors in office immediately before such election.
12. Adjustments. In the event that the Committee shall determine that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities, the issuance of warrants or other rights to purchase Shares or other securities, or other similar corporate transaction or event affects the Shares with respect to which Options have been or may be issued
under the Plan, such that an adjustment is determined by the Committee to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as the Committee may deem equitable, adjust any or all of (i) the number and type of Shares that thereafter may be made the subject of Options, (ii) the number and type of Shares subject to outstanding Options, and (iii) the grant or exercise price with respect to any Option, or, if deemed appropriate, make provision for a cash payment to the holder of any outstanding Option; provided, however, that the number of Shares subject to any Option denominated in Shares shall always be a whole number.
13. Tax Withholding. The Optionee shall be fully and solely responsible for any local, state, federal and/or any other tax resulting from the grant of the Options and/or from exercise of such options. The Company shall have the right to withhold from such Optionee such withholding taxes as may be required by law, or to otherwise require the Optionee to pay such withholding taxes. If the Optionee shall fail to make such tax payments as are required, the Company or its Subsidiaries shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind, including a payment of Shares, otherwise due to such Optionee or to take such other action as may be necessary to satisfy such withholding obligations.
14. Right of Discharge Reserved. Nothing in the Plan nor the grant of an Award hereunder shall confer upon any employee or other individual the right to continue in the employment of or to continue under a consulting services agreement with the Company or any of its Subsidiaries or affect any right that the Company or any Subsidiary or Affiliate may have to terminate the employment of (or to demote or to exclude from future Options under the Plan) any such employee or consultant at any time for any reason. Except as specifically provided by the Committee, the Company shall not be liable for the loss of existing or potential profit from an Award granted in the event of termination of employment or any consulting services agreement even if the termination is in violation of an obligation of the Company or any Subsidiary of the Company to the employee.
15. Severability. If any provision of the Plan shall be held unlawful or otherwise invalid or unenforceable in whole or in part, such unlawfulness, invalidity or unenforceability shall not affect any other provision of the Plan or part thereof, each of which remain in full force and effect. If the making of any payment or the provision of any other benefit required under the Plan shall be held unlawful or otherwise invalid or unenforceable, such unlawfulness, invalidity or unenforceability shall not prevent any other payment or benefit from being made or provided under the Plan, to the extent that it would not be unlawful, invalid or unenforceable, and the maximum payment or benefit that would not be unlawful, invalid or unenforceable shall be made or provided under the Plan.
16. Amendment and Termination of the Plan. The Board may, from time to time, alter, amend, suspend or terminate the Plan with respect to Options that have not been granted, subject to any requirement for stockholder approval imposed by applicable law or any rule of any stock exchange or quotation system on which Shares are listed or quoted; provided, however, that the Board may not amend the Plan in any manner that would result in noncompliance with
any applicable law. Neither the Board nor the Committee may, without the consent of the Optionee, alter or in any way impair the rights of such Optionee under any Award previously granted. Neither the termination of the Plan nor, except as provided in Section 11, the Change of Control of the Company shall affect any Option previously granted.
Without amending the Plan, the Committee may grant Options to eligible individuals who are foreign nationals on such terms and conditions different from those specified in this Plan as may in the judgment of the Committee be necessary or desirable to foster and promote achievement of the purposes of the Plan, and, in furtherance of such purposes, the Committee may make such modifications, amendment, procedures and the like to the Plan as may be necessary or advisable to comply with the provisions of laws in other countries in which the Company operates or has employees.
17. Gender and Number. Any masculine terminology used in this Plan document shall also include the feminine, and the definition of any term herein in the singular shall also include the plural except when otherwise indicated by the context.
18. Governing Law. The Plan and all determinations made and actions taken thereunder, to the extent not otherwise governed by the Code or the laws of the United States, shall be governed by the laws of the State of Israel and construed accordingly.
EXHIBIT 4.4
ATTUNITY LTD. - THE 2003 ISRAELI SHARE OPTION PLAN
ATTUNITY LTD.
THE 2003 ISRAELI SHARE OPTION PLAN
(as amended through 2004)
(*In compliance with Amendment No. 132 of the Israeli Tax Ordinance, 2002)
TABLE OF CONTENTS
1. PURPOSE OF THE ISOP........................................................3
2. DEFINITIONS................................................................3
3. ADMINISTRATION OF THE ISOP.................................................6
4. DESIGNATION OF PARTICIPANTS................................................7
5. DESIGNATION OF OPTIONS PURSUANT TO SECTION 102 ............................7
6. TRUSTEE....................................................................9
7. SHARES RESERVED FOR THE ISOP...............................................9
8. PURCHASE PRICE............................................................10
9. ADJUSTMENTS...............................................................10
10. TERM AND EXERCISE OF OPTIONS.............................................12
11. VESTING OF OPTIONS.......................................................13
12. PURCHASE FOR INVESTMENT..................................................13
13. DIVIDENDS................................................................14
14. RESTRICTIONS ON ASSIGNABILITY AND SALE OF OPTIONS........................14
15. EFFECTIVE DATE AND DURATION OF THE ISOP..................................14
16. AMENDMENTS OR TERMINATION................................................14
17. GOVERNMENT REGULATIONS...................................................15
18. CONTINUANCE OF EMPLOYMENT................................................15
19. GOVERNING LAW & JURISDICTION.............................................15
20. TAX CONSEQUENCES.........................................................15
21. NON-EXCLUSIVITY OF THE ISOP..............................................15
22. MULTIPLE AGREEMENTS......................................................16
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This plan, as amended from time to time, shall be known as Attunity Ltd. 2003 Israeli Share Option Plan (the "ISOP").
