AGREEMENT AND PLAN OF MERGER by and among QLIKTECH INTERNATIONAL AB JOFFIGER LTD. PROJECT ALPHA INTERMEDIATE HOLDING, INC. QLIK TECHNOLOGIES, INC. and ATTUNITY LTD. February 21, 2019

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of February 21, 2019 by and among QlikTech International AB, a company organized under the laws of the State of Sweden (“Parent”), Joffiger Ltd., a company organized under the laws of the State of Israel and a wholly-owned subsidiary of Parent (“Merger Sub”), Attunity Ltd., a company organized under the laws of the State of Israel (the “Company”), and, solely for purposes of Section 6.4, Section 7.2(f), Section 7.10 and Section 10.12 hereof, Project Alpha Intermediate Holding, Inc., a Delaware corporation (“Ultimate Parent”) and, solely for purposes of Section 6.4, Section 7.2(f), Section 7.10 and Section 10.12 hereof, Qlik Technologies, Inc. (“Qlik Technologies”). All capitalized terms used in this Agreement shall have the respective meanings ascribed thereto in ‎‎ARTICLE I.

W I T N E S S E T H:

WHEREAS, the parties hereto intend to enter into a transaction whereby Merger Sub will merge with and into the Company (the “Merger”) on the terms and subject to the conditions set forth in this Agreement and in accordance with the provisions of Sections 314-327 of the Israeli Companies Law, 5759-1999 (together with the rules and regulations promulgated thereunder, the “ICL”), following which Merger Sub will cease to exist, and the Company will become a wholly owned subsidiary of Parent, on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, the Board of Directors of the Company has unanimously: (i) determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are fair to, and in the best interests of, the Company and its shareholders and that, considering the financial position of the merging companies, no reasonable concern exists that the Surviving Company will be unable to fulfill the obligations of the Company to its creditors; (ii) approved this Agreement, the Merger and the other transactions contemplated hereby; and (iii) determined to recommend that the shareholders of the Company approve this Agreement, the Merger and the other transactions contemplated hereby (such recommendation to the shareholders, the “Company Board Recommendation”);

WHEREAS, the Boards of Directors of each of Parent and Merger Sub have each unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and the Board of Directors of Merger Sub has further determined (i) that this Agreement, the Merger and the other transactions contemplated by this Agreement are fair to, and in the best interests of, Merger Sub and its shareholders; (ii) that considering the financial position of the merging companies, no reasonable concern exists that the Surviving Company will be unable to fulfill the obligations of Merger Sub to its creditors; and (iii) to recommend that the shareholders of Merger Sub approve this Agreement, the Merger and the other transactions contemplated hereby;

WHEREAS, concurrently with the execution of this Agreement, certain of the Company’s directors, officers and shareholders have entered into voting agreements substantially in the form attached hereto as Exhibit A (the “Voting Agreements”), dated as of the date hereof, with Parent, pursuant to which, among other things, such Persons have agreed to vote such Person’s Company Shares in favor of the approval of this Agreement and against any Acquisition Proposal; and

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE I

DEFINITIONS & INTERPRETATIONS

Section 1.1             Certain Definitions. For all purposes of and under this Agreement, the following capitalized terms shall have the following respective meanings:

“102 Trustee” shall mean IBI Capital Compensation and Trusts (2004) Ltd., the trustee appointed by the Company from time to time in accordance with the provisions of the Ordinance, and approved by the ITA, with respect to the Company 102 Options, the Company ▇▇▇ ▇▇▇▇ and the Company 102 Shares.

“Acceptable Confidentiality Agreement” shall mean an executed confidentiality agreement with the Company in writing that (a) is no less favorable in the aggregate to the Company with respect to the confidentiality of the Company’s disclosed information than the Confidentiality Agreement and (b) does not prohibit the Company from complying with its obligations under this Agreement, including ‎Section 5.3; provided that an Acceptable Confidentiality Agreement need not include a standstill or other similar obligation.

“Acquisition Proposal” shall mean any inquiry, offer or proposal (other than an inquiry, offer or proposal by Parent or Merger Sub) relating to an Acquisition Transaction.

“Acquisition Transaction” shall mean any transaction or series of related transactions (other than the transactions contemplated by this Agreement) involving: (i) the purchase or other acquisition, including through any tender offer or exchange offer, by any Person or “group” (as defined in or under Section 13(d) of the Exchange Act), directly or indirectly, of Company Shares (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such Company Shares) representing more than twenty-five percent (25%) of the outstanding Company Shares; (ii) a merger, consolidation, business combination, scheme of arrangement, share exchange, reorganization, recapitalization, liquidation, dissolution or similar transaction involving the Company and/or any of its Subsidiaries that, if consummated in accordance with its terms, would result in any Person or “group” (as defined in or under Section 13(d) of the Exchange Act) beneficially owning (including through the ownership of options, rights or warrants to purchase, or securities convertible into or exchangeable for, securities that represent Company Shares) directly or indirectly, more than twenty-five percent (25%) of the outstanding Company Shares or more than twenty-five percent (25%) of the voting equity interests in the surviving or resulting entity of such transaction; (iii) any direct or indirect acquisition or purchase, in a single transaction or a series of related transactions, including by means of the acquisition of capital stock of the Subsidiaries of the Company, of assets or properties that constitute more than twenty-five percent (25%) of the consolidated revenues or assets of the Company and its Subsidiaries, taken as a whole or (iv) any combination of the foregoing clauses (i)-(iii).

“Affiliate” shall mean, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person. For purposes of the immediately preceding sentence, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

“Antitrust Law” shall mean any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition, in any case that are applicable to the transactions contemplated by this Agreement.

“Business Day” shall mean any day other than a Friday, Saturday, Sunday or other day on which the commercial banks in New York, New York or Israel are authorized or required by Law or executive order to be closed.

“Company Balance Sheet” shall mean the unaudited consolidated balance sheet of the Company and its Subsidiaries as of the Company Balance Sheet Date.

“Company Balance Sheet Date” shall mean December 31, 2018.

“Company Board” shall mean the Board of Directors of the Company.

“Company Expenses” shall mean, to the extent unpaid as of immediately prior to the Closing: (i) all costs, fees and expenses of the Company and its Subsidiaries incurred in connection with or in anticipation of the negotiation, execution and delivery of this Agreement and the transactions contemplated hereby by any of their respective professional advisors, including legal, accounting and investment banking costs, fees and expenses; (ii) the sum of any sale bonus, severance, change in control bonus, transaction completion bonus or other similar payments required to be made by the Company or any of its Subsidiaries to any current or former employees or other service providers of any of the Company or any of its Subsidiaries as a result of the consummation of the transactions contemplated hereby (it being understood that (x) any double trigger or similar severance payments contingent on the satisfaction of additional conditions following the Closing and (y) the Option Consideration and RSU Consideration are not considered Company Expenses); and (iii) the D&O Tail Expense, if purchased prior to Closing.

“Company Material Adverse Effect” shall mean any change, circumstance, effect, event, fact, condition, occurrence or development (each a “Change”, and collectively, “Changes”) that, individually or in the aggregate, (a) has or is reasonably likely to have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (b) is reasonably likely to prevent, materially delay or materially impair the Company’s ability to consummate the Merger and the other transactions contemplated by this Agreement; provided, however, that, solely with respect to the preceding clause (a), no Change (by itself or when aggregated or taken together with any and all other Changes, directly or indirectly) resulting from, relating to or arising out of any of the following shall be deemed to be or constitute, or shall be taken into account in determining whether there is, a “Company Material Adverse Effect”; provided, further, that the following clauses (i), (ii), (iii), (iv), (v) and (vi) shall be taken into account in determining whether a Company Material Adverse Effect has occurred to the extent, and solely to the extent, such Changes materially and disproportionately impact the Company and its Subsidiaries (taken as a whole) relative to other businesses of a similar size in the industries in which the Company and its Subsidiaries operate:

(i)                 general economic or business conditions (or changes in such conditions) in Israel, the United States (including any U.S. federal shutdown) or any other country or region in the world or conditions in the global economy generally;

(ii)               conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in Israel, the United States or any other country or region in the world, including (A) interest rates in Israel, the United States or any other country or region in the world and exchange rates for the currencies of any countries (including financial exposure associated with currency exchange rate fluctuation and the effect of such fluctuations on a Person’s results of operations) and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in Israel, the United States or any other country or region in the world;

(iii)             conditions (or changes in such conditions) in the industries in which the Company and its Subsidiaries conduct business, including Changes in conditions in the software industry generally or the data integration and big data management software industry generally;

(iv)             political conditions (or changes in such conditions) in Israel, the United States or any other country or region in the world, or acts of war, armed hostilities, sabotage or terrorism (including any escalation or general worsening of any such acts of war, armed hostilities, sabotage or terrorism) in Israel, the United States or any other country or region in the world;

(v)               changes in Law or other legal or regulatory conditions (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);

(vi)             any natural or man-made disasters, including earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires, weather conditions and other force majeure events in Israel, the United States or any other country or region in the world;

(vii)           the announcement of this Agreement or the pendency or consummation of the transactions contemplated hereby, including the identity of Parent and/or any communication by Parent or Merger Sub of their plans or intentions with respect to any of the businesses of the Company or its Subsidiaries, and the actual or threatened impact thereof, including on the relationships (or potential relationships) or development in relationships, in each case, contractual or otherwise, with officers, employees, customers, supplies, distributors or other partners;

(viii)         any action taken or not taken by Parent or Merger Sub in breach of the express provisions of this Agreement;

(ix)             any action or omission by the Company or its Subsidiaries required by Law or the terms of this Agreement, or at the written request of, or with the written consent or waiver of, Parent or any of its Affiliates;

(x)               changes in the Company’s share price or the trading volume of the Company’s shares, in and of itself, or any failure by the Company to meet any analyst estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company to meet any internal budgets, plans, projections or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures);

(xi)             any Legal Proceedings brought or threatened by any of the current or former shareholders of the Company (on their own behalf or on behalf of the Company) relating to this Agreement or any of the transactions contemplated hereby, including the Merger; and

(xii)           any matters set forth in the Company Disclosure Letter; provided that, for purposes of this clause (xii), the mere inclusion of a list of items such as Contracts, option grants, customers, vendors or intellectual property shall not be deemed to be disclosure of any issues under, or liabilities with respect to, the items on such list.

“Company Options” shall mean any options to purchase Company Shares outstanding under any of the Company Share Plans.

“Company Optionholder” shall mean any holder of Company Options.

“Company PSUs (2018)” shall mean the performance-based Company RSUs described in Section 1.1(i) of the Company Disclosure Letter.

“Company PSUs (2019)” shall mean the performance-based Company RSUs described in Section 1.1(ii) of the Company Disclosure Letter.

“Company PSUs (Revenues)” shall mean the performance-based Company RSUs described in Section 1.1(iii) of the Company Disclosure Letter.

“Company Products” means the products or services (including Software) that have been in the past three years or are currently provided or otherwise made available by the Company or any of its Subsidiaries to their customers.

“Company RSUs” shall mean each award of restricted share units (including, for the sake of clarity, Company PSUs (2018), Company PSUs (2019) and Company PSUs (Revenues)) outstanding under any of the Company Share Plans.

“Company RSUs Holders” shall mean the holders of Company RSUs.

“Company Share Plans” shall mean the Company’s 2012 Stock Incentive Plan (including its Israeli Addendum) and the Company’s 2003 Israeli Share Option Plan, in each case, as may be amended from time to time.

“Company Shareholders” shall mean holders of Company Shares.

“Company IT Systems” means the Software, hardware, firmware, databases, networks, platforms, servers, interfaces, applications and related information technology systems owned, used, relied on or controlled by the Company or any of its Subsidiaries in connection with their respective businesses as of the date of this Agreement. For the sake of clarity, Company IT Systems excludes the Company Products.

“Confidentiality Agreement” shall mean that certain Mutual Non-Disclosure Agreement, dated as of June 26, 2018, by and between Qlik Technologies, ▇▇▇▇▇ ▇▇▇▇▇, LLC and the Company.

“Contract” shall mean any contract, subcontract, agreement, license, commitment, note, bond, mortgage, indenture, lease or other legally binding instrument or arrangement.

“Director Proposal” means the proposal to clarify the terms of acceleration of unvested Company Options and Company RSUs held by non-employee directors that will be submitted at the Company Shareholders Meeting, as more fully detailed in Section 5.1 of the Company Disclosure Letter.

“Effective Time Holder” shall mean a Company Shareholder as of immediately prior to the Effective Time.

“Employee Plan” shall mean each “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA), and each other plan, program, policy, practice, or Contract or other binding arrangement, whether written or oral, providing for terms of employment or consulting services, compensation, severance, transaction or retention-based bonuses, pension, retirement, provident fund (Keren Hishtalmut), termination pay, deferred compensation, performance awards, share or share-based awards, options, health, welfare, paid time off, accident, disability, fringe benefits or other benefits or remuneration, that is sponsored or maintained by the Company or its Subsidiaries, to which the Company or its Subsidiaries contributes or has any obligation to contribute, or under or with respect to which the Company or any of its Subsidiaries has any Liability for the benefit of current or former employees, directors, and individual service providers, in each case, excluding plans, Contracts or other arrangements that are required to be maintained or contributed to by applicable Law or sponsored by, any Governmental Authority.

“Environmental Law” shall mean any Law or Order relating to pollution or the protection of the environment, natural resources or human health or safety (as human health or safety relates to the exposure to Hazardous Substances), or to the handling, use, storage, treatment, transport, disposal, release or threatened release of any Hazardous Substance.

“ERISA” shall mean the United States Employee Retirement Income Security Act of 1974.

“Exchange Act” shall mean the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Financing Sources” means the Persons (other than, for sake of clarity, the Company or any of its Subsidiaries) that have arranged, committed to provide or have otherwise entered into agreements in connection with the Debt Financing or Alternative Financing in connection with the transactions contemplated hereby, including the parties that delivered the Debt Commitment Letter and any joinder agreements or credit agreements entered into pursuant thereto or relating thereto, together with their Affiliates and Representatives involved in the Debt Financing or Alternative Financing, as applicable, and their successors and assigns. For the avoidance of doubt, none of Parent, Merger Sub or any of their respective Affiliates and Representatives shall be considered a Debt Financing Source.

“FTC” shall mean the United States Federal Trade Commission or any successor thereto.

“GAAP” shall mean U.S. generally accepted accounting principles.

“Governmental Authority” shall mean any government, any governmental or regulatory entity or body, department, commission, board, agency or instrumentality, and any court, tribunal or judicial body of competent jurisdiction, any stock exchange or similar self-regulatory organization, in each case whether federal, state, county, provincial, and whether local or foreign.

“Government Grant” shall mean any grant, incentive, qualification, subsidy, award, participation, exemption, status or other benefit from any Governmental Authority granted to, provided or made available to, or enjoyed by the Company or any of its Subsidiaries, including, without limitation, any material Tax or other incentive granted to, provided or made available to, or enjoyed by the Company or any of its Subsidiaries, under the Laws of the State of Israel, and further including without limitation, by or on behalf of or under the authority of the OCS, the Investment Center or any other Governmental Authority.

“Hazardous Substance” shall mean any and all substances, materials or wastes defined or regulated as “hazardous”, “toxic waste”, a “pollutant”, or a “contaminant,” or for which Liability or standards of conduct are imposed, under any applicable Environmental Law, including petroleum, petroleum products, polychlorinated biphenyls, asbestos and asbestos containing materials and radioactive materials.

“HSR Act” shall mean the United States ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976.

“Indebtedness” shall mean, with respect to a Person, without duplication, (a) all indebtedness for borrowed money, (b) all indebtedness for the deferred purchase price of property or services (other than personal property, including inventory and services purchased, trade payables, other expense accruals and deferred compensation items arising in the ordinary course of business), (c)  all obligations evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (f) all reimbursement, payment or similar obligations, contingent or otherwise, in each case under acceptance, letter of credit or similar facilities to the extent drawn upon by the counterparty thereto, (g) any cash/book overdrafts, (h) all obligations arising out of interest rate and currency swap arrangements and any other arrangements designed to provide protection against fluctuations in interest or currency rates and (i) any obligation of others described in clauses (a) through (h) above which such Person has guaranteed or that is otherwise such Person’s legal liability (including pursuant to any keepwell agreement), and including in clauses (a) through (h) above any accrued and unpaid interest or penalties thereon, but in each case, excluding any intercompany arrangements between such Person and its Subsidiaries.

“Intellectual Property Rights” shall mean any and all intellectual property rights in any jurisdiction throughout the world, including all: (i) trademarks, service marks, business names, trade names, and logos, including all applications and registrations for the foregoing, and, in each case, all goodwill associated therewith and symbolized thereby; (ii) patents and patent applications; (iii) inventions, trade secrets, know-how and confidential information; (iv) Internet domain names; (v) registered and unregistered copyrights, and applications for registration thereof; and (vi) rights in Software.

“Intervening Event” shall mean a material Change (other than an Acquisition Proposal) with respect to the Company or its Subsidiaries occurring or arising after the date of this Agreement and prior to obtaining the Company Shareholder Approval, and which was not known to, nor reasonably foreseeable by, the Company Board as of or prior to the date of this Agreement or, if known or reasonably foreseeable, the probability or magnitude of the consequences were not known or reasonably foreseeable.

“Investment Center” shall mean the Israeli Investment Center of the Israeli Ministry of Economy and Industry.

“Knowledge” with respect to a party, means the actual knowledge of any officer or director of such party, in each case, as such knowledge would be imputed to such persons upon reasonable inquiry of any other employee having primary responsibility for the relevant matter; however, in the case of the Company, knowledge with respect to any matter in question shall mean the actual knowledge of (i) the Company’s Chief Executive Officer and the Company’s Chief Financial Officer and (ii) solely with respect to their respective areas of primary responsibility, the Company’s EVP R&D and the Company’s Chief Marketing Officer, in each case of clause (i) and (ii), after reasonable inquiry of any other employee having primary responsibility for the relevant matter.

“Law” shall mean any and all applicable federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, ordinance, code, rule, regulation, ruling or other legal requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

“Legal Proceeding” shall mean any lawsuit, litigation, investigation, audit, mediation, arbitration or other similarly formal legal proceeding, brought by or pending before any Governmental Authority.

“Liabilities” shall mean any liability, obligation or commitment of any kind (whether accrued, absolute, contingent, matured, unmatured or otherwise and whether or not required to be recorded or reflected on a balance sheet prepared in accordance with GAAP).

“Licensed Intellectual Property Rights” means all Intellectual Property Rights owned by another Person and licensed or sublicensed to the Company or its Subsidiaries or for which the Company or its Subsidiaries has obtained a covenant not to be sued, in each case, whether pursuant to a Material Contract set forth on ‎Section 3.10(b) of the Company Disclosure Letter or a valid and enforceable Contract not required to be set forth on ‎Section 3.10(b) of the Company Disclosure Letter.

“Lien” shall mean any lien, pledge, hypothecation, charge, mortgage, easement, license, sublease, hypothecation, claim, title retention agreement, option, security interest or encumbrance of any kind or nature.

“Nasdaq” shall mean The Nasdaq Stock Market LLC.

“OCS” shall mean the Israeli National Authority for Technological Innovation, formerly known as the Office of the Chief Scientist of the Ministry of Economy of the State of Israel.

“OCS Notice” shall mean the written notice to the OCS regarding the change in ownership of the Company effected as a result of the Merger, required to be submitted to the OCS in connection with the Merger in accordance with the Israeli Encouragement of Industrial Research, Development and Innovation Law, 5744-1984, which may be submitted by the Company at any time following the date hereof but not later than the Closing.

“Open Source Software” shall mean any Software that is (i) subject to the GNU General Public License (GPL), the Lesser GNU Public License (LGPL), GNU Affero General Public License (AGPL), the Eclipse Public License, the Creative Commons License, the CDDL, the Mozilla Public License (MPL), the Artistic License (e.g., PERL), the Netscape Public License, the Sun Community Source License (SCSL), and the Sun Industry Standards License (SISL), Server Side Public License (SSPL), any “copyleft” license or any other license that requires, as a condition of use, modification or distribution of such software, that such Software be (a) made available or distributed in source code form, (b) licensed for the purpose of preparing derivative works, or (c) redistributable at no license fee, or (ii) otherwise licensed under an “open source,” “public,” or “free” license.

“Order” shall mean any order, judgment, decision, decree, injunction, ruling, writ or assessment of any Governmental Authority (whether temporary, preliminary or permanent) that is binding on any Person or its property under applicable Law.

“Ordinance” shall mean the Israeli Income Tax Ordinance [New Version], 1961, and all rules and regulations promulgated thereunder.

“Owned Intellectual Property Rights” means all Intellectual Property Rights owned or purported to be owned by the Company or its Subsidiaries, including all Intellectual Property Rights integrated with or embodied in Company Products other than Licensed Intellectual Property Rights.

“Parent Material Adverse Effect” shall mean any effect that, individually or in the aggregate, would reasonably be expected to prevent, materially delay or materially impair Parent’s or Merger Sub’s ability to consummate the Merger and the other transactions contemplated by this Agreement.

“Paying Agent” shall mean American Stock Transfer & Trust Company, LLC or such other paying agent agreed between the parties prior to the Closing.

“Permitted Liens” shall mean (i) Liens arising under worker’s compensation, unemployment insurance, social security, retirement and similar legislation, (ii) Liens for Taxes, assessments or other charges by Governmental Authorities not yet due and payable or which are being contested in good faith and by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (iii) Liens, easements, rights-of-way, covenants and other similar restrictions that have been placed by any developer, landlord or other Person on property over which the Company or its Subsidiaries has easement rights or on any real property and subordination or similar agreements relating thereto, (iv) mechanics’, carriers’, workmen’s, warehousemen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business with respect to obligations which are not yet due and payable or are being contested in good faith by appropriate proceedings, (v) non-exclusive licenses of Intellectual Property Rights granted to customers in the ordinary course of business consistent with past practices, (vi) Liens (other than Liens securing Indebtedness for borrowed money), defects or irregularities in title, easements, rights-of-way, covenants, permits, restrictive covenants, encroachments, restrictions or zoning, entitlement, building and other land use regulations imposed by Governmental Authorities and other similar matters that have not and would not reasonably be expected to, individually or in the aggregate, materially impair the continued use and operation of the tangible assets to which they relate in the business of the Company and its Subsidiaries as currently conducted, (vii) Liens disclosed to Parent as set forth on Section 1.1(iv) of the Company Disclosure Letter, (viii) interests of any lessor or lessee in any real properties and interests in real properties leased or operated by the Company or its Subsidiaries, (ix) transfer restrictions on any securities of the Company imposed by applicable Law, (x) in the case of any Contract entered into by the Company and/or its Subsidiaries, Liens that are restrictions on the transfer or assignment that are included in the terms such Contracts, (xi) Liens securing Indebtedness or liabilities that are reflected in the Company Reports, and (xii) any other Liens arising in the ordinary course of business unrelated to the borrowing of money and which would not, individually or in the aggregate, interfere materially with the ordinary course of the business of the Company and its Subsidiaries.

“Person” shall mean any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or Governmental Authority.

“Privacy Laws” shall mean (i) each Law related to the collection, use, processing, storage, protection, transfer or disposition of personal data (including any data or information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, consumer, household, computer or device), or otherwise relating to privacy, data protection and security, anti-spam, security breach notification requirements, (ii) the Company’s own data privacy and security rules, policies and procedures, (iii) industry standards that are applicable to the Company or its Subsidiaries or obligations under Contracts into which the Company or any of its Subsidiaries has entered, in each case, that relate to collection, use, processing, storage, protection, transfer or disposition of personal data (including any data or information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, consumer, household, computer or device).

“Representative” shall mean, with respect to any Person, any direct or indirect Subsidiary of such Person, or any Affiliate, officer, director, employee, investment banker, attorney, accountant or other authorized agent, advisor or representative of such Person or any direct or indirect Subsidiary of such Person.

“Required Financial Information” means the financial and business information of the Company and its Subsidiaries required under paragraph 6 of Exhibit C to the Debt Commitment Letter; provided that in no event shall the Required Financial Information be deemed to include, nor shall the Company be required to provide, pro forma financial statements, projections or other adjustments to the financial information of the Company or any of its Subsidiaries.

“Rights Agreement” shall mean the Bonus Rights Agreement, dated as of June 7, 2016, between the Company and American Stock Transfer & Trust Company, LLC, as rights agent, as amended from time to time.

“Sanctioned Country” means any country or region that is or has in the past five years been the subject or target of a comprehensive embargo under Sanctions and Export Control Laws (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine).

“Sanctions and Export Control Laws” means all Laws relating to economic or trade sanctions and export and import controls (including the U.S. Export Administration Regulations and the International Traffic in Arms Regulations) administered or enforced by the United States (including by OFAC or the U.S. Department of State), Israel, the United Nations Security Council, and the European Union.