1. PURPOSE OF THE ISOP
The ISOP is intended to provide an incentive to retain, in the employ of the Company and its Affiliates (as defined below), persons of training, experience, and ability, to attract new employees, directors, consultants, service providers and any other entity which the Board shall decide their services are considered valuable to the Company, to encourage the sense of proprietorship of such persons, and to stimulate the active interest of such persons in the development and financial success of the Company by providing them with opportunities to purchase shares in the Company, pursuant to the ISOP.
2. DEFINITIONS
For purposes of the ISOP and related documents, including the Option Agreement, the following definitions shall apply:
2.1 "Affiliate" means any "employing company" within the meaning of
Section 102(a) of the Ordinance.
2.2 "Approved 102 Option" means an Option granted pursuant to Section 102(b) of the Ordinance and held in trust by a Trustee for the benefit of the Optionee.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Capital Gain Option (CGO)" as defined in Section 5.4 below.
2.5 "Cause" means, (i) conviction of any felony involving moral turpitude
or affecting the Company; (ii) any refusal to carry out a reasonable
directive of the chief executive officer, the Board or the Optionee's
direct supervisor, which involves the business of the Company or its
Affiliates and was capable of being lawfully performed time to cure;
(iii) embezzlement of funds of the Company or its Affiliates; (iv) any
breach of the Optionee's fiduciary duties or duties of care of the
Company; including without limitation disclosure of confidential
information of the Company; and (v) any conduct (other than conduct in
good faith) reasonably determined by the Board to be materially
detrimental to the Company.
In order to remove doubt, it is hereby clarified that in any event of conflict between the definition of the term "Cause" in this ISOP and the definition of the term "Cause" in certain employment agreement, the definition in this ISOP shall prevail in connection with the Option, with the Option Agreement and with this ISOP.
2.6 "Chairman" means the chairman of the Committee.
2.7 "Code" means the United States Internal Revenue Code of 1986, as now in effect or as hereafter amended.
2.8 "Committee" means a share option compensation committee of the Board,
designated from time to time by the resolution of the Board, which
shall consist of no fewer than two members of the Board. The Committee
shall consist of directors who are "outside directors" as defined in
Section 162(m) of the Code and "Non-Employee Directors" as defined in
Rule 16b-3 promulgated by the Securities and Exchange Commission under
the United States Securities Exchange Act of 1934.
2.9 "Company" means Attunity Ltd., an Israeli company.
2.10 "Companies Law" means the Israeli Companies Law 5759-1999, as now in effect or as hereafter amended.
2.11 "Controlling Shareholder" shall have the meaning ascribed to it in
Section 32(9) of the Ordinance.
2.12 "Date of Grant" means, the date of grant of an Option, as determined by the Board or authorized Committee and set forth in the Optionee's Option Agreement.
2.13 Employee" means a person who is employed by the Company or its Affiliates, including an individual who is serving as a director or an office holder, but excluding Controlling Shareholder.
2.14 "Expiration date" means the date upon which an Option shall expire, as set forth in Section 10.2 of the ISOP.
2.15 "Fair Market Value" means as of any date, the value of a Share determined as follows:
(i) If the Shares are listed on any established stock exchange or a national market system , including without limitation the NASDAQ National Market system, or the NASDAQ SmallCap Market of the NASDAQ Stock Market, the Fair Market Value shall be the closing sales price for such Shares (or the closing bid, if no sales were reported), as quoted on such exchange or system for the last market trading day prior to time of determination, as reported in the Wall Street Journal, or such other source as the Board deems reliable.
Without derogating from the above, solely for the purpose of determining the tax liability pursuant to Section 102(b)(3) of the Ordinance, if at the Date of Grant the Company's shares are listed on any established stock exchange or a national market system or if the Company's shares will be registered for trading within ninety (90) days following the Date of Grant, the Fair Market Value of a Share at the Date of Grant shall be determined in accordance with the average value of the Company's shares on the thirty (30) trading days preceding the Date of Grant or on the thirty (30) trading days following the date of registration for trading, as the case may be;
(ii) If the Shares are regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value shall be the mean between the high bid and low asked prices for the Shares on the last market trading day prior to the day of determination, or;
(iii) In the absence of an established market for the Shares, the Fair Market Value thereof shall be determined in good faith by the Board.