“Sanctioned Person” means any individual or entity that is the subject or target of sanctions or restrictions under Sanctions and Export Control Laws, including: (i) any individual or entity listed on any applicable U.S., Israeli or E.U. sanctions- or export-related restricted party list, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List and the EU Consolidated List; (ii) any entity that is, in the aggregate, 50 percent or greater owned, directly or indirectly, or otherwise controlled by a person or persons described in clause (i); or (iii) any national located in a Sanctioned Country.

“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act” shall mean the United States ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.

“SEC” shall mean the United States Securities and Exchange Commission or any successor thereto.

“Securities Act” shall mean the United States Securities Act of 1933.

“Software” shall mean software and computer programs, whether in source code or object code form, and including (a) databases and collections of data, (b) software implementations of algorithms, models, and methodologies, firmware and application programming interfaces and (c) descriptions, schematics, specifications, flow charts and other work product used to design, plan, organize and develop any of the foregoing.

“Subsidiary” of any Person shall mean any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or indirectly owned or controlled by the first Person and/or by one or more of its Subsidiaries.

“Superior Proposal” shall mean any written bona fide Acquisition Proposal received after the date of this Agreement which the Company Board determines in good faith (after consultation with the Company’s financial advisers and outside legal counsel), considering such factors as the Company Board considers to be appropriate (including, among other things, if appropriate, financing contingencies, regulatory approvals, shareholder litigation, the identity of the third party making the Acquisition Proposal (including whether shareholder approval of such third party is required), breakup fee and expense reimbursement provisions), is (i) on terms that, if consummated, are more favorable to the Company and the Company Shareholders than the Merger and (ii) reasonably capable of being consummated in accordance with its proposed terms; provided, however¸ that, for purposes of this definition of “Superior Proposal,” the term “Acquisition Transaction” shall have the meaning assigned to such term herein, except that the references to “twenty-five percent (25%)” in such definition shall be deemed to be references to “fifty-one percent (51%)”.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) shall mean all Israeli, U.S. federal, state, local and non-U.S. taxes, charges, fees, imposts, levies or other assessments which are imposed by a Taxing Authority, including all income, franchise, gross receipts, capital, capital stock, ad valorem, social security, social insurance, severance, stamp, occupation, payroll, sales, employment, unemployment, disability, use, property, escheat, abandoned and unclaimed property, withholding, excise, production, value added, occupancy and other taxes, duties, fees, charges or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions.

“Taxing Authority” means the United States Internal Revenue Service, the ITA or any other Governmental Authority (whether state, local or non-U.S.) responsible for the administration of any Tax.

“Valid Tax Certificate” means a valid certificate, ruling or any other written instructions regarding Tax withholding, issued by the ITA in form and substance reasonably satisfactory to Parent, that is applicable to the payments to be made pursuant to this Agreement stating that no withholding, or reduced withholding, of Tax is required under Israeli law with respect to such payment or providing other instructions regarding such payment or withholding (including transfer of the withholding Tax amount to a trustee). For the sake of clarity, (i) the Withholding Tax Ruling and the Options Tax Ruling (and the Interim Option Tax Ruling, if applicable) and (ii) a certification pursuant to the Israel Income Tax Regulations (Withholding from Consideration, Payment or Capital Gain in the Sale of a Security, Sale of a Unit in a Mutual Fund or in a Future Transaction), 5763-2002 will be considered Valid Tax Certificates.

Section 1.2             Certain Interpretations(a).

(a)                Unless otherwise indicated, all references herein to Articles, Sections, Annexes, Exhibits or Schedules, shall be deemed to refer to Articles, Sections, Annexes, Exhibits or Schedules of or to this Agreement, as applicable.

(b)               Unless otherwise indicated, the words “include,” “includes” and “including,” when used herein, shall be deemed in each case to be followed by the words “without limitation.”

(c)                Unless otherwise indicated, the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

(d)               The table of contents and headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof.

(e)                Unless otherwise indicated or the context otherwise requires, all references herein to the Subsidiaries of a Person shall be deemed to include all direct and indirect Subsidiaries of such Person.

(f)                Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.

(g)                Unless otherwise indicated, terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa.

(h)               Unless otherwise indicated, the terms “Dollars” and “$” mean U.S. dollars.

(i)                 Unless otherwise indicated, the term “NIS” means Israeli New Shekels.

(j)                 When used herein, the word “extent” and the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such word or phrase shall not simply mean “if.”

(k)               Unless otherwise indicated, references herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and assigns; provided, that nothing contained in this Section 1.2(k) is intended to authorize any assignment or transfer not otherwise permitted by this Agreement;

(l)                 Unless otherwise indicated, references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity.

(m)             Unless otherwise indicated, references herein to any Law shall be deemed to refer to such Law as amended, modified, codified, reenacted, supplemented or superseded in whole or in part and in effect from time to time, and also to all rules and regulations promulgated thereunder (provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references to any Law shall be deemed to refer to such Law, as amended, as of such date).

(n)               Unless otherwise indicated, references herein to any Contract mean such Contract as amended, supplemented or modified (including any waiver thereto) in accordance with the terms thereof (provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references to any Contract shall be deemed to refer to such Contract, as amended, as of such date).

(o)               The Company Disclosure Letter may include items and information the disclosure of which is not required either in response to an express disclosure requirement contained in a provision of this Agreement or as an exception to one or more representations or warranties contained in ‎‎ARTICLE III or to one or more covenants contained in ‎‎ARTICLE V. Inclusion of any items or information in the Company Disclosure Letter shall not (i) be deemed to be an acknowledgement or agreement that any such item or information (or any non-disclosed item or information of comparable or greater significance) is “material” or that, individually or in the aggregate, has had or would reasonably be likely to have Company Material Adverse Effect or to affect the interpretation of such term for purposes of this Agreement or (ii) be construed as an admission of liability under any Law.

(p)               Documents or other information and materials shall be deemed to have been “made available” by the Company if the Company has delivered such documents by email to Parent or its counsel, or posted such documents and information and other materials to the virtual data room managed by the Company or its Representatives, in each case, prior to the execution and delivery of this Agreement by the parties hereto.

(q)               Each of the parties hereto acknowledges that it has assessed the risk, uncertainties and benefits of the Merger and this Agreement to which it is a party and the transactions contemplated hereby, and that it has been represented by counsel during the negotiation and execution thereof and, therefore, acknowledges and agrees that, for purposes of interpreting this Agreement, no such party has had any preference in the design of the provisions thereof, and hereby expressly waives the application of any Law, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

ARTICLE II

THE MERGER

Section 2.1             The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the ICL, at the Effective Time, Merger Sub (as the target company (Chevrat Ha’Ya’ad) in the Merger) shall be merged with and into the Company (as the absorbing company (HaChevra Ha’Koletet) in the Merger). As a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the Surviving Company (the “Surviving Company”) and shall (a) become a wholly owned direct Subsidiary of Parent, (b) continue to be governed by the Laws of the State of Israel, (c) maintain a registered office in the State of Israel, and (d) succeed to and assume all of the rights, properties and obligations of Merger Sub and the Company in accordance with the ICL.

Section 2.2             The Closing. Unless this Agreement shall have been terminated in accordance with ‎‎ARTICLE IX, the closing of the Merger (the “Closing”) will occur at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Israel, at 10:00 a.m. (local time) not later than on the second (2nd) Business Day following the date on which each of the conditions set forth in ‎‎ARTICLE VIII is satisfied or, to the extent permitted by Law, waived by the party entitled to waive such condition (except for any conditions that by their nature can only be satisfied on the Closing Date, but subject to the satisfaction of such conditions or waiver by the party entitled to waive such conditions), or at such other time, date, location or means as the parties hereto shall mutually agree. The date on which the Closing occurs is referred to herein as the “Closing Date”.

 

Section 2.3             Effective Time. As soon as practicable after the determination of the date on which the Closing is to take place, each of the Company and Merger Sub shall (and Parent shall cause Merger Sub to), in coordination with each other, deliver to the Registrar of Companies of the State of Israel (the “Companies Registrar”) a notice of the contemplated Merger and the proposed date of the Closing on which the Companies Registrar is requested to issue a certificate evidencing the Merger in accordance with Section 323(5) of the ICL (the “Certificate of Merger”) after notice that the Closing has occurred is served to the Companies Registrar, which the parties shall deliver on the Closing Date. The Merger shall become effective upon the issuance by the Companies Registrar of the Certificate of Merger in accordance with Section 323(5) of the ICL (the time at which the Merger becomes effective is referred to herein as the “Effective Time”). For the avoidance of doubt, and notwithstanding any provision of this Agreement to the contrary, it is the intention of the parties hereto that the Merger being declared effective and that the issuance by the Companies Registrar of the Certificate of Merger in accordance with Section 323(5) of the ICL shall both occur on the Closing Date, as a condition to Closing.

Section 2.4             Effect of the Merger. The Merger shall have the effects set forth in the ICL and this Agreement. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, by virtue of, and simultaneously with, the Merger and without any further action on the part of Parent, Merger Sub, the Company or any shareholder of the Company, (i) Merger Sub shall be merged with and into the Company, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the Surviving Company, (ii) all the properties, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company, (iii) all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Company, and (iv) all the rights, privileges, immunities, powers and franchises of the Company (as the Surviving Company) shall continue unaffected by the Merger in accordance with the ICL.

Section 2.5             Memorandum and Articles of Association.

(a)                At the Effective Time, the Articles of Association of Merger Sub, as in effect immediately prior to the Effective Time, shall be the Articles of Association of the Surviving Company, until duly amended as provided therein or by applicable Law.

(b)               At the Effective Time, the Memorandum of Association of the Company, as in effect immediately prior to the Effective Time, shall be the Memorandum of Association of the Surviving Company until thereafter amended as provided therein or by applicable Law.

Section 2.6             Directors and Officers(a).

(a)                Directors. The parties shall take all actions necessary so that the director or directors of Merger Sub at the Effective Time shall, from and after the Effective Time, be appointed and serve as the director or directors of the Surviving Company until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be, in accordance with the Surviving Company’s articles of association.

(b)               Officers. At the Effective Time, the officers of the Company immediately before the Effective Time shall be the officers of the Surviving Company, until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be, in accordance with the Surviving Company’s articles of association.

Section 2.7             Effects on Share Capital(a). Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or the holders of any of the following securities, the following shall occur:

(i)                 Conversion of Company Shares. Each Ordinary Share, par value NIS 0.40 per share, of the Company (collectively, the “Company Shares”) issued and outstanding immediately prior to the Effective Time, other than Company Shares canceled pursuant to ‎‎Section 2.7(a)(ii), shall automatically be converted into and represent the right to receive Twenty-Three U.S. Dollars and Fifty Cents ($23.50) in cash (the “Merger Consideration”), without interest and less applicable Taxes required to be withheld (subject to ‎‎Section 2.13 and ‎‎Section 7.9), upon the surrender of the certificate representing such Company Share (or receipt of an “agent’s message” or other acceptable evidence of transfer if such Company Share is uncertificated) in the manner provided in ‎‎Section 2.8(c) (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit in the manner provided in ‎‎Section 2.10). The amount of cash each Effective Time Holder is entitled to receive shall be rounded to the nearest cent, and computed after aggregating all cash amounts for all Company Shares held by such Effective Time Holder.

(ii)               Parent-Owned Shares and Stock Held in Treasury. Each Company Share held in the treasury of the Company (dormant shares), together with any Company Shares reserved for future grants under the Company Share Plans, or owned by Parent or any direct or indirect wholly owned Subsidiary of the Company or of Parent immediately prior to the Effective Time, if any, shall be canceled and retired without any conversion or consideration paid in respect thereof and shall cease to exist.

(iii)             Share Capital of Merger Sub. Each Ordinary Share, of no par value, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be automatically and without further action converted into one validly issued, fully paid and non-assessable Ordinary Share, par value NIS 0.40, of the Surviving Company and such Ordinary Shares shall constitute the only outstanding share capital of the Surviving Company. Each certificate, if any, evidencing ownership of Ordinary Shares of Merger Sub immediately prior to the Effective Time, shall, as of the Effective Time, evidence ownership of Ordinary Shares of the Surviving Company.

(b)          Adjustment to the Merger Consideration. The Merger Consideration shall be adjusted appropriately to reflect the effect of any share split, reverse share split, share dividend (including any dividend or distribution of securities convertible into Company Shares), reclassification, combination, exchange of shares or other like change with respect to Company Shares occurring, or with a record date, on or after the date hereof and prior to the Effective Time, and such adjustment to the Merger Consideration shall provide to the holders of Company Shares the same economic effect as contemplated by this Agreement prior to such action.

(c)           Company Options.

(i)                 At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any Company Option, each Company Option that is outstanding and unexercised immediately prior to the Effective Time, whether or not vested, shall be canceled in exchange for the right to receive a lump sum cash payment (without interest) equal to the product of (i) the excess, if any, of (A) the Merger Consideration over (B) the exercise price per Company Share subject to such Company Option and (ii) the total number of shares underlying such Company Option (the “Option Consideration”), less applicable Taxes required to be withheld with respect to such payment (subject to ‎‎Section 2.13 and ‎‎Section 7.9). If the exercise price per Company Share subject to any Company Option is equal to or greater than the Merger Consideration, such Company Option shall be canceled without payment of consideration.

(ii)               With respect to Company Options, if any, that are outstanding but unvested immediately prior to cancellation of such unvested Company Options at the Effective Time as provided herein, the vesting schedule thereof shall, immediately prior to the Effective Time, be accelerated (and, in the case of unvested Company Options held by non-employee directors that are not scheduled to accelerate as a result of the Merger, only to the extent the Director Proposal is adopted at the Company Shareholders Meeting), such that all outstanding Company Options at such time shall become vested.

(iii)             From and after the Effective Time, all Company Options shall no longer be outstanding and shall cease to exist, and each holder of a Company Option shall cease to have any rights with respect thereto or arising therefrom, except the right to receive the Option Consideration payable hereunder.

(iv)             The amount of cash each Company Optionholder is entitled to receive for the Company Options held by such holder pursuant to this Section 2.7(c) shall be rounded to the nearest cent and computed after aggregating cash amounts for all Company Options held by such holder.

(d)           Company RSUs.

(i)                 At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any Company RSU, each Company RSU outstanding immediately prior to the Effective Time, whether or not vested, shall be canceled in exchange for the right to receive a lump sum cash payment (without interest) equal to the product of (i) the Merger Consideration multiplied by (ii) the number of Company Shares subject to such Company RSUs (the “RSUs Consideration”), less applicable Taxes required to be withheld with respect to such payment (subject to ‎‎Section 2.13 and ‎‎Section 7.9); provided, however, that, notwithstanding the foregoing, (A) the payment of any RSUs Consideration to U.S. persons shall be made in a manner that complies with Code Section 409A, including, if necessary, deferring the payment date until the date on which the Company RSUs would have been settled absent the transactions contemplated by this Agreement and (B) the payment of the RSU Consideration for Company RSUs (excluding any Company PSUs) that are both (i) outstanding but unvested immediately prior to the Effective Time and (ii) do not become vested immediately prior to or upon the Effective Time under the terms and conditions (including any provisions regarding vesting acceleration) that apply to such Company RSUs, including due to any action of the Compensation Committee of the Company Board or the Company Board (or, in the case of unvested Company RSUs held by non-employee directors that are not scheduled to accelerate as a result of the Merger, only to the extent the Director Proposal is adopted at the Company Shareholders Meeting) or as otherwise set forth in Section 2.7(d) of the Company Disclosure Letter (such Company RSUs, the “Unvested RSUs” and the RSU Consideration payable in respect thereof, the “Contingent RSU Consideration”), shall not be paid at the Effective Time and shall instead be paid on the same vesting schedule and subject to the same vesting conditions that governed such Unvested RSUs immediately prior to the Effective Time. For the avoidance of doubt, in the event that the original vesting conditions are not satisfied as of the holder’s termination of employment or other service relationship with the Company, the holder shall cease to be entitled to any further payments on account of the Unvested RSUs. No later than five (5) Business Days prior to the Closing Date, the Company shall prepare and deliver to Parent an allocation schedule which shall set forth the following information with respect to the Unvested RSUs: (a) the name of each holder of Unvested RSUs, (b) the total number of Unvested RSUs issued or granted to such holder, (c) the vesting schedule for each Unvested RSU, and (d) the applicable settlement or payment date for each Unvested RSU that is treated as “nonqualified deferred compensation” for purposes of Section 409A of the Code.

(ii)               It is hereby further agreed that any Company RSUs that are subject to performance criteria (“Company PSUs”) shall be deemed earned and vested as follows: (i) with respect to any Company PSUs (2018) and Company PSUs (2019), any applicable performance-based vesting requirements shall be deemed to be fully achieved immediately prior to the Effective Time at the target level of achievement, and (ii) with respect to any Company PSUs (Revenues), any applicable performance-based vesting requirements shall be deemed to be fully achieved immediately prior to the Effective Time at the target level of achievement for 2019.

(iii)             From and after the Effective Time, all Company RSUs shall no longer be outstanding and shall automatically cease to exist, and each holder of a Company RSU shall cease to have any rights with respect thereto or arising therefrom, except the right to receive the RSUs Consideration payable hereunder.

(iv)         The amount of cash each Company RSUs Holder is entitled to receive for the Company RSUs held by such holder pursuant to this Section 2.7(d) shall be rounded to the nearest cent and computed after aggregating cash amounts for all Company RSUs held by such holder.

(e)            Termination of Company Share Plans. As of the Effective Time, the Company shall take all actions reasonably required to terminate (i) the Company Share Plans and (ii) any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the share capital of the Company or its Subsidiaries.

Section 2.8             Payment Procedures(i).

(a)            Paying Agent; Information Agent. Prior to the Effective Time (but in no event later than three (3) Business Days prior to the Closing Date), Parent shall (i) enter into and deliver to Company an agreement with the Paying Agent in a form to be agreed by the Company and Parent (“Paying Agent Agreement”); and (ii) at the request of the Company, engage an information agent reasonably acceptable to the Company and Parent (the “Information Agent”) to assist, inter alia, in obtaining any requisite residency certificate and/or other declaration for Israeli Tax withholding purposes and/or a Valid Tax Certificate, as applicable, and, in connection therewith, shall enter into an agreement with the Information Agent in a form reasonably satisfactory to the Company.

(b)               Exchange Fund. On or prior to the Closing Date (and, in any event, prior to obtaining the Certificate of Merger), Parent shall deposit (or cause to be deposited) with the Paying Agent, for payment to (i) the holders of Company Shares (excluding (i) Company Shares issued upon exercise of Company 102 Options and held by the 102 Trustee at the Closing Date (“Company 102 Shares”) and (ii) Company RSUs), in respect of which Parent shall cause payment to be made by the Paying Agent in accordance with this ‎‎ARTICLE II, (ii) the holders of Company 102 Shares, Company 102 RSUs (other than Unvested RSUs), Company 102 Options and Company 3(i) Options, in respect of which Parent shall cause payment to be made by the Paying Agent to the 102 Trustee in accordance with this ‎‎ARTICLE II, and (iii) the holders of Company Options (other than Company 102 Options and Company 3(i) Options) and Company RSUs (other than Company 102 RSUs and Unvested RSUs), in respect of which Parent shall cause payment to be made by the Paying Agent to the Company (or the applicable engaging Subsidiary) pursuant to the provisions of this ‎‎ARTICLE II, an amount of cash equal to the aggregate consideration to which such holders of Company Shares (including Company 102 Shares), Company Options (including Company 102 Options and Company 3(i) Options) and Company RSUs (including Company 102 RSUs but excluding Unvested RSUs) become entitled under this ‎‎ARTICLE II (such cash amounts being referred to herein as the “Exchange Fund”). Parent shall be responsible for all fees and expenses of the Paying Agent. The Exchange Fund, once deposited with the Paying Agent, shall, pending its disbursement to the holders of Company Shares (other than the Company 102 Shares and Company 102 RSUs), the Company (or, if applicable, the relevant engaging Subsidiary) for the benefit of holders of Company Options (other than the Company 102 Options and Company 3(i) Options) and Company RSUs (other than Company 102 RSUs and Unvested RSUs)) and the 102 Trustee (for the benefit of holders of Company 102 Shares, Company 102 RSUs, Company 102 Options and Company 3(i) Options), be held in trust for the benefit of such holders and shall not be used for any other purpose. The Exchange Fund shall be invested by the Paying Agent, as directed by Parent or the Surviving Company, in short term obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America with maturities of no more than thirty (30) days. Any interest and other income resulting from such investments shall be paid to Parent. To the extent that there are any losses with respect to any investments of the Exchange Fund, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to promptly pay the cash amounts contemplated by this ‎‎ARTICLE II, Parent shall, or shall cause the Surviving Company to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to satisfy Parent’s obligations under this ‎‎ARTICLE II.

(c)                Payment Procedures with respect to Company Shares. Promptly following the Effective Time, and in any event within two (2) Business Days thereafter, Parent and the Surviving Company shall cause the Paying Agent to mail or deliver to each holder of record (as of immediately prior to the Effective Time) of (i) a certificate or certificates (the “Certificates”) which immediately prior to the Effective Time represented outstanding Company Shares and (ii) uncertificated Company Shares (the “Uncertificated Shares”), in each case, whose shares were converted into the right to receive the Merger Consideration pursuant to ‎‎Section 2.7(a)(i) and other than Company 102 Shares (A) a letter of transmittal in customary form (which shall be approved by the Company and shall specify that delivery shall be effected, and risk of loss and title to the Company Shares shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in ‎‎Section 2.10) or transfer of the Uncertificated Shares, as the case may be, to the Paying Agent), (the “Letter of Transmittal”), (B) a declaration and/or a Valid Tax Certificate (or such other forms as are necessary under any applicable Tax Law) in which the beneficial owner of Company Shares provides certain information necessary for Parent to determine whether any amounts need to be withheld from the Merger Consideration payable to such beneficial owner pursuant to the terms of the Ordinance (in each case, subject to the provisions of this ‎‎Section 2.8, ‎Section 2.13 and ‎Section 7.9), the Code, or any applicable provision of state, local, Israeli or foreign Law, and/or (C) instructions for use in effecting the surrender of the Certificates and Uncertificated Shares in exchange for the Merger Consideration payable in respect thereof pursuant to the provisions of this ‎‎ARTICLE II (including customary provisions with respect to delivery of an “agent’s message” with respect to Uncertificated Shares). Upon surrender of Certificates (or affidavit of loss in lieu thereof as provided in ‎‎Section 2.10) for cancellation to the Paying Agent, together with the Letter of Transmittal and the declaration for Tax withholding purposes and/or a Valid Tax Certificate (and such other documents as may be reasonably required by the Paying Agent or Parent consistent with customary practice), duly completed and validly executed in accordance with the instructions thereto, the holders of such Certificates shall be entitled to receive in exchange therefor an amount in cash equal to the Merger Consideration to which the holder thereof is entitled pursuant to ‎‎Section 2.7(a)(i) (less any applicable withholding Taxes payable in respect thereof subject to the provisions of ‎‎Section 2.13 and ‎‎Section 7.9), and the Certificates so surrendered shall forthwith be canceled. Upon receipt of an “agent’s message” by the Paying Agent in the case of a book-entry transfer of Uncertificated Shares, together with the declaration for Tax withholding purposes and/or a Valid Tax Certificate (and such other documents as may be reasonably required by the Paying Agent or Parent consistent with customary practice), duly completed and validly executed in accordance with the instructions thereto, the holders of such Uncertificated Shares shall be entitled to receive in exchange therefor an amount in cash equal to the Merger Consideration to which the holder thereof is entitled pursuant to ‎‎Section 2.7(a)(i) (other than Company 102 Shares) (less any applicable withholding Taxes payable in respect thereof subject to the provisions of ‎‎Section 2.13 and ‎‎Section 7.9), and the transferred Uncertificated Shares so surrendered shall forthwith be canceled. Parent shall cause the Paying Agent to accept such Certificates and transferred Uncertificated Shares upon compliance with the foregoing exchange procedures. Payments and deliveries to be made under this Agreement shall be made in U.S. dollars by check or wire transfer of immediately available funds to such address or bank accounts as shall be set forth in the Letter of Transmittal. Notwithstanding anything to the contrary in this ‎‎Section 2.8(c), any Merger Consideration payable in respect of Company 102 Shares shall be transferred by Parent to the Paying Agent and Parent shall cause the Paying Agent on the Closing Date to make payment of such Merger Consideration to the 102 Trustee for the benefit of the beneficial owners thereof, and such Merger Consideration shall be released by the 102 Trustee to the beneficial holders of such Company 102 Shares, in accordance with the requirements of Section 102 of the Ordinance and the Option Tax Ruling, if obtained.

(d)               Payment Procedures With Respect to Company Options and Company RSUs.

(i)                 Immediately after the Effective Time, Parent shall cause the Paying Agent to transfer the aggregate Option Consideration with respect to Company Options granted under Section 102(b)(2) and Section 102(b)(3) of the Ordinance (the “Company 102 Options”) and Company Options granted under Section 3(i) of the Ordinance (the “Company 3(i) Options”) and the aggregate RSU Consideration payable with respect to Company RSUs (other than Unvested RSUs) granted under Section 102(b)(2) and Section 102(b)(3) of the Ordinance (the “Company 102 RSUs”), to the 102 Trustee, on behalf of holders of (a) Company 102 Options and Company 102 RSUs, as the case may be, in accordance with Section 102 of the Ordinance and the Option Tax Ruling, if obtained (the “102 Amounts”) and (b) Company 3(i) Options in accordance with the Option Tax Ruling, if obtained (the “3(i) Amounts”). The 102 Amounts and 3(i) Amounts shall be held in trust by the 102 Trustee pursuant to the applicable provisions of Section 102 of the Ordinance (to the extent applicable) and the Option Tax Ruling, if obtained, and shall be released by the 102 Trustee, together with any interest earned thereon by virtue of the investment of such amounts by the 102 Trustee, in accordance with the terms and conditions of Section 102 of the Ordinance (to the extent applicable) and the Option Tax Ruling, if obtained.

(ii)               Immediately after the Effective Time, Parent shall cause the Paying Agent to promptly deposit the aggregate amount of funds payable in respect of Company Options (other than Company 102 Options and Company 3(i) Options) and Company RSUs (other than Unvested RSUs and Company 102 RSUs) pursuant to ‎‎Section 2.7(c) and ‎Section 2.7(d) with the Company or, if applicable, the relevant engaging Subsidiary, at one or more accounts designated by the Company prior to Closing for the benefit of the holders of Company Options (other than Company 102 Options and Company 3(i) Options) and Company RSUs (other than Unvested RSUs and Company 102 RSUs), which amounts shall be paid by the Company or, if applicable, the relevant engaging Subsidiary, to the respective holders thereof through the Company’s or, if applicable, the relevant engaging Subsidiary’s payroll system, subject to applicable withholdings, as soon as practicable, but no later than the first payroll run of the Company (or the relevant engaging Subsidiary) after the Effective Time.

(iii)             Parent shall cause the payment of the Contingent RSU Consideration, if any, to be paid on the same vesting schedule and subject to the same vesting conditions that governed the Unvested RSUs immediately prior to the Effective Time by way of (i) with respect to Unvested RSUs granted under Section 102(b)(2) and Section 102(b)(3) of the Ordinance (the “Company 102 Unvested RSUs”), payment to the 102 Trustee, on behalf of holders of Company 102 Unvested RSUs, which shall be held in trust and released by the 102 Trustee, together with any interest earned thereon by virtue of the investment of such amounts by the 102 Trustee, in accordance with the terms and conditions of Section 102 of the Ordinance and the Option Tax Ruling, if obtained, and (ii) with respect to all other Unvested RSUs, payment to the Company (or, if applicable, the relevant engaging Subsidiary), which amounts shall be paid by the Company (or, if applicable, the relevant engaging Subsidiary) to the respective holders thereof through the Company’s or, if applicable, the relevant engaging Subsidiary’s payroll system, subject to applicable withholding Tax, as soon as practicable, but no later than the first payroll run of the Company (or the relevant engaging Subsidiary) after the applicable vesting schedule.

(e)                Transfers of Ownership. In the event that a transfer of ownership of Company Shares is not registered in the share transfer books or ledger of the Company, or if the Merger Consideration is to be paid in a name other than that in which the Certificates or Uncertificated Shares surrendered in exchange therefor are registered in the share transfer books or ledger of the Company, the Merger Consideration may be paid to a Person other than the Person in whose name the Certificate or Uncertificated Share so surrendered is registered in the stock transfer books or ledger of the Company only if such Certificate or Uncertificated Shares is properly endorsed and otherwise in proper form for surrender and transfer and the Person requesting such payment has paid to Parent (or any agent designated by Parent) any transfer Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of such Certificate or Uncertificated Shares, or established to the satisfaction of Parent (or any agent designated by Parent) that such transfer Taxes have been paid or are otherwise not payable.

(f)                No Liability. Notwithstanding anything to the contrary set forth in this Agreement, none of the Paying Agent, Parent, Merger Sub, the Surviving Company or any other party hereto shall be liable to a holder of Company Shares for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(g)                Distribution of Exchange Fund to Parent. Any portion of the Exchange Fund that remains undistributed to the holders of the Certificates or Uncertificated Shares on the date that is twelve (12) months after the Effective Time shall be delivered to Parent upon demand, and any holders of Company Shares that were issued and outstanding immediately prior to the Merger who have not theretofore surrendered their Certificates or Uncertificated Shares representing such Company Shares for exchange pursuant to the provisions of this ‎‎Section 2.8(g) shall thereafter look for payment of the Merger Consideration, without interest, payable in respect of the Company Shares represented by such Certificates or Uncertificated Shares solely to Parent, as general creditors thereof, for any claim to the applicable Merger Consideration to which such holders may be entitled pursuant to the provisions of this ‎‎ARTICLE II.

Section 2.9             No Further Ownership Rights in Company Shares. From and after the Effective Time, all Company Shares shall no longer be outstanding and shall automatically be cancelled, retired and cease to exist, and each holder of a Certificate or Uncertificated Shares theretofore representing any Company Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration payable therefor upon the surrender thereof in accordance with the provisions of ‎‎Section 2.8. From and after the Effective Time, there shall be no further registration of transfers on the records of the Surviving Company of Company Shares that were issued and outstanding immediately prior to the Effective Time, other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this ‎‎ARTICLE II. No dividends or other distributions with respect to capital stock of the Surviving Company with a record date on or after the Effective Time will be paid to the holder of any unsurrendered Company Shares.

Section 2.10         Lost, Stolen or Destroyed Certificates. In the event that any Certificates shall have been lost, stolen or destroyed, the Paying Agent shall pay the Merger Consideration in exchange for such lost, stolen or destroyed Certificates upon the making of an affidavit of that fact by the holder thereof and a reasonable and customary agreement by such holder to indemnify and hold Parent harmless from and against any losses in connection therewith, and, if reasonably required by Parent, posting by such holder of a bond sufficient to serve as indemnity against any claim that may be made against it with respect to such Certificate (such affidavit to be in a form attached to the Letter of Transmittal), and thereupon such holder shall be deemed for purposes hereof as if it held a Certificate at the Effective Time.

Section 2.11         No Interest. No interest shall accumulate on any amount payable in respect of any Company Shares or Company Options in connection with the Merger.

Section 2.12         Necessary Further Actions. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Company with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, the directors and officers of the Surviving Company are fully authorized in the name and on behalf of the Company and the Company Shareholders to take all such lawful and necessary action.

Section 2.13         Withholding Tax

(a)                Notwithstanding anything to the contrary hereunder, Parent, its Subsidiaries, the Company, its Subsidiaries, the Surviving Company, the 102 Trustee and the Paying Agent and any other third-party paying agent acting on their behalf (each a “Payor”) shall be entitled to deduct and withhold from any payment made pursuant to this Agreement (including the Merger Consideration and payments made pursuant to ‎‎Section 2.7(c) and Section 2.7(d)) and any consideration otherwise deliverable under this Agreement such amounts as each of such Payors reasonably determines it may be required to be deducted and withheld with respect to the making of such payment or delivery of consideration under the Withholding Tax Ruling and the Option Tax Ruling, if obtained, the Internal Revenue Code of 1986, as amended (the “Code”), the Ordinance, or under any provision of applicable state, local, Israeli or non-U.S. Tax Law; provided, however, that with respect to withholding of Israeli Tax, in the event any holder of record of Company Shares or Company Options provides the Payor with a Valid Tax Certificate issued by the Israel Tax Authority (the “ITA”) regarding the withholding (or exemption from withholding) of Israeli Tax from the consideration payable in respect thereof in accordance with this ‎‎ARTICLE II, or other treatment with respect to Israeli Tax, at least five (5) Business Days prior to any payment payable pursuant to this Agreement, then the deduction and withholding of any amounts under the Ordinance or any other provision of Israeli Law or requirement, if any, from the Merger Consideration or the Option Consideration, as applicable, payable to such holder of record of Company Shares or Company Options, as applicable, shall be made only in accordance with the provisions of such Valid Tax Certificate. To the extent amounts are so withheld, they shall be paid over to the appropriate Governmental Authority prior to the last day on which such payment is required. Withheld amounts that have been paid over to the appropriate Governmental Authority prior to the last day on which such payment is required shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. To the extent any Payor deducts or withholds any amounts with respect to Taxes (other than deduction or withholding with respect to compensatory payments to employees or service providers), such Payor shall provide the affected Person, as soon as practicable, with sufficient evidence regarding such deduction or withholding.

(b)               Notwithstanding the provisions of ‎‎Section 2.13(a) above and subject to any other provision to the contrary in the Withholding Tax Ruling, with respect to Israeli Taxes, the consideration payable to each Company Shareholder shall be retained by the Paying Agent for the benefit of each such Company Shareholder for a period of up to one hundred eighty (180) days from Closing (the “Withholding Drop Date”) unless Parent or Paying Agent is otherwise instructed explicitly by the ITA (during which time no Payor shall make any payments to any Company Shareholder or withhold any amounts for Israeli Taxes from the payments deliverable pursuant to this Agreement, except as provided below and during which time each Company Shareholder may obtain a Valid Tax Certificate). If a Company Shareholder delivers, no later than five (5) Business Days prior to the Withholding Drop Date a Valid Tax Certificate to Payor, then the deduction and withholding of any Israeli Taxes shall be made only in accordance with the provisions of such Valid Tax Certificate and the balance ‎of the payment that is not withheld shall be paid to such Company Shareholder concurrently therewith subject to any non-Israeli withholding which is applicable to the payment (if any). If any Company Shareholder (i) does not provide Payor with a Valid Tax Certificate, by no later than five (5) Business Days before the Withholding Drop Date, or (ii) submits a written request with Payor to release its portion of the consideration prior to ‎the Withholding Drop Date and fails to submit a Valid Tax Certificate at or before such time, then the amount to be withheld from such Company Shareholder’s portion of the consideration shall be calculated according to the applicable withholding rate as reasonably ‎determined by Parent in accordance with applicable Law, which amount shall be increased by the interest plus linkage differences as defined in Section 159A of the Ordinance for the time period between the fifteenth (15th) calendar day of the month following the month during which the Closing occurs and the time the relevant payment is made. Unless otherwise determined in the Withholding Tax Ruling, any withholding made in New Israeli Shekels with respect to payments made hereunder in Dollars shall be calculated based on a conversion rate in such manner as the Payor reasonably determines to be in compliance with applicable Law (but in any event not lower than the conversion rate on the Closing Date) and any currency conversion commissions will be borne by the applicable payment recipient and deducted from payments to be made to such payment recipient.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except (i) as disclosed in the disclosure letter delivered by the Company to Parent on the date of this Agreement (the “Company Disclosure Letter”) or (ii) as disclosed in the Company Reports filed or furnished prior to the date hereof (other than, in the case of clause (ii), any matters required to be disclosed for purposes of ‎Section 3.5 (Company Capitalization), clause (ii) of ‎Section 3.9 (Absence of Certain Changes and Section 3.22 (Brokers)) which matters shall be specifically disclosed in Section 3.5, 3.9 and 3.22 of the Company Disclosure Letter, respectively, and excluding, in the case of clause (ii), any disclosures contained under the heading of “Risk Factors” or “Forward-Looking Statements” or any other forward-looking disclosures that are predictive or primarily cautionary in nature), the Company hereby represents and warrants to Parent and Merger Sub as follows:

Section 3.1             Organization; Good Standing and Qualification. The Company (i) is a legal entity duly organized and validly existing under the Laws of the State of Israel and (ii) has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is qualified to do business in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification. The Company is not in violation of its Charter Documents in any material respects.

Section 3.2             Corporate Power; Enforceability. The Company has all requisite corporate power and authority to execute and deliver this Agreement, to perform its covenants and obligations hereunder and, subject to obtaining the approval of the holders of a majority of the Company Shares voted (in person or by proxy) on such matter (excluding any absentee votes and any other shares to be excluded pursuant to Section 320(c) of the ICL) at a meeting of the Company Shareholders duly called and held for such purpose (the “Company Shareholder Approval”) and the filing and recordation of appropriate merger documents as required by the ICL, to consummate the Merger and the other transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforceability (a) may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws of general applicability affecting or relating to creditors’ rights generally, and (b) is subject to general principles of equity (the “Bankruptcy and Equity Exception”). At a meeting duly called and held prior to the execution of this Agreement in compliance with the Memorandum of Association and Articles of Association of the Company (as amended, the “Charter Documents”) and the ICL, the Company Board has made the Company Board Recommendation.

Section 3.3             Non-Contravention. The execution and delivery by the Company of this Agreement do not, and the performance of its obligations hereunder will not, (a) subject to obtaining the Company Shareholder Approval, violate or conflict with any provision of the Charter Documents or equivalent documents of the Company Subsidiaries, (b) except for such Approvals set forth in ‎Section 3.3 of the Company Disclosure Letter, result in a violation or breach of any provision of, or constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation, payment, acceleration or revocation under, any Material Contract or Permit to which the Company or the Company Subsidiaries is a party or by which the Company or the Company Subsidiaries or any of their respective assets or properties may be bound or result in any disclosure or license or any requirement to make available to a third party any Company Source Code or other trade secrets of the Company or its Subsidiaries, (c) assuming the Approvals referred to in ‎Section 3.3 of the Company Disclosure Letter and the Approvals referred to in ‎‎Section 3.4 of this Agreement are obtained or made, and subject to obtaining the Company Shareholder Approval, violate or conflict with any Law or Order applicable to the Company or by which any of its properties or assets are bound, or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company, except in the case of each of clauses  (b), (c) and (d) above, for such violations, conflicts, defaults, terminations, accelerations or Liens which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Nothing in this Section 3.3 shall be construed as a representation or a warranty of the Company with respect to any Liability or consequences arising out of any action (i) by Parent or its Affiliates not contemplated under this Agreement or (ii) on or after the Closing Date, the Surviving Company, including as it relates to the Debt Financing or the consequences thereof or the Company’s compliance with Section 7.12 hereof.

Section 3.4             Required Governmental Approvals. No consent, clearance, approval or authorization of, or filing or registration with, or expiration or termination of any waiting period required by, or notification to (any of the foregoing being referred to herein as an “Approval”), any Governmental Authority is required on the part of the Company or its Subsidiaries in connection with the execution or delivery by the Company of this Agreement and the performance by the Company or its Subsidiaries of its obligations hereunder, other than (a) the OCS Notice, (b) the Approval under the HSR Act and any applicable Approvals under any other Antitrust Laws, or Approval thereby that the Merger is exempted from such Approval, in each case, as set forth in Section 3.4 of the Company Disclosure Letter, (c) the filing of the Merger Proposal with the Companies Registrar and all such other notices or filings required under the ICL with respect to the consummation of the Merger and the issuance of the Certificate of Merger by the Companies Registrar, (d) the filings and other Approvals as may be required under the Exchange Act, (e) the filings and other Approvals as may be required under the rules and regulations of Nasdaq, (f) any filings and other Approvals as may be required as a result of facts and circumstances relating solely to Parent and its Affiliates and (g) such other Approvals the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.5             Company Capitalization(a).

(a)       The registered (authorized) share capital of the Company consists of NIS 13,000,000 divided into 32,500,000 Company Shares, NIS 0.40 par value per share. At the close of business on February 19, 2019 (the “Capitalization Date”), (i) 21,855,004 Company Shares were issued and outstanding, (ii) 0 Company Shares were held by the Company in its treasury, (iii) there were outstanding Company Options to purchase 787,328 Company Shares, 1,490,448 outstanding Company RSUs and 570,846 Company Shares reserved for future grants under the Company Share Plans, and (iv) there were outstanding Rights (as defined in the Rights Agreement). Except as set forth above, at the close of business on the Capitalization Date, no shares or other voting securities of the Company were issued, reserved for issuance or outstanding. All outstanding Company Shares are, and all such shares that may be issued prior to the Effective Time will be when issued, duly authorized, validly issued, fully paid, nonassessable and free of any preemptive rights.

(b)               Section 3.5(b) of the Company Disclosure Letter lists each Company Option and Company RSU outstanding as of the Capitalization Date, the vesting schedule and number of each that are vested and unvested, the Company Share Plan under which such Company Option or Company RSU was issued, the number of Company Shares issuable thereunder and the exercise price (if applicable).

(c)                Except as set forth in this ‎‎Section 3.5, at the close of business on the Capitalization Date, there are (i) no outstanding shares of, or other equity or voting interest in, the Company, (ii) no outstanding securities of the Company or its Subsidiaries convertible into or exchangeable for shares of, or other equity or voting interest in, the Company, (iii) no outstanding options, warrants, calls, stock appreciation rights, phantom stock, rights or other Contracts to acquire from the Company or its Subsidiaries, or that obligates the Company or its Subsidiaries to issue, any shares of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of, or other equity or voting interest in, the Company, (iv) no obligations of the Company or its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any shares of, or other equity or voting interest (including any voting debt) in, the Company (the items in clauses (i), (ii), (iii) and (iv), together with the share capital of the Company and Company Options, being referred to collectively as “Company Securities”) and (v) no other obligations by the Company or its Subsidiaries to make any payments based on the price or value of any Company Securities.

(d)               The aggregate consideration payable for Company Shares, Company Options and Company RSUs outstanding as of the date hereof under ARTICLE II (and, for the sake of clarity, excluding any Contingent RSU Consideration payable hereunder and any amount payable with respect to such securities if and to the extent permitted under Section 5.1 of the Company Disclosure Letter) shall not exceed $551,563,909 (“Aggregate Consideration”), with such Aggregate Consideration consisting of amounts not to exceed (1) $513,592,594 with respect to holders of the Company Shares outstanding as of the date hereof, (2) $11,211,367 with respect to holders of Company Options outstanding as of the date hereof and (3) $26,759,948 with respect to holders of Company RSUs outstanding as of the date hereof; provided, that, the Company shall not be deemed to have breached this Section 3.5(d) (A) solely by virtue of proper exercises of Company Options and/or vesting of Company RSUs outstanding as of the date of this Agreement in accordance with their terms, so long as the net effect of such exercise or vesting does not increase the Aggregate Consideration (after taking into account the payment of the exercise price of the Company Options and the impact of any net settlement of Company Options), (B) to the extent there are changes to the relative portion of the Aggregate Consideration set forth in each of clauses (i), (ii) and (iii) of this Section 3.5(c), so long as such changes do not increase the Aggregate Consideration (after taking into account the payment of the exercise price of the Company Options to the Company) or (C) for the sake of clarity, by virtue of changes in the amount of the Contingent RSU Consideration as a result of the vesting of Company RSUs following the date hereof.

(e)                Other than the Charter Documents and the Rights Agreement, the Company is not a party to any agreement relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect to any securities of the Company.

Section 3.6             Subsidiaries

(a)        The sole Subsidiaries of the Company are as set forth in Section 3.6 of the Company Disclosure Letter (the “Company Subsidiaries”). All of the issued and outstanding capital stock of such Subsidiaries are duly authorized, validly issued, fully paid and nonassessable and owned by the Company, free and clear of any Liens (other than Permitted Liens). Except as set forth in Section 3.6 of the Company Disclosure Letter, there are (i) no outstanding shares of, or other equity or voting interest in, any Company Subsidiary, (ii) no outstanding securities of the Company or its Subsidiaries convertible into or exchangeable for shares of, or other equity or voting interest in, any Company Subsidiary, (iii) no outstanding options, warrants, calls, stock appreciation rights, phantom stock, rights or other Contracts to acquire from the Company or its Subsidiaries, or that obligates the Company or its Subsidiaries to issue, any shares of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of, or other equity or voting interest in, any Company Subsidiary, (iv) no obligations of the Company or its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any shares of, or other equity or voting interest (including any voting debt) in, any Company Subsidiary (the items in clauses (i), (ii), (iii) and (iv), being referred to collectively as “Subsidiary Securities”) and (v) no other obligations by the Company or its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities.

(b)               The Company has no share capital, membership interests, partnership interests, interests in any corporation or other entity (including partnership, limited liability company and other business association) other than the Company Subsidiaries or other equity interests in any Person (other than the Company Subsidiaries).

(c)                Each of the Company Subsidiaries (i) has been duly organized and is validly existing; (ii) is, where such concept is recognized, in good standing under the applicable Laws of the jurisdiction of its organization; (iii) is duly qualified to do business and, where such concept is recognized, is in good standing as a foreign entity in all jurisdictions in which the conduct of its business or the activities it is engaged makes such licensing or qualification necessary; and (iv) has all corporate power and authority required to carry on its business as currently conducted, except, in the case of clause (iii), where the failure to be so qualified and in good standing would not reasonably be expected to have a Company Material Adverse Effect.

(d)               Except as set forth in Section 3.6(d) of the Company Disclosure Letter, no Company Subsidiary owns any equity interests in any other Person.

Section 3.7             Company Reports; Financial Statements

(a)                Since December 31, 2016, the Company has timely filed or furnished all forms, reports and documents with the SEC that have been required to be filed or furnished by it under applicable Laws (all such forms, reports and documents, including exhibits and schedules, filed or furnished since December 31, 2016, together with any amendments thereto, the “Company Reports”). As of its filing or furnishing date (or, if amended or superseded by a filing or furnishing prior to the date of this Agreement, on the date of such amended or superseded filing or furnishing), (a) each Company Report complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, each as in effect on the date such Company Report was filed or furnished, and (b) each Company Report did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received by the Company from the SEC with respect to any of the Company Reports. No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any Company Report, except as disclosed in certifications filed with the Company Reports.

(b)               The consolidated financial statements of the Company and its Subsidiaries included in the Company Reports filed prior to the date hereof with the SEC (the “Financial Statements”) fairly present, in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (subject, in the case of unaudited interim statements, to normal year-end adjustments), in each case in accordance with GAAP consistently applied during the periods and at the dates involved (except as may be indicated therein or as otherwise permitted). The Company Subsidiaries are not subject to periodic reporting requirements of the Exchange Act.

(c)                The Company maintains “disclosure controls and procedures” (as such terms are defined in Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the Company’s management, as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.

(d)               The Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15 or 15d-15 under the Exchange Act) which is designed to provide reasonable assurance (i) regarding the reliability of financial reporting and the preparation of Financial Statements for external purposes in accordance with GAAP, (ii) that receipts and expenditures are executed in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that would materially affect the Financial Statements.

(e)                Since December 31, 2015, neither the Company nor any of the Company Subsidiaries (including any officers thereof and, to the Knowledge of the Company, any other employee thereof) nor, to the Knowledge of the Company, the Company’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company and the Company Subsidiaries or (ii) any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company and the Company Subsidiaries, except, in each case, as would not be reasonably expected to be material to the Company and the Company Subsidiaries, taken as a whole.

(f)                Section 3.7(f) of the Company Disclosure Letter contains a true and correct list of all Indebtedness of the Company and its Subsidiaries as of the date hereof. The Company is not the recipient of any vendor advances as of the date hereof from any supplier of the Company.

Section 3.8             No Undisclosed Liabilities. The Company has no Liabilities of any nature (whether accrued, absolute, contingent or otherwise) required to be reflected or reserved against on a consolidated balance sheet of the Company and its Subsidiaries prepared in accordance with GAAP, other than (a) Liabilities included or incorporated by reference in the Company Balance Sheet or Company Reports, (b) Liabilities permitted by or arising under this Agreement or incurred in connection with the transactions contemplated by this Agreement, (c) Liabilities incurred since the Company Balance Sheet Date in the ordinary course of business (none of which related to Liabilities resulting from breach of Contract, breach of warranty, product liability claim, tort claim, infringement claim, violation of applicable Law or any Legal Proceeding), (d) Liabilities that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and (e) executory obligations under any Contract (none of which is a Liability for a material breach thereof).

Section 3.9             Absence of Certain Changes. (i) Since the Company Balance Sheet Date through the date hereof, except for actions taken or not taken in connection with the transactions contemplated by this Agreement, the business of the Company and its Subsidiaries has been conducted, in all material respects, in the ordinary course, (ii) since the Company Balance Sheet Date through the date hereof, there has not been any Change that constitutes a Company Material Adverse Effect, (iii) since December 31, 2017 through the Company Balance Sheet Date, there has not been any Change that constitutes a Company Material Adverse Effect, and (iv) since the Company Balance Sheet Date through the date hereof, neither the Company nor any Company Subsidiary has taken any action that, if taken after the date hereof and prior to the Closing, would violate clauses (ii), (iii), (iv), (vi), (vii), (viii), (ix), (x), (xi), (xiv) or (xv) of ‎Section 5.1(b) (after taking into account the qualifications set forth in the first paragraph of Section 5.1(b)).