2.16 "ISOP" means this 2003 Israeli Share Option Plan, as may be amended from time to time.
2.17 "ITA" means the Israeli Tax Authorities.
2.18 "Non-Employee" means a consultant, adviser, service provider, Controlling Shareholder or any other person who is not an Employee.
2.19 "Ordinary Income Option (OIO)" as defined in Section 5.5 below.
2.20 "Option" means an option to purchase one or more Shares of the Company pursuant to the ISOP.
2.21 "102 Option" means any Option granted to Employees pursuant to Section 102 of the Ordinance.
2.22 "3(i) Option" means an Option granted pursuant to Section 3(i) of the Ordinance to any person who is Non- Employee.
2.23 "Optionee" means a person who receives or holds an Option under the ISOP.
2.24 "Option Agreement" means the share option agreement between the Company and an Optionee that sets out the terms and conditions of an Option.
2.25 "Ordinance" means the 1961 Israeli Income Tax Ordinance [New Version] 1961 as now in effect or as hereafter amended and regulations promulgated thereunder.
2.26 "Purchase Price" means the price for each Share subject to an Option.
2.27 "Section 102" means section 102 of the Ordinance as now in effect or as hereafter amended.
2.28 "Share" means the ordinary shares, NIS 0.1 par value each, of the Company. 2.29 "Successor Company" means any entity the Company is merged to or is acquired by, in which the Company is not the surviving entity.
2.30 "Transaction" means (i) merger, acquisition or reorganization of the Company with one or more other entities in which the Company is not the surviving entity, (ii) a sale of all or substantially all of the assets or shares of the Company not covered by paragraph (1) above.
2.31 "Trustee" means any individual appointed by the Company to serve as a trustee and approved by the ITA, all in accordance with the provisions of Section 102(a) of the Ordinance.
2.32 "Unapproved 102 Option" means an Option granted pursuant to Section 102(c) of the Ordinance and not held in trust by a Trustee for the benefit of the Optionee.
2.33 "Vested Option" means any Option, which has already been vested according to the Vesting Dates.
2.34 "Vesting Dates" means, as determined by the Board or by the Committee, the date as of which the Optionee shall be entitled to exercise the Options or part of the Options, as set forth in section 11 of the ISOP.
3. ADMINISTRATION OF THE ISOP
3.1 The Board shall have the power to administer the ISOP either directly or upon the recommendation of the Committee, all as provided by applicable law and in the Company's Articles of Association. Notwithstanding the above, the Board shall automatically have residual authority: (i) if no Committee shall be constituted or; (ii) if such Committee shall cease to operate for any reason or; (iii) with respect to the rights not delegated by the Board to the Committee.
3.2 The Committee shall select one of its members as its Chairman and shall hold its meetings at such times and places as the Chairman shall determine. The Committee shall keep records of its meetings and shall make such rules and regulations for the conduct of its business as it shall deem advisable.
3.3 The Committee shall have the power to recommend to the Board and the Board shall have the full power and authority to: (i) designate participants; (ii) determine the terms and provisions of the respective Option Agreements, including, but not limited to, the number of Options to be granted to each Optionee, the number of Shares to be covered by each Option, provisions concerning the time and the extent to which the Options may be exercised and the nature and duration of restrictions as to the transferability or restrictions constituting substantial risk of forfeiture and to cancel or suspend awards, as necessary; (iii) determine the Fair Market Value of the Shares covered by each Option; (iv) make an election as to the type of Approved 102 Option; and (v) designate the type of Options.
The Committee shall have full power and authority to :(i) alter any restrictions and conditions of any Options or Shares subject to any Options (ii) interpret the provisions and supervise the administration of the ISOP; (iii) accelerate the right of an Optionee to exercise in whole or in part, any previously granted Option; (iv) determine the Purchase Price of the Option; (v) prescribe, amend and rescind rules and regulations relating to the ISOP; and (vi) make all other determinations deemed necessary or advisable for the administration of the ISOP.
3.4 Notwithstanding the above, the Committee shall not be entitled to grant Options to the Optionees, however, it will be authorized to issue Shares underlying Options which have been granted by the Board and duly exercised pursuant to the provisions herein in accordance with section 112(a)(5) of the Companies Law.
3.5 The Board shall have the authority to grant, at its discretion, to the holder of an outstanding Option, in exchange for the surrender and cancellation of such Option, a new Option having a purchase price equal to, lower than or higher than the Purchase Price of the original Option so surrendered and canceled and containing such other terms and conditions as the Committee may prescribe in accordance with the provisions of the ISOP.