Section 3.10         Material Contracts. For all purposes of and under this Agreement, a “Material Contract” of the Company or its Subsidiaries shall mean (except for this Agreement):

(i)                 any Contract listed as an exhibit to the Company’s annual report on Form 20-F for the year ending December 31, 2017 or that would be required to be filed by the Company as a “material contract” pursuant to Item 19 of Form 20-F;

(ii)               any Contract that both requires payments from or to the Company of more than $500,000 during any twelve (12) month period and is not cancelable by the Company or its Subsidiaries without any material financial or other penalty on ninety (90) or fewer days’ notice;

(iii)             any Contract that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which the Company or its Subsidiaries owns (i) more than 20% voting or (ii) economic interest with a book value of more than $250,000 without regard to percentage voting or economic interest;

(iv)             any Contract (other than any Contract whose only parties are the Company and/or its Subsidiaries) relating to Indebtedness for borrowed money owing or guaranteed by the Company or its Subsidiaries, other than any Contract relating to Indebtedness with an outstanding principal amount of less than $500,000 (whether incurred, assumed, guaranteed or secured by any asset);

(v)               any Contract under which the Company or its Subsidiaries has made any advance, loan, extension of credit or capital commitment to, or other investment in, any Person (other than the Company or its Subsidiaries and except for any extensions of trade credits in the ordinary course of business in excess of $500,000);

(vi)             any Contract (A) that contains a license granted to or by the Company or any of its Subsidiaries in respect of Intellectual Property Rights (except for (1) licenses of unmodified commercially available, off-the-shelf, click-wrap or shrink-wrap software (a) for the Company’s internal business purposes or otherwise not integrated with or embodied in Company Products, with an annual fee, royalty, or other consideration of no more than $250,000, or (b) with an annual fee, royalty, or other consideration of no more than $50,000, (2) non-disclosure or confidentiality agreements on terms consistent with past practice, (3) non-exclusive licenses of Intellectual Property Rights incidental to the sale or purchase by the Company or its Subsidiaries of tangible products or services (excluding Software) in the ordinary course of business, (4) non-exclusive licenses of Intellectual Property Rights granted to customers in the ordinary course of business, or (5) licenses of Open Source Software) or (B) for the development (by or for the Company or any of its Subsidiaries or through a third party), escrow of any Company Source Code (excluding customer agreements which include escrow placement obligations entered into by the Company or its Subsidiaries with customers in the ordinary course of business), or the acquisition of any Intellectual Property Rights that, individually or in the aggregate, are material to the business of the Company or any of its Subsidiaries, taken as a whole;

(vii)           any Contract to which the Company is a party that contains (A) any continuing covenant by the Company to not compete or engage in any line of business or to not engage in its business in any geographic location, or (B) “most favored nation,” “exclusivity” or similar provisions, in each case other than such Contracts that (x) may be cancelled without material Liability to the Company or its Subsidiaries upon notice of ninety (90) days or less or (y) are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole;

(viii)         any Contract that is a settlement of Legal Proceedings or similar agreement that imposes obligations on the Company or any of the Company Subsidiaries after the date of this Agreement, which obligations are material to the Company and the Company Subsidiaries taken as a whole;

(ix)             any collective bargaining agreement or other Contract with any labor or trade union, works council or other labor organization;

(x)               any Contract with a Major Customer or Major Vendor;

(xi)             any Contract relating to an acquisition, divestiture, merger or similar transaction (A) that has continuing “earn-out” or other contingent payment obligations on the Company or any of its Subsidiaries or (B) that was entered into in the past three (3) years and involves consideration in excess of $5,000,000; and

(xii)           any material Contract between the Company or any Company Subsidiary, on the one hand, and, on the other hand, any present executive officer or director of either the Company or any of the Company Subsidiaries (other than agreements for the award of Company Options or Company RSUs under the Company Share Plans).

(b)               ‎‎Section 3.10(b) of the Company Disclosure Letter contains a list of all Material Contracts (other than any Material Contract contemplated by clause (i) of the definition thereof) to which the Company or any of its Subsidiaries is a party as of the date of this Agreement.

(c)                Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company and enforceable against the Company, in accordance with its terms, subject to the Bankruptcy and Equity Exception, (ii) neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of, or material default under, any such Material Contract, and (iii) as of the date hereof, the Company has not received written notice of any actual or potential violation of, or failure to comply with, any material term of, or written notice of an intention to cancel, not renew, or materially modify to the detriment of the Company or the Company Subsidiaries, any Material Contract.

Section 3.11         Real Property.

(a)                The Company does not own any real property.

(b)               The Company has valid leasehold interests in all of the real property leased or subleased to the Company (each, a “Lease”), free and clear of all Liens other than Permitted Liens, except where failure to so have valid interests would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Section 3.11(b) of the Company Disclosure Letter sets forth the address of each real property subject to the Leases, and a true and correct list of all Leases for each such real property. The Company has delivered to Parent a true and complete copy (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) of each of its material Leases.

(c)                Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Lease is valid and binding on the Company and enforceable against the Company, in accordance with its terms, subject to the Bankruptcy and Equity Exception, (ii) neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of, or material default under, any such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease, and (iii) the Company has not received written notice of any actual or potential violation of, or failure to comply with, any material term of any Lease.

Section 3.12         Personal Property. The Company is in possession of, and has good title to, or valid leasehold interests in or valid rights under contract to use, tangible personal properties and assets that are material to the Company and its Subsidiaries, taken as a whole, free and clear of all Liens other than Permitted Liens, except where failure to so have valid interests would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.13         Intellectual Property.  Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:

(a)                The Company and its Subsidiaries are, collectively, the sole and exclusive owners of all right, title, and interest in and to all Owned Intellectual Property Rights, free and clear of any Lien (other than Permitted Liens). The Licensed Intellectual Property Rights and the Owned Intellectual Property Rights together constitute all of the Intellectual Property Rights necessary to or used in the conduct of the respective businesses of the Company and its Subsidiaries as presently conducted.

(b)               To the Knowledge of the Company, all registrations and pending applications for registrations included in the Owned Intellectual Property Rights are or, upon registration, would be valid and subsisting;

(c)                The Company has taken commercially reasonable measures to protect the confidentiality of the material trade secrets that are owned by or exclusively licensed to the Company or any of its Subsidiaries and any confidential information of any Person to whom the Company owes a confidentiality obligation.

(d)               To the Knowledge of the Company, the conduct of the Company’s and its Subsidiaries’ respective businesses do not infringe, misappropriate, or otherwise violate, and have not in the last six (6) years infringed, misappropriated, or otherwise violated, the Intellectual Property Rights of any third party. Since December 31, 2016, neither the Company nor its Subsidiaries has received any written claim (i) challenging the use, validity, or enforceability, or ownership by the Company or its Subsidiaries, of any Owned Intellectual Property Rights or (ii) alleging an infringement, misappropriation or other violation by the Company or any of its Subsidiaries of the Intellectual Property Rights of any third party. Other than Section 3.19, this Section 3.13(d) is the only representation or warranty of non-infringement, misappropriation or other violation by the Company or any of its Subsidiaries of the Intellectual Property Rights of any third party.

(e)                To the Knowledge of the Company, no third party is infringing, misappropriating or otherwise violating any of the Owned Intellectual Property Rights.

(f)                All of the Company’s and its Subsidiaries’ employees, contractors and consultants who were or are engaged in the creation, development, modification, improvement or invention of any material Intellectual Property Rights by or on behalf of the Company or any of its Subsidiaries have entered into written agreements with the Company or one of its Subsidiaries assigning to the Company or any of its Subsidiaries, as applicable, all rights, title and interests in and to any such Intellectual Property arising out of such Person’s employment by, engagement by, or Contract with the Company or any of its Subsidiaries.

(g)                ‎‎‎Section 3.13(g) of the Company Disclosure Letter sets forth a list of all registrations of or pending applications for registration of Owned Intellectual Property Rights registered to, issued for or filed by the Company or any of its Subsidiaries, including, for each item listed, the record owner, jurisdiction and issuance, registration or application number and date, as applicable, of such item. As of the date hereof, no necessary registration, maintenance and renewal fees in connection with all such registrations of Owned Intellectual Property Rights are past due.

(h)               The Company and its Subsidiaries have not used any Open Source Software in or in connection with any Company Products in a manner that: (i) would obligate the Company or its Subsidiaries to disclose, make available, offer or deliver any portion of source code owned by the Company or its Subsidiaries or component thereof to any third party, (ii) require the Company to license any Company Products free of charge, or (iii) would prohibit the use of any material portion of any Software as it is used in the businesses of the Company or any of its Subsidiaries as of the date hereof.

(i)                 The Company and its Subsidiaries own and possess all source code for all Software that constitutes part of the Owned Intellectual Property Rights (the “Company Source Code”) and own or have valid licenses for all Company Products that consist of Software. Except as set forth on Section 3.13(i), neither the Company nor any of its Subsidiaries has licensed, granted any right, provided, or disclosed or made available to any Person, or allowed any Person to access or use, any Company Source Code, other than employees, contractors and consultants of the Company or any of its Subsidiaries that have confidentiality obligations to the Company or any of its Subsidiaries with respect to such Company Source Code (excluding customer agreements which include escrow placement obligations entered into by the Company or its Subsidiaries with customers in the ordinary course of business). Without limiting Section 3.10(vi), to the Knowledge of the Company, no Company Source Code used in any of the Company Products sold in the past three years is in escrow.

(j)                 In the last twenty-four (24) months, there have not been any material failures, breakdowns, or continued substandard performance affecting any Company IT Systems that have caused any material disruption or interruption to Company IT Systems or to the respective businesses of the Company or any of its Subsidiaries. Each of the Company and any of its Subsidiaries has taken commercially reasonable steps to provide for the back-up and recovery of data and information and commercially reasonable disaster recovery plans, procedures and facilities and, as applicable, have taken commercially reasonable steps to implement such plans and procedures. To the Knowledge of the Company, the Company IT Systems used by the Company or any of its Subsidiaries are sufficient for the operation of the respective businesses of the Company or any of its Subsidiaries as currently conducted in all material respects.

(k)               Each of the Company and its Subsidiaries complies and, in the past three years, has complied, in all material respects, with (and there no been any material violations of any) applicable Privacy Laws. To the Knowledge of the Company, there are not now, and in the prior twenty-four (24) months have not been, any facts or circumstances that would require the Company or its Subsidiaries to provide notice to any customer, supplier or other Person (including any Governmental Authority) of any actual, or perceived by the Company to be likely, data security breach pursuant to any applicable Privacy Law or any violation thereof. To the Knowledge of the Company, in the prior three years, there has been no unauthorized use, access, disclosure, intrusion, theft, or breach of security of (i) the Company IT Systems, or (ii) any personal or confidential information collected, processed, or stored by or on behalf of the Company or any of its Subsidiaries (collectively, “Private Information”) (or any unauthorized loss, destruction, compromise, or disclosure thereof). The Company has not received any written claim from any Person (including any Governmental Authority) in the past three years informing or threatening the Company of commencement of any proceeding against the Company or any of its Subsidiaries with respect to loss, damage, or unauthorized access, use or modification of any Private Information.

(l)                 No university, military, educational institution, research center, Governmental Authority, entity owned or controlled by any Governmental Authority, hospital, medical center or other institution (each, an “R&D Sponsor”) has sponsored or provided funding to the Company or any of its Subsidiaries for research and development conducted in connection with the business of the Company or any of its Subsidiaries for development of any Owned Intellectual Property Rights, where such funding (i) grants the R&D Sponsor any claim of right to, ownership of or other Lien (other than Permitted Liens) on any Owned Intellectual Property Rights, or (ii) otherwise adversely affects the right of the Company or of its Subsidiaries in such Owned Intellectual Property Rights or requires the Company or its Subsidiaries to make any payments by way of royalties, fees or otherwise to the R&D Sponsor. To the Company's Knowledge, no Person (including any current and former employee, consultant or independent contractor of the Company or any of its Subsidiaries) who is or was involved in, or who has contributed to, the creation or development of any of the Owned Intellectual Property Rights has performed services for, was an employee of, or was otherwise engaged (including as a graduate student) by any R&D Sponsor, during the time period in which such Person has contributed to the creation or development of Owned Intellectual Property Rights.

(m)             To the Knowledge of the Company, when properly installed (or accessed) and used, all Company Products perform in material conformance with their documentation. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has introduced any viruses, back doors, worms, Trojan horses or similar disabling codes or programs in any of the Company IT Systems or Company Products prior to delivery of such Company Products to customers, and, to the Knowledge of the Company, none such exist in the Company Products prior to delivery of such Company Products to customers.

Section 3.14         Tax Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:

(a)                the Company and its Subsidiaries (i) have properly completed and timely filed (taking into account any extensions of time in which to file) all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns and any amendments to any of the foregoing) relating to Taxes (“Tax Returns”) required to be filed with any Governmental Authority by the Company or such Subsidiary, and all such Tax Returns were true and correct in all material respects and (ii) have timely paid all Taxes due and payable (whether or not shown on such Tax Returns);

(b)               no deficiencies for any Taxes have been asserted in writing or assessed in writing against the Company or its Subsidiaries that are not subject to adequate reserves on the consolidated Financial Statements of the Company (in accordance with GAAP as adjusted in the ordinary course of business), nor has the Company or its Subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax, and there are no Liens (other than Permitted Liens) on any of the assets of the Company or any Subsidiary for Taxes;

(c)                no audit of any Tax Return of the Company or its Subsidiaries is presently in progress, nor has the Company or its Subsidiaries been notified in writing of any request for such an audit;

(d)               no action, suit, investigation, claim or assessment is pending or to the Company’s Knowledge threatened in writing against the Company or its Subsidiaries with respect to Taxes for which the Company or its Subsidiaries may be liable;

(e)                no unresolved claim has been made by a Governmental Authority in a jurisdiction where the Company and its Subsidiaries do not pay Taxes or file Tax Returns asserting that the Company or any of its Subsidiaries is subject to Taxes assessed by such jurisdiction;

(f)                neither the Company nor any of its Subsidiaries (i) has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or within the meaning of any similar provision of Law to which the Company or any of its Subsidiaries may be subject, other than the affiliated group of which the Company or a Subsidiary is the common parent or (ii) has any Liability for the Taxes of any Person (other than any of the Company or its Subsidiaries) under Treas. Reg. Section 1.1502-6 (or any similar provision of Law) as a transferee or successor, by contract or otherwise (other than pursuant to any agreements entered into in the ordinary course of business not primarily related to Taxes);

(g)                neither the Company nor any of its Subsidiaries has participated in a "reportable transaction" within the meaning of Treasury Regulation Section 1.6011-4(b) (or any similar or analogous provision of applicable state, local or non-U.S. Law);

(h)               neither the Company nor any of its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" within the meaning of Section 355(a)(1)(A) of the Code;

(i)                 neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (i) any change in method of accounting for a taxable period ending on or prior to the Closing Date, (ii) any use of an improper method of accounting for a taxable period ending on or prior to the Closing Date, (iii) any excess loss account described in Treasury Regulation under Code Section 1502 (or any corresponding or similar provision of Law); (iv) any installment sale made prior to the Closing Date; (v) any prepaid amount received or deferred revenue accrued on or prior to the Closing Date; or (vi) any election under Section 108(i) of the Code (or any corresponding or similar provision of Law);

(j)                 the Company and each of its Subsidiaries has properly (i) collected and remitted sales, use, value added and similar Taxes with respect to sales made to its customers or services provided to its customers to the extent required by applicable Law and (ii) for all sales or services that are exempt from sales, use, value added and similar Taxes and that were made without charging or remitting such Taxes, received and retained any appropriate Tax exemption certificates and other documentation qualifying such sale or service as exempt;

(k)               there are no Tax rulings, requests for Tax rulings (including any “taxation decision” (Hachlatat Misui) from the ITA), or closing agreements with Tax Governmental Authorities relating to Taxes to which the Company or its Subsidiaries is party;

(l)                 Section 3.14(l) of the Company Disclosure Letter lists all material Government Grants, including but not limited to Preferred Enterprise, Benefitted Enterprise and Approved Enterprise Status from the Investment Center, if any. There are no material outstanding financial liabilities of the Company or any of its Subsidiaries under such Government Grants (including any related Tax rulings). The Company and its Subsidiaries are in compliance in all material respects with the terms, conditions and requirements of their Government Grants and have duly fulfilled in all material respects all the undertakings relating thereto. As of the date hereof, neither the Company nor any of its Israeli Subsidiaries has retained earnings which would be subject to corporate Tax due to the distribution of a “dividend” from such earnings, as the term “dividend” is specifically defined by the ITA in the framework of the Law for the Encouragement of Capital Investment of 1959;

(m)             each of the Company Share Plans has received a favorable determination or approval letter from, or is otherwise approved by, the ITA in accordance with Section 102(b)(2) of the Ordinance. All Company 102 Shares, Company 102 Options and Company ▇▇▇ ▇▇▇▇ issued under the Company Share Plans have been granted and/or issued, as applicable, in compliance, in all material respects, with the applicable requirements of Section 102 of the Ordinance (including the relevant sub-section of Section 102 of the Ordinance) and the written requirements and guidance of the ITA, including, without limitation, the adoption of the applicable board and shareholders resolutions, the timely filing of the necessary documents with the ITA, the appointment of an authorized trustee to hold the Company 102 Shares, Company 102 Options and Company 102 RSUs, the receipt of all tax rulings from the ITA, the execution by each holder of Company 102 Shares, Company 102 Options and Company ▇▇▇ ▇▇▇▇ of an undertaking to comply with the provisions of Section 102 of the Ordinance, and the deposit of such Company 102 Shares, Company 102 Options and Company ▇▇▇ ▇▇▇▇ with the 102 Trustee pursuant to the terms of Section 102 of the Ordinance and the guidance published by the ITA on July 24, 2012 and on November 6, 2012. Section 3.14(m) of the Company Disclosure Letter lists, for each Company Option and Company RSU outstanding as of the Capitalization Date, whether each such Company Option or Company RSU was granted and is subject to Tax pursuant to Section 3(i) of the Ordinance or Section 102 of the Ordinance and the applicable sub-section of Section 102 of the Ordinance, and for Company 102 Options and Company ▇▇▇ ▇▇▇▇ the date of deposit of such Company Option with the 102 Trustee, including, only with respect to grants following July 24, 2012, also the date of deposit of the applicable board resolution and the date of deposit of the respective option agreement with the 102 Trustee;

(n)               neither the Company nor any of its Subsidiaries has performed or was part of any action or transaction that is classified as a “reportable transaction” under Section 131(g) of the Ordinance and the regulations promulgated thereunder or are subject to reporting obligations under Sections 131D and 131E of the Ordinance or similar provisions under the Israel Value Added Tax Law of 1975 and the Israeli Land Taxation Law (Appreciation and Acquisition) of 1963;

(o)               all material Taxes that the Company or any of its Subsidiaries is required by applicable Law or Contract to withhold or to collect from each payment made to any employee, contractor, consultant, shareholder or other person have been duly withheld and collected and have been duly and timely paid to the appropriate Governmental Authority. The Company and the Company’s Subsidiaries have complied, in all material respects, with all record keeping and reporting requirements in connection with amounts paid or owing to any employee, independent contractor, creditor or shareholder;

(p)               none of the Company’s Subsidiaries that is organized outside of Israel (i) is or has been an Israeli resident as defined in Section 1 of the Ordinance or (ii) has or has had any assets that principally comprise, directly or indirectly, assets located in Israel, in either case as determined in accordance with the Israeli Law relating to Taxes;

(q)               the Company is duly registered for the purposes of Israeli value added tax and has complied in all material respects with all requirements concerning Israeli value added taxes (“VAT”). Except as would not be material to the Company and its Subsidiaries, taken as a whole, the Company (i) has not made any exempt transactions (as defined in the Israel Value Added Tax Law of 1975) and there are no circumstances by reason of which there would not be an entitlement to full credit of all VAT chargeable or paid on inputs, supplies, and other transactions and imports made by it, (ii) if and to the extent applicable has collected and timely remitted to the relevant taxing authority all output VAT which it is required to collect and remit, to the extent required under any applicable Law and (iii) has not received a refund for input VAT for which it is not entitled under any applicable Law;

(r)                 to the Company’s Knowledge, the Company qualifies as an Industrial Company under the Law for the Encouragement of Industry (Tax), 1969.

(s)                neither the Company nor any of its Subsidiaries is subject to any restrictions or limitations pursuant to Part E2 of the Ordinance or pursuant to any Tax ruling made with reference to the provisions of such Part E2 or otherwise;

(t)                 neither the Company nor any of its Subsidiaries has been at any time a real property corporation (Igud Mekarke’in) within the meaning of such term under Section 1 of the Israeli Land Taxation Law (Appreciation and Acquisition), 5723-1963;

(u)               the Company and each of the Subsidiaries complies, and have always been compliant, with the requirements of Section 85A of the Ordinance and the regulations promulgated thereunder in all material respects. All intercompany transactions between the Company and the Subsidiaries have met in all material respects the requirements of Section 85A of the Ordinance and the regulations promulgated thereunder (or any corresponding provision of applicable state, local or non-U.S. Tax Law); and

(v)               in the past five (5) years, the ITA has not asserted in any audit or, to the Company’s Knowledge, threatened in writing to assert, that the net operating losses (“NOLs”) of the Company should be subject to limitation.

Nothing in this Section 3.14 shall be construed as a representation or a warranty of the Company with respect to (i) the amount or availability in a taxable period (or portion thereof) beginning after the Closing Date of any NOLs or other Tax attribute generated in a Tax period ending before the Closing or (ii) any Liability arising out of any action (or failure to act) by Parent, its Affiliates (including the Surviving Company) on or after the Closing Date (regardless of whether such action (or failure to act) is consistent with an action (or failure to act) by the Company or its Subsidiaries on or prior to the Closing Date), including as it relates to the Debt Financing or the consequences thereof.

Section 3.15         Employee Plans.

(a)                ‎‎Section 3.15(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material Employee Plan, other than any Contract under which a single individual (who is not an officer or director of the Company or any of its Subsidiaries) is eligible to receive immaterial compensation and/or benefits and that is terminable by the Company or its Subsidiaries at-will or with no more than three (3) months’ notice or pay in lieu thereof (or any additional period or payment as required by Applicable Law) without further liability or financial obligation, whether actual or contingent, to the Company or its Subsidiaries. With respect to each Employee Plan listed in ‎Section 3.15(a) of the Company Disclosure Letter, the Company has provided to Parent true and correct copies of (as applicable): (i) the current plan document, as amended thereto (and for any unwritten plan, a summary of the material terms); (ii) the most recent summary plan description or other summary provided, if any, to employees; (iii) the most recent determination, opinion or advisory letter received from the Internal Revenue Service with respect to each Employee Plan that is intended to be qualified under Code Section 401(a); and (iv) correspondence to or from any Governmental Authority related to such Employee Plan regarding any non-compliance, corrective actions, audits, investigations or inquiries.

(b)               Each Employee Plan has been established, maintained, funded, operated and administered in compliance with its terms and with all applicable Laws, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a current favorable determination letter from the Internal Revenue Service or may rely upon a current prototype opinion or advisory letter from the Internal Revenue Service, and, to the Company's Knowledge, nothing has occurred that would adversely affect the qualification of such Employee Plan. Each material Employee Plan providing compensation or benefits to employees of the Company or any of the Company Subsidiaries who are located outside of the United States that is required to be registered has been timely and properly registered. All material employer and employee contributions to each Employee Plan required by Law or by the terms of such Employee Plan have been timely made, or, if applicable, reserved or accrued in accordance with the Company’s accounting practices. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, all Employee Plans that are required to be funded are fully funded, or, if applicable, adequate reserves have been established with respect to any Employee Plan that is not required to be fully funded. No Employee Plan (i) is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA), seniority premium, termination indemnity, gratuity or similar plan or arrangement, or a multiemployer plan (as defined in Section 3(37) of ERISA), or (ii) provides retiree or post-termination health, life or other welfare benefits to any Person, other than as required by Law. Neither the Company nor any of the Company Subsidiaries has any current or future material Liability on account of at any time being considered a single employer with any other Person under Section 414 of the Code. Except as would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole, there is no Legal Proceeding (other than routine and undisputed claims for benefits) pending or, to the Knowledge of the Company, threatened with respect to any Employee Plan or against the assets of any Employee Plan. Neither the Company nor any of the Company Subsidiaries has incurred (whether or not assessed), or is reasonably expected to incur or to be subject to, any Tax or other penalty under Section 4980B, 4980D or 4980H of the Code.

(c)                Other than as set forth in ‎‎Section 3.15(b) of the Company Disclosure Letter, neither the execution or delivery by the Company of this Agreement nor the consummation of the transactions contemplated by this Agreement will (A) result in any payment or benefit becoming due or payable, or required to be provided, to any current or former director, employee or independent contractor of the Company or any of the Company Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such current or former director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (D) increase the amount of compensation due to any Person, , or (E) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.

(d)               No amount that is payable (whether in cash or property or the vesting of property) under an Employee Plan as a result of the consummation of the transactions contemplated by this Agreement to any employee, officer, director, shareholder or other service provider of the Company (whether current, former or retired) will, individually or in combination with any other such payment, be an "excess parachute payment" within the meaning of Section 280G of the Code that would not be deductible thereunder or would be subject to an excise tax under Section 4999 of the Code.

(e)                Neither the Company nor any of its Affiliates have any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to Tax under Sections 409A or 4999 of the Code.

(f)                Each Employee Plan, or other agreement or arrangement of the Company or any of its affiliates that constitute a "nonqualified deferred compensation plan" (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in accordance with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service, in all material respects.

Section 3.16         Labor Matters. 