3.6 Subject to the Company's Articles of Association, all decisions and selections made by the Board or the Committee pursuant to the provisions of the ISOP shall be made by a majority of its members except that, subject to the provisions of the Companies Law, no member of the Board or the Committee shall vote on, or be counted for quorum purposes, with respect to any proposed action of the Board or the Committee relating to any Option to be granted to that member. Any decision reduced to writing shall be executed in accordance with the provisions of the Company's Articles of Association, as the same may be in effect from time to time.
3.7 The interpretation and construction by the Board or the Committee of any provision of the ISOP or of any Option Agreement thereunder shall be final and conclusive unless otherwise determined by the Board.
3.8 Subject to the Company's Articles of Association and the Company's decision, and to all approvals legally required, including, but not limited to the provisions of the Companies Law, each member of the Board or the Committee shall be indemnified and held harmless by the Company against any cost or expense (including counsel fees) reasonably incurred by him, or any liability (including any sum paid in settlement of a claim with the approval of the Company) arising out of any act or omission to act in connection with the ISOP unless arising out of such member's own fraud or bad faith, to the extent permitted by applicable law. Such indemnification shall be in addition to any rights of indemnification the member may have as a director or otherwise under the Company's Articles of Association, any agreement, any vote of shareholders or disinterested directors, insurance policy or otherwise.
4. DESIGNATION OF PARTICIPANTS
4.1 The persons eligible for participation in the ISOP as Optionees shall
include any Employees and/or Non-Employees of the Company or of any
Affiliate; provided, however, that (i) Employees may only be granted
102 Options; (ii) Non-Employees may only be granted 3(i) Options; and
(iii) Controlling Shareholders may only be granted 3(i) Options.
4.2 The grant of an Option hereunder shall neither entitle the Optionee to participate nor disqualify the Optionee from participating in, any other grant of Options pursuant to the ISOP or any other option or share plan of the Company or any of its Affiliates.
4.3 Anything in the ISOP to the contrary notwithstanding, all grants of Options to directors and office holders shall be authorized and implemented in accordance with the provisions of the Companies Law or any successor act or regulation, as in effect from time to time.
5. DESIGNATION OF OPTIONS PURSUANT TO SECTION 102
5.1 The Company may designate Options granted to Employees pursuant to
Section 102 as Unapproved 102 Options or Approved 102 Options.
5.2 The grant of Approved 102 Options shall be made under this ISOP
adopted by the Board as described in Section 15 below, and shall be
conditioned upon the approval of this ISOP by the ITA as required by
Section 102.
5.3 Subject to the provisions of Section 5.6 below, Approved 102 Option may either be classified as Capital Gain Option ("CGO") or Ordinary Income Option ("OIO").
5.4 Approved 102 Option elected and designated by the Company to qualify under the capital gain tax treatment in accordance with the provisions of Section 102(b)(2) shall be referred to herein as CGO.
5.5 Approved 102 Option elected and designated by the Company to qualify under the ordinary income tax treatment in accordance with the provisions of Section 102(b)(1) shall be referred to herein as OIO.
5.6 The Company's election of the type of Approved 102 Options as CGO or OIO granted to Employees (the "Election"), shall be appropriately filed with the ITA before the Date of Grant of an Approved 102 Option. Such Election shall become effective beginning the first Date of Grant of an Approved 102 Option under this ISOP and shall remain in effect until the end of the year following the year during which the Company first granted Approved 102 Options. The Election shall obligate the Company to grant only the type of Approved 102 Option it has elected, and shall apply to all Optionees who were granted Approved 102 Options during the period indicated herein, all in accordance with the provisions of Section 102(g) of the Ordinance. For the avoidance of doubt, such Election shall not prevent the Company from granting Unapproved 102 Options simultaneously.
5.7 All Approved 102 Options must be held in trust by a Trustee, as described in Section 6 below.
5.8 For the avoidance of doubt, the designation of Unapproved 102 Options and Approved 102 Options shall be subject to the terms and conditions set forth in Section 102 of the Ordinance and the regulations promulgated thereunder.
5.9 With regards to Approved 102 Options, the provisions of the ISOP
and/or the Option Agreement shall be subject to the provisions of
Section 102 and the Tax Assessing Officer's permit, and the said
provisions and permit shall be deemed an integral part of the ISOP and
of the Option Agreement. Any provision of Section 102 and/or the said
permit which is necessary in order to receive and/or to keep any tax
benefit pursuant to Section 102, which is not expressly specified in
the ISOP or the Option Agreement, shall be considered binding upon the
Company and the Optionees.
6. TRUSTEE
6.1 Approved 102 Options which shall be granted under the ISOP and/or any Shares allocated or issued upon exercise of such Approved 102 Options and/or other shares received subsequently following any realization of rights, including without limitation bonus shares, shall be allocated or issued to the Trustee and held for the benefit of the Optionees for such period of time as required by Section 102 or any regulations, rules or orders or procedures promulgated thereunder (the "Holding Period"). In the case the requirements for Approved 102 Options are not met, then the Approved 102 Options may be treated as Unapproved 102 Options, all in accordance with the provisions of Section 102 and regulations promulgated thereunder.
6.2 Notwithstanding anything to the contrary, the Trustee shall not release any Shares allocated or issued upon exercise of Approved 102 Options prior to the full payment of the Optionee's tax liabilities arising from Approved 102 Options which were granted to him and/or any Shares allocated or issued upon exercise of such Options.
6.3 With respect to any Approved 102 Option, subject to the provisions of
Section 102 and any rules or regulation or orders or procedures
promulgated thereunder, an Optionee shall not sell or release from
trust any Share received upon the exercise of an Approved 102 Option
and/or any share received subsequently following any realization of
rights, including without limitation, bonus shares, until the lapse of
the Holding Period required under Section 102 of the Ordinance.
Notwithstanding the above, if any such sale or release occurs during
the Holding Period, the sanctions under Section 102 of the Ordinance
and under any rules or regulation or orders or procedures promulgated
thereunder shall apply to and shall be borne by such Optionee.
6.4 Upon receipt of Approved 102 Option, the Optionee will sign an undertaking to release the Trustee from any liability in respect of any action or decision duly taken and bona fide executed in relation with the ISOP, or any Approved 102 Option or Share granted to him thereunder.
7. SHARES RESERVED FOR THE ISOP; RESTRICTION THEREON
7.1 The total number of Shares that may be subject to Options granted
under the ISOP and the Attunity Ltd Year 2001 Stock Option Plan (as
amended, 2004) (the "2001 Plan" and together with the ISOP, the
"Plans") shall not exceed (following a roll-over of an aggregate of
[838,396] Shares from the Company's 1994 and 1998 plans) [4,038,396]
Shares, subject to adjustment as set forth in Section 9 below. Any
Shares which remain unissued and which are not subject to the
outstanding Options at the termination of the ISOP shall cease to be
reserved for the purpose of the ISOP, but until termination of the
ISOP the Company shall at all times reserve sufficient number of
Shares to meet the requirements of the ISOP. Should any Option for any
reason expire or be canceled prior to its exercise or relinquishment
in full, the Shares subject to such Option may again be subjected to
an Option under the ISOP or under the Company's other share option
plans.
7.2 Each Option granted pursuant to the ISOP, shall be evidenced by a written Option Agreement between the Company and the Optionee, in such form as the Board or the Committee shall from time to time approve. Each Option Agreement shall state, among other matters, the number of Shares to which the Option relates, the type of Option granted thereunder (whether a CGO, OIO, Unapproved 102 Option or a 3(i) Option), the Vesting Dates, the Purchase Price per share, the Expiration Date and such other terms and conditions as the Committee or the Board in its discretion may prescribe, provided that they are consistent with this ISOP. Unless otherwise explicitly expressed in the Option Agreement or in this Plan, in any event of conflict between the provisions of this ISOP and the provisions of the Option Agreement, the provisions of this Option Agreement shall prevail.
8. PURCHASE PRICE
8.1 The Purchase Price of each Share subject to an Option shall be determined by the Committee in its sole and absolute discretion in accordance with applicable law, subject to any guidelines as may be determined by the Board from time to time. Each Option Agreement will contain the Purchase Price determined for each Optionee.
8.2 The Purchase Price shall be payable upon the exercise of the Option in a form satisfactory to the Committee, including without limitation, by cash or check. The Committee shall have the authority to postpone the date of payment on such terms as it may determine.
8.3 The Purchase Price shall be denominated in the currency of the primary economic environment of, either the Company or the Optionee (that is the functional currency of the Company or the currency in which the Optionee is paid) as determined by the Company.
9. ADJUSTMENTS
Upon the occurrence of any of the following described events, Optionee's rights to purchase Shares under the ISOP shall be adjusted as hereafter provided:
9.1 In the event of Transaction, the unexercised Options then outstanding under the ISOP shall be assumed or substituted for an appropriate number of shares of each class of shares or other securities of the Successor Company (or a parent or subsidiary of the Successor Company) as were distributed to the shareholders of Ordinary Shares of the Company in connection and with respect to the Transaction. In the case of such assumption and/or substitution of Options, appropriate adjustments shall be made to the Purchase Price so as to reflect such action and all other terms and conditions of the Option Agreements shall remain unchanged, including but not limited to the vesting schedule, all subject to the determination of the Committee or the Board, which determination shall be in their sole discretion and final. The Company shall notify the Optionee of the Transaction in such form and method as it deems applicable at least ten (10) days prior to the effective date of such Transaction.