(a)                Neither the Company nor any of its Subsidiaries is a party to, bound by or subject to any collective bargaining agreement, labor union Contract, or trade union agreement, other Contract or bargaining relationship with any labor organization or similar body (each a “Collective Bargaining Agreement”) or any extension order, except for national or sectoral Collective Bargaining Agreements and extension orders (tzavei harchava) applicable to all employees in Israel.

(b)               No Collective Bargaining Agreement is being negotiated by the Company or any of its Subsidiaries, and to the Knowledge of the Company, there are and since December 31, 2016 there have been no activities or proceedings of any labor or trade union or other labor organization to organize any employees of the Company or its Subsidiaries and there is no pending written demand for recognition from any collective bargaining representative with respect to any of the employees of the Company or its Subsidiaries.

(c)                Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Company and its Subsidiaries is not, and has not been since December 31, 2016, a member of any employers’ association or organization, (ii) each of the Company and its Subsidiaries has not paid, been required to pay or has been requested to pay any payment (including professional organizational handling charges) to any employers’ association or organization. There is not, and since December 31, 2016 there has not been, any strike, lockout, slowdown, or work stoppage or other material labor dispute against the Company or its Subsidiaries pending or, to the Knowledge of the Company, threatened.

(d)               Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and its Subsidiaries are, and since December 31, 2016 have been, in material compliance with applicable Laws and Orders with respect to employment (including applicable Laws regarding wage and hour requirements, discrimination in employment, immigration, employee layoffs, workers’ compensation, collective bargaining, labor relations, paid time off, employee leave, employee health and safety, obligations to provide statutory severance pay under the Israeli Severance Pay Law-1963 and vacation pursuant to the Israeli Annual Leave Law-1951).

(e)                Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries have received written notice of complaints, charges or claims against the Company or any of its Subsidiaries since December 31, 2016 and (ii) to the Knowledge of the Company, no such complaints, charges, investigation of any kind or claims are threatened, by or before any Governmental Authority or based on, arising out of, in connection with or otherwise relating to the employment or engagement or termination of employment.

(f)                Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each of the Company and its Subsidiaries (i) has withheld all amounts required by applicable Law or Contract to be withheld from the wages, salaries, and other payments to employees, and (ii) is not liable for any arrears of wages, salaries, wage premiums, commissions, bonuses, expense reimbursements, severance and other compensation that has come due and payable to current and former employees and other service providers under applicable Laws, Contracts, or company policy, or for any Taxes, or any penalty or fine for failure to comply with any of the foregoing.

(g)                Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all presently engaged independent contractors and consultants (“Contractors”) of the Company and its Subsidiaries are, and all independent contractors and consultants engaged since December 31, 2016 by the Company and its Subsidiaries (“Former Contractors”) were, rightly classified as independent contractors and would not reasonably be expected to be reclassified by any Governmental Authority as employees of the Company or any of its Subsidiaries, for any propose whatsoever, and (ii) all Contractors and Former Contractors have received all their rights to which they are and were entitled to according to any applicable legal requirements or Contract with the Company or any of its Subsidiaries. The Company and its Israeli Subsidiaries are not engaged with any personnel through manpower agencies.

(h)               Without derogating from any of the above representations, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company’s and its Israeli Subsidiaries’ Liability towards their Israeli employees regarding severance pay, accrued vacation and pension contributions required to be made under applicable Israeli Law to all Employee Plans are fully funded or, if not required to be funded, are accrued on the Financial Statements as of the date of such financial statements and (ii) the Section 14 arrangement under the Israeli Severance Pay Law, 1963 was properly applied in accordance with the terms of the general permit issued by the Israeli Minister of Labor regarding all current employees of the Company and its Israeli Subsidiaries’ who reside in Israel based on their full salaries and from their commencement date of employment.

Section 3.17         Compliance with Laws; Permits.

(a)                The Company and its Subsidiaries are in, and have since December 31, 2016 been in, compliance with (i) all Laws and Orders applicable to the Company (including the Foreign Corrupt Practices Act (15 U.S.C. §§ 78m(b), 78dd-1, 78dd-2, 78ff), Sections 291 and 291A of the Israeli Penal Law, 1977, or any other applicable Law related to anti-corruption or anti-bribery (but, in each case, only to the extent such applicable Law is applicable to the Company and its Subsidiaries)), and (ii) all permits, licenses, authorizations, consents, approvals and franchises from Governmental Authorities required to conduct their businesses as currently conducted (“Permits”), in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Since December 31, 2016, neither the Company nor any of its Subsidiaries has received any written notices of violation with respect to any Laws applicable to it, in each case other than as would not reasonably be expected to have a Company Material Adverse Effect.

(b)               No suspension or cancellation of any Permits is pending or, to the Knowledge of the Company, threatened, except for such non-possession, noncompliance, suspensions or cancellations that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.18         Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) the Company and its Subsidiaries are in, and have since December 31, 2016 been in, compliance with all Environmental Laws or environmental Permits, (ii) the Company and its Subsidiaries have not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, manufactured, distributed, exposed any Person to, or released any Hazardous Substance, including into the environment at any property that the Company currently leases, or owned or operated any property or facility contaminated by any Hazardous Substance, in material violation of Environmental Law or in a manner which has given or would rise to any Liability or investigatory, corrective or remedial obligations pursuant to Environmental Laws, (iii) the Company and its Subsidiaries have not received written notice, including any notice of any pending or threatened Legal Proceedings, alleging noncompliance with, or Liability under, any applicable Environmental Law; and (iv) neither the Company nor any of its Subsidiaries has assumed, undertaken, provided an indemnity with respect to, or otherwise become subject to, any Liability of any other Person relating to Environmental Laws.

Section 3.19         Litigation. Except as would not reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect or as would prevent or materially delay or seek to prevent or materially delay the consummation of the Merger (i) there is no, and since December 31, 2016 have been no, Legal Proceeding, or to the Knowledge of the Company, any investigations, pending against or threatened in writing against, the Company, its Subsidiaries or any of the properties of the Company or its Subsidiaries, or any present or former director of the Company or its Subsidiaries in such Person’s capacity as a director of the Company or its Subsidiaries, and (ii) there is no Order, whether civil, criminal or administrative, outstanding by which the Company or its Subsidiaries is bound, other than Orders of general applicability.

Section 3.20         Customers and Vendors. Section 3.20(a) of the Company Disclosure Letter lists the ten (10) largest customers of the Company (determined on the basis of aggregate revenues (subject to year-end audit adjustments) recognized by the Company and its Subsidiaries for the fiscal year ended December 31, 2018) (each, a “Major Customer”). Section 3.20(b) of the Company Disclosure Letter lists the ten (10) largest vendors of the Company (determined on the basis of aggregate purchases made by the Company and its Subsidiaries for the fiscal year ended December 31, 2018) (each, a “Major Vendor”). As of the date hereof, the Company has not received in the past twelve (12) months, any written notice from any Major Customer or Major Vendor that it wishes to terminate, not renew, or materially modify to the detriment of the Company or the Company Subsidiaries, its Contract with the Company or its Subsidiaries.

Section 3.21         Insurance. Except as would not reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all policies of insurance maintained by the Company or its Subsidiaries are in full force and effect, (ii) no written notice of cancellation has been received by the Company or its Subsidiaries with respect to such policies (other than in connection with ordinary renewals), and (iii) to the Knowledge of the Company, there is no existing default or event which, with the giving of notice or lapse of time or both, would reasonably constitute a default, by any insured thereunder.

Section 3.22         Brokers. Except for ▇.▇. ▇▇▇▇▇▇ Securities LLC, there is no investment banker, broker or finder that has been retained by or on behalf of the Company or its Subsidiaries who is entitled to any brokerage, finder’s or other fee or commission payable by the Company or its Subsidiaries in connection with the transactions contemplated by this Agreement.

Section 3.23         Opinion of Financial Advisor. The Company Board has received the written opinion of ▇.▇. ▇▇▇▇▇▇ Securities LLC, financial advisor to the Company Board, dated February 21, 2019, that as of the date of such opinion and based upon and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken in preparing such opinion as set forth therein, the Merger Consideration to be paid to the holders of Company Shares (other than Company Shares held in the treasury of the Company (dormant shares), together with any Company Shares reserved for future grants under the Company Share Plans, or owned by Parent or any direct or indirect wholly owned Subsidiaries of the Company or of Parent immediately prior to the Effective Time, and Shares held by any Affiliate of the Company or Parent) pursuant to this Agreement is fair, from a financial point of view, to such holders. It is agreed and understood that such opinion, a copy of which will be provided to Parent promptly following execution of this Agreement for informational purposes only, is for the benefit of the Company Board and may not be relied on by Parent or Merger Sub.

Section 3.24         Anti-Takeover Statutes.

(a)                Assuming that the representations of Parent and Merger Sub set forth in ‎‎Section 4.7 are accurate, other than as set forth in the ICL and the Rights Agreement, no “moratorium,” “control share acquisition,” “fair price,” “interested shareholder,” “affiliate transaction,” “business combination” or similar antitakeover statute apply to this Agreement, the Merger or any other transaction contemplated by this Agreement.

(b)               The Company Board has taken all necessary actions so that the Rights Agreement does not apply to this Agreement and the transactions contemplated hereby, including the Merger or the other transactions contemplated by this Agreement.

Section 3.25         Proxy Statement.  None of the information contained or incorporated by reference in the Proxy Statement will, on the date it is first mailed to the Company Shareholders, and at the time of the Company Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, when taken into account with any subsequent modifying, amending and/or supplementing information furnished by the Company to the Company Shareholders (including via broad, general public dissemination with respect to typographical errors or similar corrections). On the date it is first mailed to the Company Shareholders, the Proxy Statement shall comply in all material respects with the applicable requirements of the ICL. Notwithstanding the foregoing, no representation or warranty is made by the Company as to the accuracy of any financial projections or forward-looking statements, or with respect to information supplied by Parent or Merger Sub or any of their Affiliates, directors, officers, employees, affiliates, agents or other representatives for inclusion or incorporation by reference in any such document.

Section 3.26         International Trade and Anti-Corruption.  

(a)                Except as would not reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, officers, directors, employees, or, to the Knowledge of the Company, agents or third-party representatives of the Company or any of its Subsidiaries (in their capacity as such) is currently, or has since December 31, 2016, been: (A) a Sanctioned Person; (B) operating in, organized in, conducting business with, or otherwise engaging in dealings with or for the benefit of any Sanctioned Person or in any Sanctioned Country; or (C) otherwise in violation of any applicable Sanctions and Export Control Laws or U.S. antiboycott Laws (“Trade Controls”).

(b)               Except as would not reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, since December 31, 2016, neither the Company nor any of its Subsidiaries, officers, directors, employees, or, to the Knowledge of the Company, agents or third-party representatives of the Company or any of its Subsidiaries (in their capacity as such) (i) has made, authorized, solicited or received any bribe, unlawful rebate, payoff, influence payment, or kickback, (ii) has established or maintained, or is maintaining, any unlawful fund of corporate monies or properties, (iii) has used or is using any corporate funds for any illegal contributions, gifts, entertainment, hospitality, travel, or other unlawful expenses, (iv) has violated or is violating in any respect any applicable Laws prohibiting corruption and bribery, including the U.S. Foreign Corrupt Practices Act, the UK ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, and Sections 291 and 291A of the Israeli Penal Law (collectively, “Anti-Corruption Laws”), or (v) has, directly or indirectly, made, offered, authorized, facilitated, or promised any payment, contribution, gift, entertainment, bribe, rebate, kickback, financial or other advantage, or anything else of value, regardless of form or amount, to any Person in violation of any applicable Anti-Corruption Laws, in each case (i) - (v), in connection with or relating to the business of the Company.

(c)                Except as would not reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, or to the Knowledge of the Company, officers, or directors is or, since December 31, 2016, has been the subject of any investigation, inquiry or enforcement proceedings by any Governmental Authority regarding any offense or alleged offense under Trade Controls or Anti-Corruption Laws (including by virtue of having made any disclosure relating to any offense or alleged offense), and no such investigation, inquiry or proceedings have been threatened in writing or are pending.

Section 3.27         Related Party Transactions(i). Except for compensation or other employment arrangements in the ordinary course of business or as otherwise disclosed in the Company Reports, there are no Contracts between the Company or any of its Subsidiaries, on the one hand, and any Affiliate (including any director or officer or any shareholder that beneficially owns more than 5% of the outstanding Company Shares) thereof, but not including any wholly owned Subsidiary of the Company, on the other hand, that would be required to be disclosed pursuant to Item 404 of Regulation S-K.

Section 3.28         No Other Representations or Warranties. Except for the representations and warranties contained in this ‎‎ARTICLE III and in any closing certificate delivered by the Company, neither the Company nor any other Person on behalf of the Company or its Subsidiaries makes any other express or implied representation or warranty with respect to the Company or its Subsidiaries or with respect to any other information provided by or on behalf of the Company or its Subsidiaries. Without limiting the foregoing, neither the Company nor any other Person will have or be subject to any liability or other obligation to Parent, Merger Sub or their respective Representatives or Affiliates or any other Person resulting from Parent’s, Merger Sub’s or their respective Representatives’ or Affiliates’ or such other Person’s use of any information, documents, projections, forecasts or other material made available to Parent, Merger Sub or their respective Representatives or Affiliates or such other Person, including any information made available in the electronic data room for “Attunity 2018” run by Intralinks and maintained by the Company for purposes of the transactions contemplated by this Agreement (the “Electronic Data Room”), marketing material, confidential information memorandum, management presentations, functional “break-out” discussions, responses to questions submitted on behalf of Parent, Merger Sub or their respective Representatives or in any other form in connection with the transactions contemplated by this Agreement, except to the extent any such information is expressly included in a representation or warranty contained in this ‎‎ARTICLE III.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Parent and Merger Sub hereby represent and warrant to the Company as follows:

Section 4.1             Organization; Good Standing and Qualification. Each of Parent and Merger Sub (i) is a legal entity duly organized, validly existing and (to the extent such concept is applicable) in good standing under the Laws of its respective jurisdiction of organization and (ii) has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each of Parent and Merger Sub is qualified to do business and is in good standing as a foreign corporation or other legal entity in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification. All of the issued and outstanding capital stock of Merger Sub is owned directly by Parent.

Section 4.2             Corporate Power; Enforceability. Each of Parent and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement, to perform their respective covenants and obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Parent and Merger Sub of this Agreement, the performance by Parent and Merger Sub of their respective covenants and obligations hereunder and the consummation by Parent and Merger Sub of the transactions contemplated hereby have been duly authorized by all necessary corporate or other action on the part of Parent and Merger Sub, and no other corporate or other proceeding on the part of Parent or Merger Sub is necessary to authorize the execution and delivery by Parent and Merger Sub of this Agreement, the performance by Parent and Merger Sub of their respective covenants and obligations hereunder or the consummation by Parent and Merger Sub of the transactions contemplated hereby. This Agreement has been duly executed and delivered by each of Parent and Merger Sub and, assuming the due authorization, execution and delivery by the Company, constitutes a valid and binding obligation of each of Parent and Merger Sub, enforceable against each in accordance with its terms, subject to the Bankruptcy and Equity Exception. The board of directors of Merger Sub has unanimously: (i) determined that the Merger is fair to, and in the best interest of, Merger Sub and its shareholder, and that, considering the financial position of the merging companies, no reasonable concern exists that the Surviving Company will be unable to fulfill the obligations of Merger Sub to its creditors, (ii) approved this Agreement, the Merger and the other transactions contemplated herby, and (iii) resolved to recommend that the sole shareholder of Merger Sub approve this Agreement, the Merger and the other transactions contemplated hereby, pursuant to the terms hereof (which approval has been obtained simultaneously with the execution of this Agreement). No vote of the holders of any of the issued and outstanding shares of capital stock of Parent is necessary to approve and adopt this Agreement and the transactions contemplated by this Agreement. The adoption of this Agreement by Parent as the sole shareholder of Merger Sub is the only vote or consent of the holders of any class or series of capital stock of Merger Sub necessary to approve this Agreement or the transactions contemplated hereby, including the Merger.

Section 4.3             Non-Contravention. The execution and delivery by Parent and Merger Sub of this Agreement do not, and the performance by Parent and Merger Sub of their respective obligations hereunder will not, (a) violate or conflict with any provision of the articles of incorporation or bylaws or other organizational documents of Parent or the articles of association of Merger Sub, (b) result in a violation or breach of any provision of, or constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation, payment, acceleration or revocation under, any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which Parent or Merger Sub is a party or by which Parent, Merger Sub or any of their respective assets or properties may be bound, (c) assuming the Approvals referred to in ‎‎Section 3.3 are obtained or made, violate or conflict with any Law or Order applicable to Parent or Merger Sub or by which any of their respective assets or properties are bound or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of Parent or Merger Sub, except in the case of each of clauses (b), (c) and (d) above, for such violations, conflicts, defaults, terminations, accelerations or Liens which would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

Section 4.4             Required Governmental Approvals. No Approval of any Governmental Authority is required on the part of Parent, Merger Sub or any of their Affiliates in connection with the execution and delivery by Parent and Merger Sub of this Agreement, the performance by Parent and Merger Sub of their respective covenants and obligations hereunder and the consummation by Parent and Merger Sub of the transactions contemplated hereby, other than (a) the execution by Parent of an undertaking in customary form in favor of the OCS as a foreign interested party, (b) the filing of the Merger Proposal with the Companies Registrar and all such other notices or filings required under the ICL with respect to the consummation of the Merger and the issuance of the Certificate of Merger by the Companies Registrar, (c) the Approval under the HSR Act and any applicable Approvals under any other Antitrust Laws, or Approval thereby that the Merger is exempted from such Approval, in each case, as set forth in Section 4.4 of the Company Disclosure Letter, (d) any filings and other Approvals as may be required as a result of facts and circumstances relating solely to the Company and its Affiliates and (e) such other Approvals the failure of which to make or obtain has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

Section 4.5             Litigation. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) there is no Legal Proceeding or, to the Knowledge of Parent, any investigation pending or threatened in writing against Parent or any Affiliate thereof, and (ii) there is no Order, whether civil, criminal or administrative, outstanding against Parent or any Affiliate thereof.

Section 4.6             Proxy Statement. None of the information supplied or to be supplied by or on behalf of Parent or Merger Sub specifically for inclusion or incorporation by reference in the Proxy Statement will, on the date first mailed to the Company Shareholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, when taken into account with any subsequent modifying, amending, and/or supplementing information furnished by Parent or Merger Sub to the Company and the Company Shareholders (including via broad, general public dissemination with respect to typographical errors or similar corrections).

Section 4.7             Ownership of Company Share Capital. Neither Parent nor any of its Subsidiaries owns (beneficially or otherwise) any Company Shares or Company Securities (or any other economic interest through derivative securities or otherwise in the Company or its Subsidiaries) except, if at all, pursuant to this Agreement. None of the Persons referred to in Section 320(c) of the ICL with respect to Parent or Merger Sub owns any Company Shares.

Section 4.8             Brokers. There is no investment banker, broker or finder that has been retained by or on behalf of Parent or Merger Sub who is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement (except for persons whose fees or commissions shall be paid by Parent or Merger Sub).

Section 4.9             Operations of Merger Sub. Merger Sub has been formed solely for the purpose of engaging in the transactions contemplated hereby and, prior to the Effective Time, Merger Sub will not have engaged in any other business activities and will have incurred no Liabilities or obligations other than as contemplated by this Agreement and other immaterial Liabilities incident to its formation.

Section 4.10         Contact with Customers and Suppliers. None of Parent, Merger Sub or any of their respective Representatives or financing sources has, without the prior written consent of the Company, directly or indirectly contacted any officer, director, employee, shareholder, franchisee, supplier, distributor, customer or other material business relation of the Company or its Subsidiaries prior to the date hereof for the purposes of discussing the Company or its Subsidiaries in connection with the transactions contemplated hereby.

Section 4.11         Shareholder and Management Arrangements. Other than the Voting Agreements, there are no Contracts (whether oral or written) (i) between Parent, Merger Sub or any of their respective Affiliates, on the one hand, and any member of the Company’s management or the Company Board (in each case, in his or her individual capacity), on the other hand, relating to the Company or its Subsidiaries or the transactions contemplated by this Agreement, or (ii) between Parent, Merger Sub or any of their respective Affiliates, on the one hand, and any Company Shareholder, on the other hand, pursuant to which any Company Shareholder would be entitled to receive consideration of a different amount or nature than the Merger Consideration or pursuant to which any Company Shareholder agrees to vote to approve this Agreement or the Merger or agrees to vote against any Superior Proposal.

Section 4.12         Financial Statements; Solvency.

(a)                The consolidated financial statements set forth on Schedule 4.12 hereto fairly present, in all material respects, (i) the consolidated financial position of Project Alpha Intermediate II Holding, Inc. (“Alpha Intermediate”) and its Subsidiaries (together, the “Parent Group”) as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (subject, in the case of unaudited interim statements, to normal year-end adjustments), in each case in accordance with GAAP consistently applied during the periods and at the dates involved and (ii) the cash balances, as of the applicable dates set forth therein, of Ultimate Parent and its Subsidiaries listed therein, including any restrictions on the usage thereof that would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. As of February 18, 2019, the Parent Group, on a consolidated basis, has a cash balance of not less than the amount set forth on Schedule 4.12(a)(ii), which cash balance is comprised of cash and cash equivalents on hand that is available to consummate the transactions contemplated by this Agreement at the Closing. Since December 31, 2017, there has not been any Change that constitutes a Parent Material Adverse Effect. Alpha Intermediate directly owns all of the issued and outstanding capital stock of Ultimate Parent, and Alpha Intermediate owns no other assets or properties other than such capital stock. Alpha Intermediate has no liabilities of any nature other than liabilities that are incidental to Alpha Intermediate’s ownership of the outstanding capital stock of Ultimate Parent and pursuant to the Credit Agreement, dated as of April 26, 2017 (as amended from time to time, the “Credit Agreement”), among Ultimate Parent, Alpha Intermediate, the lenders from time to time party thereto and the other parties named therein.

(b)               Parent and Merger Sub are not entering into the transactions contemplated hereby with actual intent to hinder, delay or defraud either present or future creditors of any of the parties hereunder or their respective Affiliates. Assuming the accuracy of the representations and warranties set forth in ARTICLE III in all material respects and the Company and its Subsidiaries’ compliance with the covenants and agreements set forth in Section 5.1 of this Agreement in all material respects, as of the Effective Time and immediately after giving effect to all of the transactions contemplated by this Agreement, including the Merger and the payment of the aggregate Merger Consideration pursuant hereto, and payment of all related fees and expenses of Parent, Merger Sub, the Company and their respective Subsidiaries in connection therewith, (i) the amount of the “fair saleable value” of the assets of each of the Surviving Company and its Subsidiaries will exceed (A) the value of all Liabilities of the Surviving Company and such Subsidiaries, including contingent and other Liabilities, and (B) the amount that will be required to pay the probable Liabilities of the Surviving Company and such Subsidiaries on their existing debts (including contingent liabilities) as such debts become absolute and matured, (ii) each of the Surviving Company and its Subsidiaries will not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged, and (iii) each of the Surviving Company and its Subsidiaries will be able to pay its Liabilities, including contingent and other Liabilities, as they mature. In computing the amount of contingent or unliquidated Liabilities at any time, such Liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become actual or matured Liabilities. For purposes of the foregoing, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its Liabilities, including contingent and other Liabilities, as they mature” means that such Person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations as they become due.

Section 4.13         No Other Company Representations or Warranties. Except for the representations and warranties expressly set forth in ‎‎ARTICLE III and in any closing certificate, Parent and Merger Sub hereby acknowledge and agree that (a) none of the Company, its Subsidiaries, their respective Representatives or any other Person has made or is making any other express or implied representation or warranty with respect to the Company or its Subsidiaries or their respective business or operations, including with respect to any information provided or made available to Parent, Merger Sub, any of their respective Representatives or any other Person, whether prior to or after the date hereof, and (b) none of the Company, its Subsidiaries, their respective Representatives or any other Person will have or be subject to any liability or indemnification obligation or other obligation of any kind or nature to Parent, Merger Sub, any of their respective Representatives or any other Person resulting from the delivery, dissemination or any other distribution to Parent, Merger Sub, any of their respective Representatives or any other Person, or the use by Parent, Merger Sub, any of their respective Representatives or any other Person of any such information provided or made available to any of them by the Company, its Subsidiaries, their respective Representatives or any other Person, including any information, documents, estimates, projections, forecasts or other forward-looking information, business plans or other material provided or made available to Parent, Merger Sub or any of their respective Affiliates, shareholders, directors, officers, employees, agents, representatives or advisors, or any other Person in “data rooms,” confidential information memoranda or management presentations in anticipation or contemplation of the Merger or any other transactions contemplated by this Agreement.