9.2 Notwithstanding the above and subject to any applicable law, the Board or the Committee shall have full power and authority to determine that in certain Option Agreements there shall be a clause instructing that, if in any such Transaction as described in section 9.1 above, the Successor Company (or parent or subsidiary of the Successor Company) does not agree to
assume or substitute for the Options, either (i) the Vesting Dates
shall be accelerated so that any unvested Option or any portion
thereof shall be immediately vested as of the date which is ten (10)
days prior to the effective date of the Transaction and any Options
not exercised by ten (10) days prior to the effective date of the
Transaction shall be null and void and no consideration whatsoever
shall be paid to the Optionees in connection with such Options, or
(ii) all unexercised Options shall expire as of the date of the
Transaction.
9.3 For the purposes of section 9.1 above, an Option shall be considered
assumed or substituted if, following the Transaction, the Option
confers the right to purchase or receive, for each Share underlying an
Option immediately prior to the Transaction, the consideration
(whether shares, options, cash, or other securities or property)
received in the Transaction by holders of Ordinary Shares held on the
effective date of the Transaction (and if such holders were offered a
choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares); provided, however,
that if such consideration received in the Transaction is not solely
ordinary shares (or their equivalent) of the Successor Company or its
parent or subsidiary, the Committee may, with the consent of the
Successor Company, provide for the consideration to be received upon
the exercise of the Option to be solely ordinary shares (or their
equivalent) of the Successor Company or its parent or subsidiary equal
in Fair Market Value to the per Share consideration received by
holders of a majority of the outstanding shares in the Transaction;
and provided further that the Committee may determine, in its
discretion, that in lieu of such assumption or substitution of Options
for options of the Successor Company or its parent or subsidiary, such
Options will be substituted for any other type of asset or property
including cash which is fair under the circumstances.
9.4 If the Company is voluntarily liquidated or dissolved while unexercised Options remain outstanding under the ISOP, the Company shall immediately notify all unexercised Option holders of such liquidation, and the Option holders shall then have ten (10) days to exercise any unexercised Vested Option held by them at that time, in accordance with the exercise procedure set forth herein. Upon the expiration of such ten-days period, all remaining outstanding Options will terminate immediately.
9.5 If the outstanding shares of the Company shall at any time be changed or exchanged by declaration of a share dividend (bonus shares), share split, combination or exchange of shares, recapitalization, or any other like event by or of the Company, and as often as the same shall occur, then the number, class and kind of the Shares subject to the ISOP or subject to any Options therefore granted, and the Purchase Prices, shall be appropriately and equitably adjusted so as to maintain the proportionate number of Shares without changing the aggregate Purchase Price, provided, however, that no adjustment shall be made by reason of the distribution of subscription rights (rights offering) on outstanding shares. Upon happening of any of the foregoing, the class and aggregate number of Shares issuable pursuant to the ISOP (as set forth in Section 7 hereof), in respect of which Options have not yet been exercised, shall be appropriately adjusted, all as will be determined by the Board whose determination shall be final.
10. TERM AND EXERCISE OF OPTIONS
10.1 Options shall be exercised by the Optionee by giving written notice to the Company and/or to
any third party designated by the Company (the "Representative"), in
such form and method as may be determined by the Company and when
applicable, by the Trustee in accordance with the requirements of
Section 102, which exercise shall be effective upon receipt of such
notice by the Company and/or the Representative and the payment of the
Purchase Price at the Company's or the Representative's principal
office. The notice shall specify the number of Shares with respect to
which the Option is being exercised.
10.2 Options, to the extent not previously exercised, shall terminate forthwith upon the earlier of: (i) the date set forth in the Option Agreement; and (ii) the expiration of any extended period in any of the events set forth in section 10.5 below.
10.3 The Options may be exercised by the Optionee in whole at any time or in part from time to time, to the extent that the Options become vested and exercisable, prior to the Expiration Date, and provided that, subject to the provisions of section 10.5 below, the Optionee is employed by or providing services to the Company or any of its Affiliates, at all times during the period beginning with the granting of the Option and ending upon the date of exercise.
10.4 Subject to the provisions of section 10.5 below, in the event of termination of Optionee's employment or services, with the Company or any of its Affiliates, all Options granted to such Optionee will immediately expire. A notice of termination of employment or service shall be deemed to constitute termination of employment or service. For the avoidance of doubt, in case of such termination of employment or service, the unvested portion of the Optionee's Option shall not vest and shall not become exercisable.
10.5 Notwithstanding anything to the contrary hereinabove and unless otherwise determined in the Optionee's Option Agreement, an Option may be exercised after the date of termination of Optionee's employment or service with the Company or any Affiliates during an additional period of time beyond the date of such termination, but only with respect to the number of Vested Options at the time of such termination according to the Vesting Dates, if:
(i) termination is without Cause, in which event any Vested Option still in force and unexpired may be exercised within a period of ninety (90) days after the date of such termination; or-
(ii) termination is the result of death or disability of the Optionee, in which event any Vested Option still in force and unexpired may be exercised within a period of twelve (12) months after the date of such termination; or -
(iii)prior to the date of such termination, the Committee shall authorize an extension of the terms of all or part of the Vested Options beyond the date of such termination for a period not to exceed the period during which the Options by their terms would otherwise have been exercisable.
For avoidance of any doubt, if termination of employment or service is for Cause, any outstanding unexercised Option (whether vested or non-vested), will immediately expire and terminate, and the Optionee shall not have any right in connection to such outstanding Options.
10.6 To avoid doubt, the Optionees shall not have any of the rights or privileges of shareholders of the Company in respect of any Shares purchasable upon the exercise of any Option, nor shall they be deemed to be a class of shareholders or creditors of the Company for purpose of the operation of sections 350 and 351 of the Companies Law or any successor to such section, until registration of the Optionee as holder of such Shares in the Company's register of shareholders upon exercise of the Option in accordance with the provisions of the ISOP, but in case of Options and Shares held by the Trustee, subject to the provisions of Section 6 of the ISOP.
10.7 Any form of Option Agreement authorized by the ISOP may contain such other provisions as the Committee may, from time to time, deem advisable.
10.8 With respect to Unapproved 102 Option, if the Optionee ceases to be employed by the Company or any Affiliate, the Optionee shall extend to the Company and/or its Affiliate a security or guarantee for the payment of tax due at the time of sale of Shares, all in accordance with the provisions of Section 102 and the rules, regulation or orders promulgated thereunder.
11. VESTING OF OPTIONS
11.1 Subject to the provisions of the ISOP, each Option shall vest following the Vesting Dates and for the number of Shares as shall be provided in the Option Agreement. However, subject to the provisions of Section 10.5 above, no Option shall be exercisable after the Expiration Date.
11.2 An Option may be subject to such other terms and conditions on the time or times when it may be exercised, as the Committee may deem appropriate. The vesting provisions of individual Options may vary.
12. PURCHASE FOR INVESTMENT
The Company's obligation to issue or allocate Shares upon exercise of an Option granted under the ISOP is expressly conditioned upon: (a) the Company's completion of any registration or other qualifications of such Shares under all applicable laws, rules and regulations or (b) representations and undertakings by the Optionee (or his legal representative, heir or legatee, in the event of the Optionee's death) to assure that the sale of the Shares complies with any registration exemption requirements which the Company in its sole discretion shall deem necessary or advisable. Such required representations and undertakings may include representations and agreements that such Optionee (or his legal representative, heir, or legatee): (a) is purchasing such Shares for investment and not with any present intention of selling or otherwise disposing thereof; and (b) agrees to have placed upon the face and reverse of any certificates evidencing such Shares a legend setting forth (i) any representations and undertakings which such Optionee has given to the Company or a reference thereto and (ii) that, prior to effecting any sale or other disposition of any such Shares, the Optionee must furnish to the Company an opinion of counsel, satisfactory to the Company, that such sale or disposition will not violate the applicable laws, rules, and regulations, whether of the State of Israel or of the United States or any other State having jurisdiction over the Company and the Optionee.
13. DIVIDENDS
With respect to all Shares (but excluding, for avoidance of any doubt, any unexercised Options) allocated or issued upon the exercise of Options purchased by the Optionee and held by the Optionee or by the Trustee, as the case may be, the Optionee shall be entitled to receive dividends in accordance with the quantity of such Shares, subject to the provisions of the Company's Articles of Association (and all amendments thereto) and subject to any applicable taxation on distribution of dividends, and when applicable subject to the provisions of Section 102 and the rules, regulations or orders promulgated thereunder.
14. RESTRICTIONS ON ASSIGNABILITY AND SALE OF OPTIONS
14.1 No Option or any right with respect thereto, purchasable hereunder, whether fully paid or not, shall be assignable, transferable or given as collateral or any right with respect to it given to any third party whatsoever, except as specifically allowed under the ISOP, and during the lifetime of the Optionee each and all of such Optionee's rights to purchase Shares hereunder shall be exercisable only by the Optionee.
Any such action made directly or indirectly, for an immediate validation or for a future one, shall be void.
14.2 As long as Options and/or Shares are held by the Trustee on behalf of the Optionee, all rights of the Optionee over the Shares are personal, can not be transferred, assigned, pledged or mortgaged, other than by will or pursuant to the laws of descent and distribution.
15. EFFECTIVE DATE AND DURATION OF THE ISOP
The ISOP shall be effective as of the day it was adopted by the Board and shall terminate at the end of ten (10) years from such day of adoption.
16. AMENDMENTS OR TERMINATION
The Board may at any time, but when applicable, after consultation with the Trustee, amend, alter, suspend or terminate the ISOP. No amendment, alteration, suspension or termination of the ISOP shall impair the rights of any Optionee, unless mutually agreed otherwise between the Optionee and the Company, which agreement must be in writing and signed by the Optionee and the Company. Termination of the ISOP shall not affect the Committee's ability to exercise the powers granted to it hereunder with respect to Options granted under the ISOP prior to the date of such termination.