Section 4.14         Funds. Parent has provided to the Company a true and complete copy of the fully executed debt commitment letter, dated as of February 21, 2019, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., ▇▇▇▇▇▇▇ Sachs Bank USA and Ultimate Parent, which holds (directly or indirectly) 100% of the equity interests of, and controls, Parent, together with any related fee letters (it being understood that the fee amounts and market flex terms in such fee letters may be redacted in a customary manner so long as such redaction does not cover terms that would adversely affect the conditionality, availability or termination of the Debt Financing), engagement letters, exhibits, schedules, annexes, supplements and term sheets (collectively, the “Debt Commitment Letter”), pursuant to which such Debt Financing Sources agreed to lend to Ultimate Parent the amounts set forth therein on the terms and subject to the conditions set forth therein (together with any Alternative Financing, the “Debt Financing”) for the purpose of funding the transactions contemplated hereby.  As of the date hereof, there are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates (including, for sake of clarity, Ultimate Parent) is a party that could affect the availability, conditionality, enforceability or amount of the Debt Financing contemplated by the Debt Commitment Letter.

(b)               The Debt Commitment Letter has not been amended, supplemented or modified (and no such amendment, supplement or modification is contemplated, except as permitted under Section 7.10 hereof), and, to the Knowledge of Parent, the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect. As of the date hereof, the Debt Commitment Letter is in full force and effect and constitute the legal, valid and binding obligations of Ultimate Parent, and, to the Knowledge of Parent, each of the other parties thereto, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally and by general principles of equity, regardless of whether considered in a proceeding in equity or at law.  There are no conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing, including any condition or other contingency relating to the amount or availability of the Debt Financing pursuant to any “flex” provision, other than as expressly set forth in the Debt Commitment Letter.  Assuming the accuracy of the representations and warranties set forth in ARTICLE III in all material respects, as of the date hereof, no event has occurred which (with or without notice, lapse of time or both) would or would reasonably be expected to constitute a breach or failure to satisfy a condition by Ultimate Parent or, to Parent’s Knowledge, any other parties thereto, under the terms and conditions of the Debt Commitment Letter, and, assuming the satisfaction of the conditions set forth in Section 8.2(a) hereof at or prior to the Closing, there is no reason Ultimate Parent will not be able to timely satisfy any condition to the closing of the Debt Financing that is required to be satisfied as a condition to the Debt Financing, or that the Debt Financing will not be made available to Ultimate Parent on the Closing Date. Parent does not have any Knowledge that any of the Debt Financing Sources will not perform their obligations under the Debt Commitment Letter, and to the Knowledge of Parent, no event has occurred or circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected to make any of the assumptions or any of the statements set forth in the Debt Commitment Letter inaccurate in any material respect.

(c)                As of the date of this Agreement, Ultimate Parent has fully paid, or caused to be fully paid, any and all commitment fees or other fees that have been incurred and are due and payable in connection with the Debt Commitment Letter on or prior to the date of this Agreement.

(d)               Assuming the satisfaction of the conditions set forth in Section 8.1 and Section 8.2, at or prior to the Closing, the aggregate proceeds contemplated by the Debt Commitment Letter, together with cash on hand, will provide Parent with sufficient immediately available cash funds to enable it to pay all amounts required to be paid by Parent under this Agreement (including the payment of the Merger Consideration to all Company Shareholders, any payments in respect of equity compensation obligations to be made in connection with the Merger in accordance with Article II due on the Closing Date and any fees and expenses of or payable by Parent, Merger Sub or the Surviving Company) and the Financing Commitment Letters, in each case, due on or before the Closing Date.

(e)                In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Debt Financing) by Parent, Merger Sub or any of their respective Affiliates or any other financing be a condition to any of Parent’s or Merger Sub’s obligations under this Agreement.

(f)                None of Parent, Merger Sub or any of their respective Affiliates has entered into any Contract with any Person prohibiting or seeking to prohibit such Person from providing or seeking to provide debt financing to any Person in connection with a transaction relating to the Company or any of its Subsidiaries in connection with the Merger.

Section 4.15         Acknowledgement. Without derogating from the representations made by the Company, each of Parent and Merger Sub acknowledges that, as of the date hereof, they and their Representatives (i) have received access to (A) such books and records, facilities, properties, premises, equipment, contracts and other assets of the Company and its Subsidiaries which they and their Representatives, as of the date hereof, have requested to review and (B) the Electronic Data Room and (ii) have had an opportunity to meet with the management of the Company and its Subsidiaries and to discuss the business and assets of the Company and its Subsidiaries. Each of Parent and Merger Sub has conducted, to its satisfaction, its own independent review and analysis of the businesses, assets, condition, operations and prospects of the Company and its Subsidiaries and, in making its determination to proceed with the transactions contemplated by this Agreement, including the Merger, each of Parent and Merger Sub has relied on the results of its own independent review and analysis.

ARTICLE V

COVENANTS OF THE COMPANY

Section 5.1             Interim Conduct of Business.

(a)                Except (i) as expressly required or permitted by this Agreement, (ii) required by applicable Law (including any requirement of the SEC or GAAP), (iii) as set forth in ‎‎Section 5.1 of the Company Disclosure Letter, or (iv) as approved in writing in advance by Parent (which approval shall not be unreasonably withheld, conditioned or delayed), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to ‎‎ARTICLE IX and the Effective Time, each of the Company and its Subsidiaries shall carry on its business in the usual and ordinary course of business, consistent with past practice, in all material respects, and, to the extent consistent with past practice, shall use its commercially reasonable efforts to preserve in all material respects its business organization intact, and preserve the current relationships of the Company and its Subsidiaries with Persons with whom the Company or its Subsidiaries has significant business relations in all material respects and keep available the services of the present key employees in all material respects.

(b)               Without derogating from the foregoing, except (i) as expressly required or permitted by this Agreement, (ii) required by applicable Law (including any requirement of the SEC but not GAAP), (iii) as set forth in ‎‎Section 5.1 of the Company Disclosure Letter, or (iv) as approved by Parent (which approval shall not be unreasonably withheld, conditioned or delayed), at all times until the earlier to occur of the termination of this Agreement pursuant to ‎‎ARTICLE IX and the Effective Time, the Company shall not do any of the following and shall not permit its Subsidiaries to do any of the following (it being understood and hereby agreed that if any action is expressly permitted by any of the following subsections or by ‎‎Section 5.1 of the Company Disclosure Letter, such action shall be expressly permitted under all other subsections of this ‎‎Section 5.1(b) and shall be expressly permitted under ‎‎Section 5.1(a)):

(i)                 amend the Charter Documents or materially amend any organizational document of the Subsidiaries of the Company;

(ii)               issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any Company Securities or any securities of its Subsidiaries, except for the issuance and sale of Company Shares pursuant to Company Options and Company RSUs upon the exercise or vesting thereof, as applicable, in each case, to the extent outstanding as of the date hereof and in accordance with their existing terms;

(iii)             directly or indirectly acquire, repurchase, redeem or otherwise acquire any Company Securities or any securities of its Subsidiaries, except in connection with Tax withholdings and exercise price settlements upon the exercise or vesting of Company Options or Company RSUs;

(iv)             (A) split, combine, subdivide or reclassify any share capital or (B) declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any of its share capital, or make any other actual, constructive or deemed distribution in respect of the share capital, except for cash dividends made by the Company Subsidiaries to the Company;

(v)               completely or partially liquidate the Company or adopt a plan of complete or partial liquidation with respect to the Company;

(vi)             (A) incur or assume any Indebtedness or guarantee any Indebtedness of another Person or issue any debt securities, except for loans, advances or guarantees between the Company and its Subsidiaries, (B) make any loans, advances or capital contributions to or investments in any other Person (other than the Company or its Subsidiaries), except for business expense advances in the ordinary course of business consistent with past practice, (C) mortgage or pledge any of its material assets, tangible or intangible (including Owned Intellectual Property Right or rights under Licensed Intellectual Property Right) or create any Lien thereupon (other than Permitted Liens or Liens granted in connection with the incurrence of any Indebtedness permitted under this ‎‎Section 5.1(b)(vi);

(vii)           except as may be required by the terms of any Employee Plan or Contract as in effect on the date hereof, (A) enter into, adopt, amend in any material respect (including acceleration of vesting, funding or payment) or terminate any Employee Plan or any other bonus, profit sharing, incentive, compensation, severance, retention, termination, option, appreciation right, performance unit, stock equivalent, share purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or arrangement for the compensation, benefit or welfare of any director, officer or employee in any manner, (B) increase the compensation payable or to become payable to any director, officer or employee, pay or agree to pay any special bonus or special remuneration to any director, officer or employee, or pay or agree to pay any material benefit not required by any Employee Plan as in effect as of the date hereof, except for calculating and paying of the existing annual bonus for 2018 to any employees of the Company and its Subsidiaries, or (C) take any action to accelerate the vesting or payment, or fund or in any way secure, the payment of compensation or benefits under any Employee Plan, to the extent not already provided in such Employee Plan.

(viii)         implement any employee layoffs implicating the Worker Adjustment and Retraining Notification Act of 1988 or any similar Law;

(ix)             make any material change in any of the accounting principles or practices used by it, except as required by GAAP;

(x)               make or agree to make any new capital expenditure or expenditures that, individually, is in excess of $300,000 or, in the aggregate, are in excess of $1,000,000;

(xi)             (A) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets or by any other manner) (1) any business or other Person or any material equity interest therein for consideration in excess of $500,000 in the aggregate, or (2) any assets that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, except for purchases of inventory, services or supplies in the ordinary course of business consistent with past practice, (B) other than in the ordinary course, sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets of the Company or its Subsidiaries, which are material to the Company and its Subsidiaries, taken as a whole;

(xii)           sell, lease, license, knowingly disclose, or otherwise transfer, abandon or dispose of any material Owned Intellectual Property Right, other than the grant of non-exclusive licenses to customers in the ordinary course of business;

(xiii)         other than in the ordinary course of business, (A) enter into (including by amendment of any Contract such that such Contract becomes a Material Contract) or terminate any Material Contract (or a Contract that would be a Material Contract if it were entered into on the date hereof), (B) amend or modify in any material respect any Material Contract or (C) waive, release or assign any material rights, claims or benefits of the Company or any of its Subsidiaries under any Material Contract;

(xiv)         settle any Legal Proceedings unless such settlement (A) is for Liabilities reflected or reserved against in full in the balance sheet or is for Legal Proceedings incurred since the Balance Sheet Date in the ordinary course of business and involves payment by the Company not in excess of $150,000 individually or $300,000 in the aggregate and (B) does not impose any material restrictions on the operations of the Company and its Subsidiaries;

(xv)           (A) terminate the employment of any executive officer other than for “cause” or (B) hire any new employees, except for non-officer employees with annual base compensation of $150,000 or less per year;

(xvi)         except as required by applicable Law or GAAP, revalue in any material respect any of its properties or assets, including writing-off notes or accounts receivable, in any case other than in the ordinary course of business consistent with past practice;

(xvii)       effect, or publicly announce any intention to effect, any material change, delay or acceleration of customer billing or vendor payment practices (including through incentives or discounts), in each case other than in the ordinary course of business;

(xviii)     (A) make or change any material Tax election, (B) file any material amended Tax Return, (C) settle or finally resolve any Tax contest with respect to a material amount of Tax; (D) enter into any closing agreement relating to any material Tax, (E) agree to an extension or waiver of a statute of limitations period applicable to any material Tax claim or assessment (F) fail to pay any material Tax when due and payable (including estimated taxes), except to the extent such Taxes are contested in good faith with respect to which adequate reserves have been established in accordance with GAAP, or (G) surrender any right to claim a material Tax refund; or

(xix)         authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions.

(c)                Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Effective Time. Prior to the Effective Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

(d)               All notices, request for consents and other communications pursuant to this ‎‎Section 5.1 shall be in writing, delivered in accordance with ‎‎Section 10.2.

Section 5.2             No Solicitation.

(a)                The Company shall and shall cause its Subsidiaries and shall instruct and use reasonable best efforts to cause its and their respective Representatives to (i) immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal, (ii) take the necessary steps to promptly inform any Persons with whom discussions and negotiations are then occurring or who make an Acquisition Proposal of the obligations set forth in this ‎Section 5.2, (iii) terminate “data room” access to such Persons and any other Persons who has made, or indicated any intention to make, an Acquisition Proposal, including their respective Representatives (other than Parent’s Representatives), and (iv) as promptly as practicable (and in any event within three (3) Business Days) following the date hereof, request the prompt return or destruction (to the extent provided for by the applicable confidentiality agreement) of all confidential information previously furnished to any Person that has, within the one (1)-year period prior to the date of this Agreement, made or indicated an intention to make an Acquisition Proposal.

(b)               Subject to the other terms of this ‎Section 5.2 and ‎Section 5.3, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to ‎‎ARTICLE IX and the Effective Time, the Company shall not, nor shall it authorize or knowingly permit its Subsidiaries to, and will instruct and use reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage, or knowingly facilitate the making of, an Acquisition Proposal, or the making of any inquiry, offer or proposal that would be reasonably likely to lead to an Acquisition Proposal, (ii) other than (A) with Parent, Merger Sub or their respective Representatives, (B) solely to inform any Person of the provisions of this ‎Section 5.2 or (C) solely to take any of the other actions required to be taken pursuant to Section 5.2(a), enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any material non-public information in connection with, any Acquisition Proposal, (iii) grant any waiver of, amend or terminate any “standstill” or similar agreement or obligation of any Person with respect to the Company or its Subsidiaries, unless the Company Board determines after consulting with its outside legal counsel that the failure to waive such provision would reasonably be expected to violate the directors’ fiduciary duties under Israeli Law, (iv) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any Alternative Transaction Agreement, or (v) resolve or agree to take any of the foregoing actions.

(c)                Notwithstanding anything to the contrary set forth in this ‎‎Section 5.2 or elsewhere in this Agreement, prior to the receipt of the Company Shareholder Approval, the Company Board (or a committee thereof) may, directly or indirectly through the Company’s Representatives, (i) contact any Person that has made an unsolicited Acquisition Proposal (and its advisors) solely for the purpose of clarifying the proposal and any terms thereof and the conditions to and likelihood of consummation, so as to determine whether such proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal, or (ii) if the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that an Acquisition Proposal which did not result from a breach by the Company or its Subsidiaries of this ‎Section 5.2 (other than any immaterial breach not intended to result in an Acquisition Proposal) either constitutes or would reasonably be expected to lead to a Superior Proposal and that the failure to engage in such discussions or negotiations would reasonably be expected to be inconsistent with the directors’ fiduciary duties under Israeli Law, (A) participate or engage in discussions or negotiations with any such Person regarding an Acquisition Proposal, or (B) furnish to any such Person that has made such an Acquisition Proposal, any information relating to the Company or its Subsidiaries and/or afford to any such Person access to the business, properties, assets, books, records or other information, or to any personnel, of the Company or its Subsidiaries, in each case under this clause (B) pursuant to, and subject to execution of an Acceptable Confidentiality Agreement. A copy of all such non-public information not previously provided to Parent (or its Representatives) shall be provided to Parent as promptly as reasonably practicable, and in any event not more than twenty four (24) hours, after such information has been provided or made available to such Person (or its Representatives). The Company shall advise Parent of any Acquisition Proposal and the material terms and conditions of any such Acquisition Proposal (including the identity of such Person) and copies of any agreement or other document submitted in connection therewith and shall keep Parent reasonably informed of the status (including any changes to the material terms and conditions thereof and material developments with respect thereto) of any such Acquisition Proposal no later than twenty four (24) hours after the receipt of the Acquisition Proposal or the occurrence of any such material developments.

(d)               The Company agrees that any breach of this ‎Section 5.2 by any of the Subsidiaries of the Company or its or their Representatives shall be deemed to be a breach of this Agreement by the Company (other than any immaterial breaches thereof not intended to result in an Acquisition Proposal).

Section 5.3             Company Board Recommendation.

(a)                Except as otherwise expressly provided in this ‎Section 5.3, neither the Company Board nor any committee thereof shall (i) withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, or fail to include the Company Board Recommendation in the proxy statement, (ii) approve or recommend or propose publicly to approve or recommend, any Acquisition Proposal, (iii) if any tender offer or exchange offer that constitutes an Acquisition Proposal subject to Regulation 14D under the Exchange Act is commenced, recommend in favor of such Acquisition Proposal or fail to publicly reaffirm the Company Board Recommendation in any solicitation or recommendation statement on Schedule 14D-9 filed by the Company with the SEC within ten (10) Business Days after the commencement of such Acquisition Proposal, (iv) at any time after receipt or public announcement of an Acquisition Proposal, fail to publicly reaffirm the Company Board Recommendation within four (4) Business Days after receipt of written request by the Parent to do so (provided that Parent shall not be permitted to make any such request on more than two (2) occasions in respect of (A) each Acquisition Proposal and (B) each material amendment or material modification of each such Acquisition Proposal) (any action referred to in the foregoing clauses (i), (ii), (iii) and (iv) being referred to as a “Company Board Recommendation Change”), or (v) enter into any letter of intent, memorandum of understanding, agreement in principle, term sheet, acquisition agreement, merger agreement or similar agreement (other than an Acceptable Confidentiality Agreement entered into in the circumstances referred to in ‎‎Section 5.2(c)) (A) constituting or that could reasonably be expected to lead to any Acquisition Proposal or (B) requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement (an “Alternative Transaction Agreement”).

(b)               Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the receipt of the Company Shareholder Approval, if the Company or any of its Representatives receives a written Acquisition Proposal that was not made as a result of a breach of ‎Section 5.2 (other than any immaterial breach not intended to result in an Acquisition Proposal) and which was made on or after the date of this Agreement and not withdrawn and that the Company Board determines, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal and the Company Board determines in good faith that the failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Israeli Law), the Company Board may (x) effect a Company Board Recommendation Change and/or (y) terminate this Agreement pursuant to ‎‎Section 9.1(g), including payment of the Company Termination Fee in accordance therewith, and, concurrently with such termination, may enter into an Alternative Transaction Agreement with respect to such Superior Proposal; provided, however, that the Company Board may not effect a Company Board Recommendation Change or terminate this Agreement pursuant to ‎‎Section 9.1(g) and this ‎Section 5.3(b) unless (A) the Company shall have provided to Parent four (4) Business Days’ prior written notice advising Parent that the Company Board intends to take such action (it being agreed that such notice and any amendment or update to such notice and the determination to so deliver such notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement) (a “Recommendation Change Notice”), and (B) (x) during such four (4) Business Day period, if requested by Parent, the Company shall have engaged in negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent and (y) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered in a written irrevocable offer by Parent during the four (4) Business Day period immediately following the delivery by the Company to Parent of such Recommendation Change Notice and the Company Board shall have determined (after consultation with its financial advisor and outside legal counsel) that the Superior Proposal would continue to constitute a Superior Proposal if such adjustments were to be given effect. For the avoidance of doubt, the provisions of this ‎‎Section 5.3(b) shall also apply to every subsequent material amendment to any Acquisition Proposal, except that the period described in clauses (A) and (B) above shall be two (2) Business Days rather than four (4) Business Days.

(c)                Notwithstanding anything to the contrary contained herein, the Company or the Company Board, directly or indirectly through their respective Representatives, shall be permitted to (i)  take or disclose any position or disclose any information reasonably required under applicable Law or in compliance with or otherwise complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act (or any communication under Israeli Law with similar content or any other similar communication to the Company Shareholders), and to the extent referred to therein, Item 1012(a) of Regulation M-A promulgated under the Exchange Act with respect to any Acquisition Proposal, or (ii) make any “stop, look and listen” communication to the Company Shareholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act or any similar communication to the Company Shareholders that is reasonably required by applicable Law); provided, however, that (A) in no event shall this Section 5.3(c) affect or modify the definition of Company Board Recommendation Change and (B) any such disclosure (other than issuance by the Company of a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or by the ICL) that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board with respect to this Agreement or an Acquisition Proposal shall be deemed to be a Company Board Recommendation Change unless the Company Board in connection with such communication publicly states that its recommendation with respect to this Agreement has not changed. For the avoidance of doubt, (i) a factually accurate public statement that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto and (ii) a waiver of any “standstill” or similar provision in order to permit a Person to make an Acquisition Proposal, shall not be deemed a Company Board Recommendation Change.

(d)               Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to the receipt of the Company Shareholder Approval, the Company Board may effect a Company Board Recommendation Change in response to an Intervening Event, if (i) the Company Board determines in good faith after consultation with its financial advisor and outside legal counsel that the failure to effect a Company Board Recommendation Change would reasonably be expected to violate the directors’ fiduciary duties under applicable Law; (ii) (A) the Company shall have provided to Parent four (4) Business Days’ prior written notice advising Parent that the Company Board intends to effect such Company Board Recommendation Change in respect of such Intervening Event, and describing in reasonable detail the Intervening Event and the reasons for such Company Board Recommendation Change (it being agreed that such notice and any amendment or update to such notice and the determination to so deliver such notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement) and (B) (x) during such four (4) Business Day period, if requested in writing by Parent, the Company shall have engaged in negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent and (y) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered in a written offer by Parent during the four (4) Business Day period (or shorter period prior to the Company Shareholders Meeting) immediately following the delivery by the Company to Parent of such notice, which is capable of being accepted by the Company and the Company Board shall have determined (after consultation with its financial advisor and outside legal counsel) that the failure to effect a Company Board Recommendation Change would still reasonably be expected to violate the directors’ fiduciary duties under applicable Israeli Law if such adjustment were to be given effect. In the event of any material changes to the facts and circumstances of such Intervening Event, the Company shall be required to deliver a new notice to the Parent and to comply with the requirements of this ‎‎Section 5.3 with respect to such facts and circumstances, and the four (4) Business Day period referred to in clauses (A) and (B) above shall be deemed to have re-commenced on the date of such new notice

(e)                The Company agrees that any breach of this ‎Section 5.3 by any of the Subsidiaries of the Company or its or their Representatives shall be deemed to be a breach of this Agreement by the Company (other than any inadvertent breaches thereof not intended to result in an Acquisition Proposal).

Section 5.4             Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to ‎‎‎ARTICLE IX and the Effective Time, upon reasonable prior notice and subject to applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent and its authorized Representatives (which include the Financing Sources) reasonable access during normal business hours and without undue disruption of normal business activity during the period prior to the Effective Time to the properties, Contracts, books and records and personnel of the Company; provided, however, that the Company may restrict or otherwise prohibit access to (i) any documents or information to the extent that any applicable Law requires the Company to restrict or otherwise prohibit access to such documents or information, (ii) any documents or information that, in the reasonable judgment of the Company, would result in the loss of attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information, (iii) any information that would result in a breach of a Contract to which the Company or its Subsidiaries is a party or otherwise bound would violate or cause a default under, or give a third party the right to terminate or accelerate the rights under, such Contract, or (iv) any information that is reasonably pertinent to any litigation in which the Company or its Subsidiaries, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties; provided further that, in each case of clauses (i), (ii) and (iii) above, the Company will use commercially reasonable efforts to seek any required consent or implement appropriate procedures to enable the disclosure of such information (including, if applicable, in a manner that does not jeopardize any attorney-client privilege); and provided further, that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access contemplated by this ‎‎‎Section 5.4 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the rights and remedies available to Parent and Merger Sub hereunder. Any investigation conducted pursuant to the access contemplated by this ‎‎‎Section 5.4 shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company and its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or its Subsidiaries. Without limiting the generality of the foregoing, Parent shall schedule and coordinate all inspections with the Company’s Chief Financial Officer (or such other Person as may be designated by the Company’s Chief Financial Officer) and shall give the Company reasonable prior written notice thereof, setting forth the inspection or materials that Parent or its Representatives intend to conduct or review, as applicable. Any access to the Company’s properties shall be subject to any landlord rights and the Company’s reasonable security measures and insurance requirements. The terms and conditions of the Confidentiality Agreement shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this ‎‎‎Section 5.4.

Section 5.5             Director and Officer Resignation. Prior to the Closing, except as otherwise may be agreed by Parent, the Company shall obtain resignation letters from each of the members of the board of directors and officers of the Company and its Subsidiaries, in each case with the resignation to be effective as of the Effective Time and solely in such director or officer's capacity and title (and, for the sake of clarity, with respect to officers, not position or duties nor otherwise in a manner adversely affecting the entitlement to compensation, severance or benefits) as a director or officer, as applicable.

Section 5.6             Certain Litigation. Each party hereto shall promptly advise the other parties hereto of any Legal Proceedings commenced after the date hereof or threatened against such party or any of its directors, officers (in their capacity as such) by any Company Shareholders (on their own behalf or on behalf of the Company), before any court or other Governmental Authority, relating to this Agreement or the transactions contemplated hereby, and shall keep the other parties hereto reasonably informed regarding any such litigation. Each party hereto shall give the other parties hereto the opportunity to consult with such party regarding the defense or settlement of any such shareholder litigation and shall consider such other parties’ views with respect to such shareholder litigation; provided that, to the extent permissible under applicable Law, the Parent shall also have the right to participate (but not control) in the defense of any such Legal Proceedings and the Company shall not settle any such litigation without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).