17. GOVERNMENT REGULATIONS
The ISOP, and the granting and exercise of Options hereunder, and the obligation of the Company to sell and deliver Shares under such Options, shall be subject to all applicable laws, rules, and regulations, whether of the State of Israel or of the United States or any other State having jurisdiction over the Company and the Optionee, including the registration of the Shares under the United States Securities Act of 1933, and the Ordinance and to such approvals by any governmental agencies or national securities exchanges as may be required. Nothing herein shall be deemed to require the Company to register the Shares under the securities laws of any jurisdiction.
18. CONTINUANCE OF EMPLOYMENT OR HIRED SERVICES
Neither the ISOP nor the Option Agreement with the Optionee shall impose any obligation on the Company or an Affiliate thereof, to continue any Optionee in its employ or service, and nothing in the ISOP or in any Option granted pursuant thereto shall confer upon any Optionee any right to continue in the employ or service of the Company or an Affiliate thereof or restrict the right of the Company or an Affiliate thereof to terminate such employment or service at any time.
19. GOVERNING LAW & JURISDICTION
The ISOP shall be governed by and construed and enforced in accordance with the laws of the State of Israel applicable to contracts made and to be performed therein, without giving effect to the principles of conflict of laws. The competent courts of Tel-Aviv, Israel shall have sole jurisdiction in any matters pertaining to the ISOP.
20. TAX CONSEQUENCES
20.1 Any tax consequences arising from the grant or exercise of any Option, from the payment for Shares covered thereby or from any other event or act (of the Company and/or its Affiliates, the Trustee or the Optionee), hereunder, shall be borne solely by the Optionee. The Company and/or its Affiliates and/or the Trustee shall withhold taxes according to the requirements under the applicable laws, rules, and regulations, including withholding taxes at source. Furthermore, the Optionee shall agree to indemnify the Company and/or its Affiliates and/or the Trustee and hold them harmless against and from any and all liability for any such tax or interest or penalty thereon, including without limitation, liabilities relating to the necessity to withhold, or to have withheld, any such tax from any payment made to the Optionee.
20.2 The Company and/or, when applicable, the Trustee shall not be required to release any Share certificate to an Optionee until all required payments have been fully made.
21. NON-EXCLUSIVITY OF THE ISOP
The adoption of the ISOP by the Board shall not be construed as amending, modifying or rescinding any previously approved incentive arrangements or as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of Options otherwise than under the ISOP, and such arrangements may be either applicable generally or only in specific cases.
For the avoidance of doubt, prior grant of options to Optionees of the Company under their employment agreements, and not in the framework of any previous option plan, shall not be deemed an approved incentive arrangement for the purpose of this Section.
22. MULTIPLE AGREEMENTS
The terms of each Option may differ from other Options granted under the ISOP at the same time, or at any other time. The Board may also grant more than one Option to a given Optionee during the term of the ISOP, either in addition to, or in substitution for, one or more Options previously granted to that Optionee.
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EXHIBIT 5
[Letterhead of Goldfarb, Levy, Eran & Co., Law Offices]
January 25, 2005
Attunity Ltd.
Einstein Building, Tirat Carmel
Haifa 39101
Israel File: 3605/008
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), on behalf of Attunity Ltd (the "Company"), relating to 4,038,396 of the Company's Ordinary Shares, NIS 0.10 nominal value per share (the "Shares"), issuable upon the exercise of options granted or to be granted under the Attunity Ltd Year 2001 Stock Option Plan and the Attunity Ltd - The 2003 Israeli Share Option Plan (collectively, the "Plans").
We are members of the Israel Bar and we express no opinion as to any matter relating to the laws of any jurisdiction other than the laws of Israel.
As counsel for the Company, we have examined such corporate records, other documents, and such questions of Israeli law as we have considered necessary or appropriate for the purposes of this opinion and, upon the basis of such examination, advise you that in our opinion, the Shares, when paid for and issued in accordance with the terms of the Plans, will be duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a party whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act.
Very truly yours,
/s/ Goldfarb, Levy, Eran & Co. Goldfarb, Levy, Eran & Co. |
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Attunity Ltd Year 2001 Stock Option Plan and the Attunity Ltd - The 2003 Israeli Share Option Plan, of our report dated March 11, 2004, with respect to the consolidated financial statements of Attunity Ltd included in its Annual Report on Form 20-F/A for the year ended December 31, 2003, filed with the Securities and Exchange Commission.
/s/Kost Forer Gabbay and Kasierer
Tel-Aviv, Israel KOST FORER GABBAY & KASIERER
January 24, 2005 A Member of Ernst & Young Global
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