Section 5.7             Termination of 401(k) Plans. The Company shall, or shall cause its applicable Subsidiary to, at least one Business Day prior to the Closing Date, (i) cease contributions to, and adopt written resolutions (or take other necessary and appropriate action(s)) to terminate, the Attunity Inc. Employee Savings Plan and any other Employee Plan that is a cash or deferred arrangement described in Section 401(k) of the Code (collectively, the “401(k) Plans”) in compliance with its terms and the requirements of applicable Law, (ii) make all employee and employer contributions to the 401(k) Plans on behalf of all participants under the 401(k) Plans for all payroll periods prior to the Closing Date, including such contributions that would have been made on behalf of such employees had the termination not occurred (regardless of any service or end-of-year employment requirements) but prorated for the portion of the plan year that ends on the plan termination date, and (iii) one hundred percent (100%) vest all participants under the 401(k) Plans, such termination, cessation of contributions and vesting to be effective no later than the Business Day preceding the Closing Date. As of the Effective Time, all employees of the Company and its Subsidiaries shall be eligible to participate in the Section 401(k) arrangement maintained by Parent (the “Parent 401(k) Plan”). Parent shall cause such Parent 401(k) Plan to accept rollover contributions (within the meaning of Section 401(a)(31) of the Code) from the employees of the Company, including any outstanding participant loans and related promissory notes.

ARTICLE VI

COVENANTS OF PARENT AND MERGER SUB

Section 6.1             Directors’ and Officers’ Indemnification and Insurance.

(a)                The Surviving Company and its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) honor and fulfill in all respects the obligations of the Company and its Subsidiaries under any and all indemnification agreements between the Company or its Subsidiaries and any of their respective current or former directors and officers, and any person who becomes a director or officer of the Company or its Subsidiaries prior to the Effective Time (each indemnified Person hereunder, the “Indemnified Persons”). In addition, during the period commencing at the Effective Time and ending on the seventh (7th) anniversary of the Effective Time, the Surviving Company and its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) cause the articles of association (and other similar organizational documents) of the Surviving Company and its Subsidiaries to contain provisions with respect to indemnification, insurance, exculpation and the advancement of expenses that are at least as favorable as the indemnification, insurance, exculpation and advancement of expenses provisions contained in the Charter Documents as of the date hereof, and during such seven (7)-year period, such provisions shall not be repealed, amended or otherwise modified in any manner except as required by applicable Law.

(b)               Without limiting the provisions of ‎‎Section 6.1(a), during the period commencing at the Effective Time and ending on the seven (7th) anniversary of the Effective Time, to the fullest extent permitted by applicable Law (and subject to the limitations set forth in Section 263 of the ICL), the Surviving Company and its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) indemnify and hold harmless each Indemnified Person from and against any costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, proceeding, investigation or inquiry, whether civil, criminal, administrative or investigative, to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of or pertains directly or indirectly to (i) any action or omission or alleged action or omission in such Indemnified Person’s capacity as a director, officer, employee or agent of the Company or its Subsidiaries or other Affiliates (regardless of whether such action or omission, or alleged action or omission, occurred prior to, at or after the Effective Time), or (ii) any of the transactions contemplated by this Agreement (including with respect to any acts or omissions occurring in connection with the approval and adoption of this Agreement and the consummation of the transactions contemplated hereby, including the consideration, approval and adoption thereof and the process undertaken in connection therewith and any claim relating thereto); provided, however, that if, at any time prior to the seven (7th) anniversary of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting a claim for indemnification under this ‎‎Section 6.1(b), then the claim asserted in such notice shall survive the seven (7th) anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, during the period commencing at the Effective Time and ending on the seven (7th) anniversary of the Effective Time, to the fullest extent permitted by applicable Law (and subject to the limitations set forth in Section 263 of the ICL), the Surviving Company and its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, in accordance with the organizational documents of the Company as in effect on the date of this Agreement, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Person in connection with any such claim, proceeding, investigation or inquiry upon receipt of an undertaking by such Indemnified Person to repay such advances if it is ultimately decided in a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification. In the event of any such claim, proceeding, investigation or inquiry, (i) the Surviving Company shall have the right to control the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, the Surviving Company will be deemed to have waived any right to object to the Indemnified Person’s entitlement to indemnification hereunder with respect thereto), (ii) each Indemnified Person shall be entitled to retain his or her own counsel, whether or not Surviving Company shall elect to control the defense of any such claim, proceeding, investigation or inquiry, (iii) the Surviving Company shall pay all reasonable and documented fees and expenses of any counsel retained by an Indemnified Person, promptly after statements therefor are received if (x) the Surviving Company has not elected to control the defense of any such claim, proceeding, investigation or inquiry or (y) an Indemnified Person has been advised by its outside counsel that there could be a conflict of interest if the same counsel were to represent such Indemnified Person and the Surviving Company or one or more of its Affiliates (and in such case the Surviving Company shall not have the right to control the defense of such Indemnified Person with respect to matters where such conflict exists or is reasonably likely to exist), and (iv) no Indemnified Person shall be liable for any settlement effected without his or her prior express written consent. Notwithstanding anything to the contrary set forth in this ‎‎Section 6.1(b) or elsewhere in this Agreement, neither the Surviving Company nor any of its Affiliates shall settle or otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, proceeding, investigation or inquiry for which indemnification may be sought by an Indemnified Person under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such claim, proceeding, investigation or inquiry.

(c)                During the period commencing at the Effective Time and ending on the (7th) anniversary of the Effective Time, the Surviving Company shall (and Parent shall cause the Surviving Company to) maintain in effect the Company’s current directors’ and officers’ liability insurance (“D&O Insurance”), in respect of acts or omissions occurring at or prior to the Effective Time, covering each person covered by the D&O Insurance, providing benefits and levels of coverage and with policy terms (including with respect to deductibles and exclusions), limits, amounts and conditions that are no less favorable than those of the D&O Insurance; provided, however, that in satisfying its obligations under this ‎‎Section 6.1(c), Parent and the Surviving Company shall not be obligated to pay annual premiums in excess of three hundred percent (300%) of the aggregate amount of premiums paid by the Company for coverage for its current fiscal year (which premiums the Company represents and warrants to be as set forth in ‎Section 6.1(c) of the Company Disclosure Letter) (such 300% amount, the “Maximum Annual Premium”); and if the annual premiums of such insurance coverage exceed such amount, Parent and the Surviving Company shall be obligated to obtain a policy with the greatest coverage available for an annual premium not exceeding the Maximum Annual Premium. Notwithstanding anything to the contrary set forth in this Agreement, prior to the Effective Time, the Company may, in its sole discretion, purchase a seven-year “tail” prepaid policy on the D&O Insurance; provided that the premium payable for such a “tail” policy shall not exceed 400% of the aggregate amount of the premiums currently payable by the Company for annual coverage of the D&O Insurance (such amount of premium, the “D&O Tail Expense”). In the event that the Company purchases such a “tail” policy prior to the Effective Time, the Surviving Company shall (and Parent shall cause the Surviving Company to) maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder, in lieu of all other obligations of Parent and the Surviving Company under the first sentence of this ‎‎Section 6.1(c) for so long as such “tail” policy shall be maintained in full force and effect.

(d)               Parent hereby acknowledges that the Indemnified Persons may have certain rights to indemnification, advancement of expenses and/or insurance provided by other Persons. Parent hereby agrees that (i) Parent and the Surviving Company are the indemnitors of first resort (i.e., their obligations to the Indemnified Persons are primary and any obligation of such other Persons to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any such Indemnified Person are secondary), (ii) Parent and the Surviving Company shall be required to advance the full amount of expenses incurred by any such Indemnified Person and shall be liable for the full indemnifiable amounts, without regard to any rights any such Indemnified Person may have against any such other Person and (iii) Parent and the Surviving Company waive, relinquish and release such other Persons from any and all claims against any such other Persons for contribution, subrogation or any other recovery of any kind in respect thereof. Each of Parent and the Surviving Company further agrees that no advancement or payment by any of such other Persons on behalf of any such Indemnified Person with respect to any claim for which such Indemnified Person has sought indemnification from the Surviving Company shall affect the foregoing and such other Persons shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person against the Surviving Company.

(e)                If Parent or the Surviving Company or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or Surviving Company or entity of such consolidation or merger, or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Company shall assume all of the obligations of Parent and the Surviving Company set forth in this ‎‎Section 6.1.

(f)                The obligations set forth in this ‎‎Section 6.1 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person (or any other person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in ‎Section 6.1(c) (and their heirs and representatives)) without the prior written consent of such affected Indemnified Person or other person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in ‎Section 6.1(c) (and their heirs and representatives). Each of the Indemnified Persons or other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in ‎‎Section 6.1(c) (and their heirs and representatives) are intended to be third party beneficiaries of this ‎‎Section 6.1, with full rights of enforcement as if a party thereto. Subject to applicable Law, the rights of the Indemnified Persons (and other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in ‎Section 6.1(c) (and their heirs and representatives)) under this ‎‎Section 6.1 shall be in addition to, and not in substitution for, any other rights that such persons may have under the articles of association, certificates of incorporation, bylaws or other equivalent organizational documents, any and all indemnification agreements of or entered into by the Company or its Subsidiaries, any policy that is or has been in existence with respect to the Company or its Subsidiaries for any of their respective directors, officers or other employees, or under applicable Law (whether at law or in equity); and nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims thereunder.

(g)                The provisions of this ‎‎Section 6.1 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Persons, their heirs and their Representatives and are in addition to, and not in substitution for, any other rights to indemnification that any such Person may have by contract or otherwise. Notwithstanding any other provision of this Agreement to the contrary, this ‎‎Section 6.1 shall survive the consummation of the Merger indefinitely. Parent hereby guarantees and undertakes to perform, on an independent and standalone basis, all of the obligations and liabilities of the Surviving Company pursuant to this ‎‎Section 6.1. The obligations and liability of Parent, the Surviving Company and their respective Subsidiaries under this ‎‎Section 6.1 shall be joint and several.

Section 6.2             Employee Matters.

(a)                Until December 31, 2019 (or, if earlier, the termination date of the relevant Continuing Employee), the Surviving Company shall (or Parent shall cause the Surviving Company to) provide to all employees of each of the Company and the Company Subsidiaries who continue to be employed by the Surviving Company or its Subsidiaries immediately following the Effective Time (“Continuing Employees”) (i) a salary or wage level and short-term cash bonus opportunity not lower than the salary or wage level and short-term cash bonus opportunity to which each Continuing Employee was entitled immediately prior Effective Time, and (ii) severance, social benefits, and employee benefits (other than defined non-statutory benefit pension, non-statutory deferred compensation, equity or equity-based, or retiree or post-termination health or welfare benefits) that are comparable in the aggregate to the severance, social benefits, and employee benefits (other than defined non-statutory benefit pension, non-statutory deferred compensation, equity or equity-based, or retiree or post-termination health or welfare benefits) that are provided to similarly situated employees of Parent or any of its Affiliates. Notwithstanding anything to the contrary contained herein, this ‎‎Section 6.2(a) shall not be construed as (i) limiting a Continuing Employee’s contractual rights, or rights under applicable Laws, to compensation or benefits or (ii) providing any continuing employee with the right to receive incentive equity compensation or any deferred compensation or other similar arrangements or any particular term or condition of employment.

(b)               With respect to each Employee Plan, including severance, vacation and paid sick leave plans, sponsored, maintained or contributed to by the Company or the Company Subsidiaries, Parent shall cause the Surviving Company to grant, or cause to be granted to, all Continuing Employees with credit for all service with the Company and the Company Subsidiaries, and their respective predecessors, prior to the Effective Time for purposes of eligibility to participate, vesting, and solely with respect to severance and paid time off, determining level of benefits; provided that such credit for service shall only be provided to the same extent and for the same purpose that the Continuing Employees’ service was credited under the corresponding Employee Plans in which the Continuing Employees participate immediately prior to the Closing Date and no such credit for service shall be provided to the extent it would result in a duplication of compensation or benefits for the same period of service. In addition, with respect to the benefit plans providing medical, dental, vision or prescription drug coverage maintained by Parent or the Surviving Company in which the Continuing Employees may participate during the calendar year in which the Effective Time occurs (“Parent Health Plan”), Parent shall cause the Surviving Company to use commercially reasonable efforts to: (i) ensure that no limitations or exclusions as to pre-existing conditions, evidence of insurability or good health, waiting periods or actively-at-work exclusions or other limitations or restrictions on coverage are applicable to any Continuing Employees or their dependents or beneficiaries to the extent such limitations, exclusions, or waiting periods were waived or satisfied by the Continuing Employees or their dependents or beneficiaries under the corresponding Employee Plans providing medical, dental, vision or prescription drug coverage in which such Continuing Employees participated immediately prior to the Effective Time; and (ii) ensure or cause to be ensured that any costs or expenses incurred by Continuing Employees (and their dependents or beneficiaries) under any Employee Plan providing medical, dental, vision or prescription drug coverage during the portion of the plan year of the relevant Employee Plan up to (and including) the Effective Time are taken into account for purposes of satisfying applicable deductible, co-payment, coinsurance, maximum out-of-pocket provisions under any Parent Health Plan for the corresponding plan year.

(c)                Nothing in this Agreement, including this ‎Section 6.2, whether express or implied, shall: (i) confer upon any current or former director, officer, employee or consultant of each of the Company and its Subsidiaries, or any representative, beneficiary or dependent thereof, or any other Person any rights or remedies, including any right to employment or continued employment for any period or terms of employment, of any nature whatsoever; (ii) be interpreted to prevent or restrict Parent or its Affiliates from establishing, amending, modifying or terminating the employment or terms of employment of any such employee after the Effective Time or any Employee Plan or any other benefit or compensation plan, program, policy, agreement, arrangement, or contract at any time assumed, established, sponsored or maintained by Parent or any of its Affiliates; or (iii) be treated as an amendment or other modification of any Employee Plan or other benefit or compensation plan, program, policy, agreement, or arrangement. No provision of this Agreement, including this ‎Section 6.2, shall create any third party beneficiary rights in any Person, including any employee, any beneficiary or dependents thereof, or any collective bargaining representative thereof.

Section 6.3             Obligations of Merger Sub. Parent shall take all action necessary to cause Merger Sub and the Surviving Company to perform their respective obligations under this Agreement and to consummate the transactions contemplated hereby upon the terms and subject to the conditions set forth in this Agreement.

Section 6.4             Obligations of Ultimate Parent and its Subsidiaries. Ultimate Parent and its Subsidiaries, on a consolidated basis, shall maintain at all times until the consummation of the Closing a cash balance of at least $100,000,000, which cash balance shall be comprised of cash and cash equivalents on hand that is available to consummate the transactions contemplated by this Agreement at the Closing.

ARTICLE VII

ADDITIONAL COVENANTS OF ALL PARTIES

Section 7.1             Reasonable Best Efforts to Complete. Upon the terms and subject to the conditions set forth in this Agreement, each of Parent, Merger Sub and the Company shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing, all things reasonably necessary, proper or advisable under applicable Law or otherwise to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including using reasonable best efforts to: (i) cause the conditions set forth in ‎‎ARTICLE VIII to be satisfied; (ii) obtain all necessary actions or Approvals from Governmental Authorities and make all necessary registrations, declarations and filings with Governmental Authorities that are necessary to consummate the Merger and the transactions contemplated hereby; and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement. In addition to the foregoing, neither Parent or Merger Sub, on the one hand, nor the Company, on the other hand, shall take any action, or fail to take any action, that is intended to, or has (or would reasonably be expected to have) the effect of, preventing, impairing, delaying or otherwise adversely affecting the consummation of the Merger or the ability of such party to fully perform its obligations under this Agreement (including, with respect to Parent, any action that would reasonably be expected to materially interfere with Parent’s (or any of its Affiliates’) ability to make available to the Paying Agent at the Effective Time funds sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement). Notwithstanding anything to the contrary herein, (a) the Company shall not be required prior to the Effective Time to pay any consent or other similar fee, “profit sharing” or other similar payment or other consideration (including increased rent or other similar payments or any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or the provision of additional security (including a guaranty) to obtain the consent, waiver or approval of any Person under any Contract, and (b) the parties’ obligations with respect to the matters set forth in ‎Section 7.2 shall be governed exclusively by ‎Section 7.2.

Section 7.2             Regulatory Filings. Each of Parent and Merger Sub shall (and shall cause their respective Affiliates to, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and Antitrust Division of the United States Department of Justice a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act, as soon as practicable after the date of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with the Governmental Authorities set forth on Section 7.2 of the Company Disclosure Letter as soon as practicable after the date of this Agreement and in any event before the expiration of any applicable legal deadline. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that reasonably may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the Antitrust Division of the United States Department of Justice or the Governmental Authorities of any other applicable jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) subject to the terms of this ‎Section 7.2, use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required Approvals under any other Antitrust Laws applicable to the Merger as soon as practicable, and to avoid any impediment to the consummation of the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the Antitrust Division of the United States Department of Justice or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Merger.

(b)               Parent and/or its Affiliates shall execute and deliver an undertaking in customary form in favor of the OCS to comply with applicable Law (if and when required to do so).

(c)                Each of Parent and Merger Sub shall, and shall cause their respective Affiliates to, if applicable, on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement or with respect to any filings that have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any material oral communications with any Governmental Authority regarding the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions and a complete copy of any filing with any Governmental Authority) with a Governmental Authority regarding the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in ‎‎Section 8.1(b). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential information.

(d)               Each of Parent, Merger Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by ‎‎Section 7.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by ‎‎Section 7.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and use reasonable best efforts to seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.

(e)                Without limiting the generality of the foregoing, Parent shall, and shall cause each of its Affiliates, to take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with any applicable Law (including Antitrust Law), and to enable all waiting periods under any applicable Law (including Antitrust Law) to expire, and to avoid or eliminate each and every impediment under any applicable Law (including Antitrust Law) asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as soon as practicable and in any event prior to the Outside Date; provided that notwithstanding the foregoing or anything else in this Agreement to the contrary, (i) neither Parent nor Merger Sub (nor their respective Affiliates, if applicable) or the Company and its Subsidiaries shall be required to sell, divest, license or otherwise dispose of any capital stock or other equity or voting interest, assets (whether tangible or intangible), rights, products or businesses of Parent or Merger Sub (or their respective Affiliates, if applicable), on the one hand, and the Company and its Subsidiaries, on the other hand, and (ii) neither Parent nor Merger Sub (nor their respective Affiliates) shall be required to take any action or enter into any Order (each of clause (i) and (ii), a “Regulatory Action”) if such Regulatory Action, individually or in the aggregate, would reasonably be expected to have a material adverse effect on Parent and its Subsidiaries (including the Company and its Subsidiaries) after giving effect to the Merger.

(f)                Ultimate Parent, Parent and Merger Sub agree that between the date hereof and the Effective Time (or the earlier termination of this Agreement pursuant to ‎‎ARTICLE IX), each of Ultimate Parent, Parent and Merger Sub shall not, and shall not permit any of its controlled Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets if such business or Person competes in any line of business of the Company if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger or consolidation would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) materially delay or prevent the consummation of the Merger or the other transactions contemplated by this Agreement.

Section 7.3             Company Shareholders Meeting.

(a)                As soon as reasonably practicable following the date of this Agreement, the Company shall (i) establish a record date for, duly call, give notice of and convene a special meeting of its shareholders (the “Company Shareholders Meeting”) for the purpose of obtaining the Company Shareholder Approval, and (ii) publish the notice of the Company Shareholders Meeting (with the proxy card required under the ICL and, for the sake of clarity, the regulations promulgated thereunder). Without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (i) the adoption of this Agreement and all transactions contemplated thereby and (ii) the Director Proposal shall be the only matters (other than procedural matters) which the Company shall propose to be acted on by the shareholders at the Company Shareholders Meeting. As soon as reasonably practicable following the date of this Agreement (and in any event within fifteen (15) Business Days), the Company shall prepare and furnish to the SEC on Form 6-K a proxy statement for the Company Shareholders Meeting (the “Proxy Statement”). The Company shall otherwise comply with the notice requirements applicable to the Company in respect of the Company Shareholders Meeting pursuant to the applicable Law, including the ICL and the regulations promulgated thereunder and the Charter Documents. Unless this Agreement is terminated pursuant to ‎‎ARTICLE IX or as Parent and the Company may otherwise agree, the Company Shareholders Meetings shall be held no later than 45 days after the publication of the notices regarding the Company Shareholders Meetings. Unless the Company Board has effected a Company Board Recommendation Change, the Company shall include the Company Board Recommendation in the Proxy Statement and use its reasonable best efforts to cause the Proxy Statement to be mailed or made available to the shareholders of the Company as promptly as practicable following its filing date. Prior to the mailing of the Proxy Statement, unless the Company Board has effected a Company Board Recommendation Change, the Company (x) shall provide Parent with a reasonable opportunity to review and comment on any drafts of the Proxy Statement and related correspondence and filings, and (y) shall not unreasonably refuse to include in such drafts, correspondence and filings all comments reasonably proposed by Parent, provided that the Company shall have no obligation to include any such comments to the extent that the Company determines in good faith, in consultation with its outside counsel, that including such comments would result in the Proxy Statement containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. If at any time prior to the Effective Time any event shall occur, or fact or information shall be discovered, by either the Company, Parent or Merger Sub that should be set forth in an amendment of or a supplement to the Proxy Statement, such party shall inform the others thereof and the Company shall, in accordance with the procedures set forth in this ‎‎Section 7.3(a), prepare such amendment or supplement as soon thereafter as is reasonably practicable and to the extent required by applicable Law, cause such amendment or supplement to be promptly distributed to the shareholders of the Company. Notwithstanding the foregoing provisions of this ‎Section 7.3(a), if, on a date for which the Company Shareholders Meeting is scheduled, the Company has not received proxies representing a sufficient number of Company Shares to obtain the Company Shareholder Approval, whether or not a quorum is present, the Company shall have the right to make one or more successive postponements or adjournments of the Company Shareholders Meeting; provided that the Company Shareholders Meeting is not postponed or adjourned to a date that is in the aggregate more than twenty (20) days after the date for which the Company Shareholders Meeting was originally scheduled (other than, any adjournments or postponements required by applicable Law, including adjournments or postponements to the extent required under applicable Law to ensure that any required supplement or amendment to the Proxy Statement is provided or made available to the Company Shareholders or to permit dissemination of information which is material to shareholders voting at the Company Shareholders Meeting and to give the Company Shareholders sufficient time to evaluate any such supplement or amendment or other information). In the event that Parent or any Person listed in Section 320(c) of the ICL casts any votes in respect of the Merger, Parent shall disclose to the Company its interest in the Company Shares so voted. At the Company Shareholders Meeting, Parent and Merger Sub shall cause any Company Shares owned by them and their Affiliates (if any) to be voted in favor of the approval of the Merger and the other transactions contemplated by this Agreement.

(b)               Notwithstanding the foregoing or anything else herein to the contrary, and subject to compliance with the terms of ‎‎Section 5.3, in connection with any disclosure regarding a Company Board Recommendation Change relating to a Superior Proposal or an Acquisition Proposal, the Company shall not be required to provide to Parent or Merger Sub the opportunity to review or comment on (or include comments proposed by Parent or Merger Sub in) or permit Parent or Merger Sub to participate in any discussions with the SEC or any other Governmental Authority regarding the Proxy Statement, or any amendment or supplement thereto, or any comments thereon or any other filing by the Company with the SEC or any other Governmental Authority, with respect to such disclosure.

(c)                If at any time prior to the Effective Time any event or circumstance relating to the Company or Parent or any of the Company’s or Parent’s Subsidiaries, or their respective officers or directors, is discovered by the Company or Parent, respectively, which, pursuant to the Exchange Act, should be set forth in an amendment or a supplement to the Proxy Statement, such party shall promptly inform the others and the Company shall as promptly as reasonably practicable file or furnish any necessary amendment or supplement to the Proxy Statement with the SEC and, to the extent required by applicable Law, disseminate the information contained in such amendment or supplement to the Company Shareholders. Each of Parent, Merger Sub and the Company agrees to correct any information provided by it for use in the Proxy Statement which shall have become false or misleading.

(d)               Once the Company has established the record date for the Company Shareholders Meeting, the Company shall not change such record date or establish a different record date without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law. In the event that the date of the Company Shareholders Meeting as originally called is for any reason adjourned, postponed or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing, it shall use reasonable best efforts to implement such adjournment or postponement or other delay in such a way that the Company does not establish a new record date for the Company Shareholders Meeting, as so adjourned, postponed or delayed, except as required by applicable Law. Unless this Agreement is validly terminated in accordance with ‎ARTICLE IX, the Company shall submit this Agreement and the Merger to its shareholders at the Company Shareholders Meeting, even if the Company Board (or a committee thereof) has effected a Company Board Recommendation Change. Notwithstanding the foregoing, the Company may adjourn or postpone the Company Shareholders Meeting as and to the extent required by applicable Law.

Section 7.4             Merger Proposal; Certificate of Merger.

(a)                Subject to the ICL and the regulations promulgated thereunder, as promptly as practicable following the date hereof the Company and Merger Sub, as applicable, shall take the following actions within the timeframes set forth herein; provided, however, that any such actions or the timeframe for taking such action shall be subject to any amendment in the applicable provisions of the ICL and the regulations promulgated thereunder (and in case of an amendment thereto, such amendment shall automatically apply so as to amend this ‎‎Section 7.4(a) accordingly): (a) cause a merger proposal (in the Hebrew language) substantially in the form of Exhibit B (the “Merger Proposal”) to be executed in accordance with Section 316 of the ICL, (b) deliver the Merger Proposal to the Companies Registrar within three (3) days from the calling of the shareholders meetings, (c) the Company shall cause a copy of the Merger Proposal to be delivered to its secured creditors, if any, no later than three (3) days after the date on which the Merger Proposal is delivered to the Companies Registrar, (d) promptly after the Company shall have complied with the preceding sentence and with clauses (i) and (ii) of this ‎‎‎Section 7.4(a), but in any event no more than three (3) days following the date on which such notice was sent to the creditors, the Company and Merger Sub shall inform the Companies Registrar, in accordance with Section 317(b) of the ICL, that notice was given to their respective creditors, if any, under Section 318 of the ICL (and regulations promulgated thereunder), (e) each of the Company and, if applicable, Merger Sub, shall: (i) publish a notice to its creditors, stating that a Merger Proposal was submitted to the Companies Registrar and that the creditors may review the Merger Proposal at the office of the Companies Registrar, Company’s registered office or Merger Sub’s registered offices, as applicable, and at such other locations as the Company or Merger Sub, as applicable, may determine, in (A) two daily Hebrew newspapers, on the day that the Merger Proposal is submitted to the Companies Registrar, (B) in a popular newspaper in New York as may be required by applicable Law; (ii) within four (4) business days from the date of submitting the Merger Proposal to the Companies Registrar, send a notice by registered mail to all of the “Substantial Creditors” (as such term is defined in the regulations promulgated under the ICL), if any, that the Company or Merger Sub, as applicable, is aware of, in which it shall state that a Merger Proposal was submitted to the Companies Registrar and that the creditors may review the Merger Proposal at such additional locations, if such locations were determined in the notice referred to in the immediately preceding clause (i); and (iii) if applicable, send to the Company’s labor union (va'ad ovdim) or display in a prominent place at the Company’s premises a copy of the notice published in a daily Hebrew newspaper (as referred to in clause (i)(A) of this ‎‎Section 7.4(a), no later than three (3) business days following the day on which the Merger Proposal was submitted to the Companies Registrar, (f) not later than three (3) days after the date on which the Company Shareholder Approval is received, the Company shall (in accordance with Section 317(b) of ICL and the regulations thereunder) inform the Companies Registrar of such approval, and (g) in accordance with the customary practice of the Companies Registrar, the Company and Merger Sub shall request, following coordination with Merger Sub, that the Companies Registrar declare the Merger effective and issue the Certificate of Merger upon such date as the Company and Merger Sub shall advise the Companies Registrar. For the avoidance of doubt, and notwithstanding any provision of this Agreement to the contrary, it is the intention of the parties that the Merger shall be declared effective and the Certificate of Merger shall be issued on the Closing Date, as a condition to the Closing taking place. For purposes of this ‎‎‎Section 7.4(a), “business day” shall have the meaning set forth in the Merger Regulations 5760-2000 promulgated under the ICL.

(b)               The sole shareholder of Merger Sub has approved the Merger subject to the satisfaction or waiver (to the extent permitted hereunder) of all the conditions to Closing (other than those that by their nature may only be satisfied or waived at Closing). No later than three days after the date of such approval, Merger Sub shall (in accordance with Section 317(b) of the ICL and the regulations thereunder) inform the Companies Registrar of such approval.

Section 7.5             Anti-Takeover Statute. In the event that any anti-takeover or other similar statute is or becomes applicable to this Agreement or any of the transactions contemplated by this Agreement, the Company, Parent and Merger Sub shall use their respective reasonable best efforts to ensure that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms and subject to the conditions set forth in this Agreement and otherwise to minimize the effect of such statute on this Agreement and the transactions contemplated hereby.

Section 7.6             Control of Operations. Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s operations prior to the Effective Time.

Section 7.7             Public Statements and Disclosure. None of the Company, on the one hand, or Parent and Merger Sub, on the other hand, shall issue any public release or make any public announcement concerning this Agreement or the transactions contemplated by this Agreement without the prior written consent of the other (which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or announcement may be required by applicable Law or the rules or regulations of any applicable Israeli or United States securities exchange or regulatory or Governmental Authority to which the relevant party, or an Affiliate thereof, is subject or submits, wherever situated, in which case the party required to make the release or announcement shall use commercial reasonable efforts to allow the other party or parties hereto reasonable time to comment on such release or announcement in advance of such issuance (it being understood that (i) the final form and content of any such release or announcement, as well as the timing of any such release or announcement, shall be at the final discretion of the disclosing party and (ii) a copy of this Agreement will be filed with the SEC). Notwithstanding the foregoing, (a) nothing in this ‎Section 7.7 shall limit the Company’s or the Company Board’s rights to make public statements about its actions in accordance with ‎Section 5.2, ‎Section 5.3 and ‎Section 9.1 without prior consultation, (b) the Company will no longer be required to consult with Parent, and Parent will no longer be required to consult with the Company, in connection with any such press release or public statement if the Company Board has made any Company Board Recommendation Change and (c) the requirements of this Section 7.7 shall not apply to any disclosure by the Company or Parent of any information concerning this Agreement or the transactions contemplated hereby in connection with any dispute between the parties regarding this Agreement, the Merger or the other transactions contemplated by this Agreement.

Section 7.8             Confidentiality. Parent, Merger Sub and the Company hereby acknowledge that Parent and the Company have previously executed the Confidentiality Agreement, which will continue in full force and effect in accordance with its terms.

Section 7.9             Tax Rulings.

(a)                As soon as practicable after the date of this Agreement, and no later than fifteen (15) Business Days after the date hereof, the Company shall instruct its Israeli counsel, advisors and/or accountants to prepare and file with the ITA an application for a ruling (which shall be approved by Parent or its Israeli tax advisors prior to its submission and which approval shall not be unreasonably withheld, conditioned or delayed) confirming that (i) the cancellation and exchange of the Company 102 Options and Company ▇▇▇ ▇▇▇▇ and conversion of the Company 102 Shares, each in accordance with ‎ARTICLE II, shall not be regarded as a violation of the “requisite holding period” (as such term is defined in Section 102 of the Ordinance) so long as the respective Option Consideration, RSU Consideration and the Merger Consideration, as applicable, are deposited with the 102 Trustee until the end of the respective holding period and (ii) the deposit of the respective Option Consideration, RSU Consideration and the Merger Consideration, as applicable, with the Paying Agent and the 102 Trustee shall not be subject to any withholding obligation (which ruling may be subject to customary conditions regularly associated with such a ruling) (the “Option Tax Ruling”). The Company shall include in the request for the Option Tax Ruling a request to exempt Parent or its Affiliates, the Surviving Company, the Paying Agent and their respective agents from any withholding obligation in relation to any payments made with respect to any Company 102 Options, Company 3(i) Options, Company 102 RSUs or Company 102 Shares. If the Option Tax Ruling is not granted prior to the Closing or in accordance with the instructions of the ITA, the Company shall seek to obtain prior to the Closing an interim Tax ruling confirming, among other things, that Parent, its Affiliates and any Person acting on its behalf (including the Paying Agent) shall be exempt from Israeli withholding Tax in relation to any payments made with respect to any Company 102 Options, Company 3(i) Options, Company 102 RSUs or Company 102 Shares to the, Paying Agent, the 102 Trustee or the Company in connection with the Merger (the “Interim Option Tax Ruling”). To the extent that prior to the Closing an Interim Option Tax Ruling shall have been obtained, then all references herein to the Option Tax Ruling shall be deemed to refer to such Interim Option Tax Ruling, until such time that a final definitive Option Tax Ruling is obtained.

(b)               As soon as practicable following the date of this Agreement but in no event later than ten (10) Business Days after the date hereof, the Company shall instruct its Israeli counsel, advisors and accountants to prepare and file with the ITA an application for a ruling (which shall be approved by Parent or its Israeli tax advisors prior to its submission and which approval shall not be unreasonably withheld, conditioned or delayed) that (i) with respect to holders of Company Shares that are non-Israeli residents (as defined in the Ordinance or as will be determined by the ITA), (A) exempting Parent, its Affiliates, the Paying Agent, the Surviving Company and their respective agents from any obligation to withhold Israeli Tax from any consideration payable or otherwise deliverable pursuant to this Agreement, including the Merger Consideration, or clarifying that no such obligation exists, or (B) instructing Parent, its Affiliates, the Paying Agent, the Surviving Company and their respective agents on how such withholding is to be executed, and in particular, with respect to the classes or categories of holders of the Company Shares from which Tax is to be withheld (if any), the rate or rates of withholding to be applied and how to identify any such non−Israeli residents; (ii) with respect to holders of Company Shares that are Israeli residents (as defined in the Ordinance or as will be determined by the ITA) (other than Company Ordinary Shares subject to Section 102 of the Ordinance) (x) exempting Parent, its Affiliates, the Paying Agent, the Surviving Company and their respective agents from any obligation to withhold Israeli Tax from any consideration payable or otherwise deliverable pursuant to this Agreement, including the Merger Consideration, or clarifying that no such obligation exists, or (y) instructing Parent, its Affiliates, the Paying Agent, the Surviving Company and their respective agents on how such withholding is to be executed, and in particular, with respect to the classes or categories of holders of the Company Shares from which Tax is to be withheld (if any), the rate or rates of withholding to be applied; and (iii) with respect to holders of Company Options and Company RSUs which are not Company 102 Options, Company 3(i) Options and Company 102 RSUs, that are non-Israeli residents (as defined in the Ordinance or as will be determined by the ITA), (A) exempting Parent, its Affiliates, the Paying Agent, the Surviving Company and their respective agents from any obligation to withhold Israeli Tax at the source from any consideration payable or otherwise deliverable pursuant to this Agreement, including the Merger Consideration, or clarifying that no such obligation exists, or (B) instructing Parent, its Affiliates, the Paying Agent, the Surviving Company and their respective agents on how such withholding at the source is to be executed, the rate or rates of withholding to be applied and how to identify any such non−Israeli residents (the “Withholding Tax Ruling”).

(c)                Without limiting the generality of ‎‎Section 7.2, each of the Company and Parent shall cause their respective Israeli counsel, advisors and accountants to coordinate all material activities, and to cooperate with each other, with respect to the preparation and filing of such application and in the preparation of any written or oral submissions that may be necessary, proper or advisable to obtain the Option Tax Ruling (including the Interim Option Tax Ruling) and the Withholding Tax Ruling. The final text of the Interim Option Tax Ruling, the Option Tax Ruling and the Withholding Tax Ruling shall be subject to the prior written confirmation of Parent or its counsel, which consent shall not be unreasonably withheld, conditioned or delayed. The Company and its Representatives shall not make any application to, or conduct any negotiation with, the ITA with respect to matters relating to the Interim Option Tax Ruling, the Options Tax Ruling and the Withholding Tax Ruling without prior approval by Parent or its Israeli tax advisors (which approval shall not be unreasonably withheld, conditioned or delayed), and will enable Parent’s Israeli tax advisors to participate in all meetings and pre-scheduled discussions with the ITA relating thereto. The Company’s Representatives shall provide Parent’s Israeli tax advisors a report of the discussions and/or meetings held with the ITA in which the Parent’s Israeli tax advisors did not participate. Subject to the terms and conditions hereof, the Company shall use commercially reasonable efforts to promptly take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to obtain the Interim Options Tax Ruling, the Options Tax Ruling and the Withholding Tax Ruling, as promptly as practicable.

Section 7.10         Financing

(a)                Ultimate Parent and Parent shall use their respective reasonable best efforts to take, or cause to be taken, including causing their respective Affiliates to take, all actions and to do, or cause to be done, all things necessary to arrange and obtain the Debt Financing on the terms and conditions (including, to the extent required, the full exercise of any “flex” provisions) described in the Debt Commitment Letter, including using their respective reasonable best efforts to (i) maintain in effect the Debt Commitment Letter, (ii) satisfy on a timely basis (or, if applicable, obtain waivers of) all conditions precedent applicable to Parent, Ultimate Parent or Merger Sub to obtaining the Debt Financing, (iii) enter into definitive agreements with respect thereto on terms and conditions described in or contemplated by the Debt Commitment Letter (such definitive agreements, the “Financing Agreements”) and comply with and maintain in effect the Financing Agreements to the extent required to consummate the Debt Financing at or prior to the Closing, and (iv) comply with their respective obligations under the Debt Commitment Letter in all material respects, and (v) consummate the Debt Financing at or prior to the Closing, including by enforcing their respective rights under the Debt Commitment Letter and the Financing Agreements and causing the Financing Sources and any other Persons providing Debt Financing to fund the full amount of the Debt Financing no later than the Closing. None of Ultimate Parent, Parent or Merger Sub shall agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, the Debt Commitment Letter or the Financing Agreements without the Company’s prior written consent, if such amendment, supplement, modification or waiver would reasonably be expected to, (A) reduce (or have the effect of reducing) the aggregate cash amount of the Debt Financing (unless the representations in Section 4.14 (as though made at the time of the effectuation of such amendment, modification, supplement or replacement) shall remain true and correct after taking into account such reduction), (B) impose new or additional conditions precedent to the funding of the Debt Financing, or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing, in a manner that would reasonably be expected to (x) delay, prevent or materially impede the consummation of the Merger, (y) make the timely funding of the Debt Financing less likely to occur on the Closing Date or (z) impose additional obligations on the Company or its Subsidiaries prior to the Closing Date, or (C) adversely impact the ability of Ultimate Parent, Parent or Merger Sub to enforce their respective rights against the other parties to the Debt Commitment Letter or, to the extent required to consummate the Debt Financing at or prior to the Closing, the Financing Agreements (provided that, for the avoidance of doubt, each of Ultimate Parent, Parent and Merger Sub may, without the prior written consent of the Company, amend, supplement or modify the Debt Commitment Letter to replace the Debt Commitment Letter with the Alternative Financing, or provide for the assignment of a portion of the Debt Financing to add agents, arrangers, lenders, bookrunners, purchasers or similar entities who have not executed the Debt Commitment Letter as of the date hereof or to reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto, in each case, as and to the extent provided in the Debt Commitment Letter). Upon any such amendment, supplement or modification of the Debt Commitment Letter in accordance with this ‎Section 7.10, the term “Debt Commitment Letter” shall mean the Debt Commitment Letter as so amended, supplemented or modified.  Neither Ultimate Parent nor Merger Sub shall terminate, or agree to terminate, the Debt Commitment Letters except (x) for assignments and replacements of an individual lender, (y) replacements of the Debt Financing with Alternative Financing, or (z) as contemplated by the Debt Commitment Letter immediately after funding of the Debt Financing. 

(b)               Ultimate Parent and Parent shall keep the Company reasonably informed on a reasonably current basis of the status of the Debt Financing and material developments with respect thereto. Ultimate Parent and Parent shall also provide the Company promptly drafts (when agreed in all material respects) and promptly following their execution (to the extent executed prior to the Closing Date), executed copies of any Financing Agreements.  Without limiting the foregoing, Ultimate Parent and Parent shall promptly (but in any event no more than 24 hours following Ultimate Parent or Parent, as applicable, obtaining Knowledge thereof) give the Company written notice (i) of any breach or default by Ultimate Parent, Parent, any of their respective Affiliates, any Financing Source or any other party to the Debt Commitment Letter or the Financing Agreements (or any event or circumstance, with or without notice, lapse of time, or both, would reasonably be expected to give rise to any material breach or default), (ii) of any threatened or actual withdrawal, repudiation, expiration, intention not to fund or termination of or relating to the Debt Commitment Letter, the Financing Agreements or the Debt Financing, or (iii) if for any reason Ultimate Parent or Parent in good faith no longer believes it will be able to obtain all or any portion of the Debt Financing needed to consummate the transactions contemplated hereby; provided, however, that in no event will Ultimate Parent or Parent be under any obligation to disclose any information pursuant to the preceding clauses (i) or (ii) that would jeopardize the protection of the attorney-client privilege (it being agreed that Ultimate Parent or Parent, as applicable, shall give notice to the Company of the fact that it is withholding such information pursuant to this proviso, and thereafter the Company and Ultimate Parent or Parent, as applicable, shall reasonably cooperate to cause such information to be provided, to the extent reasonably possible, in a manner that would not be expected to violate the applicable restriction). In furtherance and not in limitation of the foregoing in Section 7.10(a), in the event that any portion of the Debt Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter notwithstanding Ultimate Parent’s and Parent’s use of their respective reasonable best efforts to satisfy their respective obligations under Section 7.10(a), Ultimate Parent and Parent shall as promptly as practicable following the occurrence of such event notify the Company in writing and use their respective reasonable best efforts to, as promptly as practicable following the occurrence of such event, obtain alternative financing from alternative sources (the “Alternative Financing”) (x) in an amount sufficient to consummate the transactions contemplated hereby and (y) which does not contain any condition precedent to funding that would be materially more onerous than those contained in the Debt Commitment Letter on the date hereof, taken as a whole, or any terms that would reasonably be expected to prevent, delay or impede beyond the Outside Date the consummation of the Debt Financing or the transactions contemplated hereby; provided that in no event shall any Alternative Financing have the effects described in clauses (A) through (C) of Section 7.10(a).  Ultimate Parent and/or Parent shall promptly provide the Company with a true, correct, and complete copy of any new financing commitment letter relating to the Alternative Financing, together with any related exhibits, schedules, supplements, and term sheets, and a true, correct, and complete copy of any fee letter in connection therewith (it being understood that the fee amounts and market flex terms in such fee letter may be redacted in a customary manner so long as such redaction does not cover terms that would adversely affect the conditionality, availability or termination of the Debt Financing).  The obligations under this Section 7.10(b) shall apply equally to any such Alternative Financing (including any new financing commitment letter).

(c)                Prior to the Closing, the Company shall, and shall cause its Subsidiaries and Representatives to, use reasonable best efforts to provide all such reasonable cooperation in connection with the Debt Financing as may be reasonably requested by Parent and Ultimate Parent, including (i) making members of senior management and advisors of the Company or any of its Subsidiaries reasonably available for customary lender meetings, due diligence sessions, road shows, presentations with prospective lenders and rating agencies and cooperating with the Financing Sources and other prospective lenders in performing their due diligence, in each case upon reasonable notice at times and locations to be agreed and to the extent necessary, and otherwise cooperating with the marketing and syndication efforts for the Debt Financing, (ii) subject to customary confidentiality arrangements, providing due diligence materials to the Financing Sources and other prospective lenders, (iii) requesting customary payoff letters, lien terminations and instruments of discharge, to be delivered on the Closing Date, of all indebtedness contemplated by the Debt Commitment Letter to be paid off, discharged and terminated on the Closing Date, (iv) furnishing Ultimate Parent, Parent and the Financing Source with information, to the extent reasonably available to the Company, in connection with the preparation by Ultimate Parent and Parent of information memoranda, lender presentations, rating agency presentations, and similar and customary documents in connection with the Debt Financing, (v) executing and delivering definitive transaction documents for the Debt Financing, to the extent required on the Closing Date under the Debt Commitment Letter (and, for the avoidance of doubt, to the extent that each is effective only on or after the Closing Date), (vi) assisting in connection with the preparation of any pledge and security documents and providing information reasonably necessary to complete customary perfection certificates and other customary loan documents required in connection with the Debt Financing, (vii) reasonably cooperating with the Financing Sources in connection with their evaluation of the Company and its Subsidiaries’ ‎current assets, cash management and accounting systems, and policies and ‎procedures relating thereto for the purpose of establishing collateral arrangements and (viii) taking reasonable corporate (or organizational) actions (for the avoidance of doubt, directors and officers that will not be a continuing director or officer immediately following the Closing shall not be required to take such actions), subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided that neither the Company nor any of its Subsidiaries and none of their respective directors, officers or employees, shall be required to (x) pay any commitment or other similar fee or incur any other liability or expense (other than fees and expenses to be reimbursed by Parent upon five (5) Business Days’ notice) in connection with the Debt Financing prior to the Closing or (y) take any corporate or organizational action approving, or authorize, execute and deliver any document or contract relating to, the Debt Financing, which in any case is not contingent upon the Closing or that would be effective prior to the Closing; provided further that, notwithstanding anything to the contrary contained in this Section 7.10, the Company shall promptly (A) upon request, execute and deliver customary authorization and management representation letters to the extent required by the Financing Sources in connection with the Debt Financing, (B) to the extent requested by Parent at least ten (10) Business Days prior to the Closing Date, furnish all documentation and other information required under applicable “know your customer”, anti-money laundering rules and regulations and the requirements of 31 C.F.R. §1010.230 at least five (5) Business Days prior to the Closing Date, and (C) provide Parent, prior to the deadlines set forth in the Debt Commitment Letter, the Required Financial Information. The Company hereby consents to the use of all of its and its Subsidiaries' logos, names and trademarks in connection with the Debt Financing, so long as such use (i) is in a manner that is not intended to or would reasonably be expected to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and (ii) is solely in connection with a description of the Company, its business and products or the transactions contemplated hereby.

(d)               Parent shall reimburse the Company and its Subsidiaries for any reasonable and documented out-of-pocket costs and expenses incurred by them and their respective Representatives in performing their obligations under Section 7.10(c), promptly upon written demand by the Company therefor. Parent will also indemnify, defend, and hold harmless the Company, its Affiliates and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs, and expenses suffered, or incurred by any of them (including any of the foregoing incurred in defending against the foregoing) in connection with any action arising out of the Debt Financing (including any action taken in accordance with this Section 7.10), and any information used in connection therewith (other than historical financial information relating to the Company and its Subsidiaries provided by the Company in writing specifically for use in the Debt Financing), except to the extent such losses, damage, claims, costs or expenses arise from the willful and material breach of this Agreement by the Company as finally determined by a court of competent jurisdiction.

(e)                Parent and Merger Sub acknowledge and agree that the obtaining of the Debt Financing (including any Alternative Financing) or any other financing or funding is not a condition to Closing.

(f)                Notwithstanding the requirements of Section 7.10(c) or any other provision of this Agreement: (i) solely Ultimate Parent and Parent shall be responsible for provision of any pro forma financial information, including cost savings, synergies, capitalization, ownership, or other pro forma adjustments and any financial projections of the Company, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries or their respective Affiliates, (iii) nothing herein shall require cooperation or assistance from a Representative of the Company or any of its Affiliates to the extent such Representative or Affiliate is reasonably likely to incur any personal liability by providing such cooperation or assistance and (iv) nothing herein will require the Company, any of its Subsidiaries or Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Law, any duty, any contract, or obligation of confidentiality owing to a third-party, or jeopardize the protection of the attorney-client privilege.

(g)               Notwithstanding the provisions of Section 7.10(c) or any other provision of this Agreement, nothing in this Agreement will require the Company or any of its Subsidiaries and none of their respective directors, officers, employees, Affiliates or Representatives to (i) pay any commitment or other similar fee or incur any other Liability or expense (other than fees and expenses to be simultaneously reimbursed by Parent) in connection with the Debt Financing prior to the Closing, (ii) take any corporate or organizational action approving, or authorize, execute and deliver any document or contract relating to, the Debt Financing, (iii) pass resolutions or consents to approve or authorize the execution of the Debt Financing or execute or deliver any certificate, document, instrument or agreement (other than customary authorization letters), (iv) cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries, (v) cause any director, officer, employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (v) take any action that would reasonably be expected to result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material contract to which the Company or any of its Subsidiaries is a party or the organizational documents of the Company or its Subsidiaries or any Laws, (vi) provide access to or require the disclosure of any information that the Company or any of its Subsidiaries determines would jeopardize any attorney-client or other legal privilege of the Company or any of its Subsidiaries (in each case it being agreed that the Company shall give notice to Parent of the fact that it is withholding such information or documents pursuant to this clause, and thereafter the Company and Parent shall reasonably cooperate to cause such information to be provided, to the extent reasonably possible, in a manner that would not reasonably be expected to violate the applicable restriction), or (vii) require the preparation of any financial statements or information that are not reasonably available to it or prepared in the ordinary course of its financial reporting practice. Nothing contained in this Section 7.10 or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing.

Section 7.11         Delisting. The Company shall take or cause to be taken, and Parent shall cooperate with the Company in taking, or causing to be taken, all actions necessary to delist the Company Shares from NASDAQ and terminate registration under the Exchange Act, provided that such delisting and termination shall not be effective until or after the Effective Time.

Section 7.12         Settlement of Transaction Expenses and Other Liabilities. Solely to the extent the Company and its Subsidiaries have available cash on hand as of immediately prior to the Closing, the Company and its Subsidiaries will pay (in the manner reasonably requested in writing by Parent at least four (4) Business Days prior to Closing including, if requested, with cash in Israeli bank accounts) (i) any Company Expenses incurred and (ii) fund any underfunded pension obligations identified in Section 3.16(h) of the Company Disclosure Letter, in each case, at or prior to the Closing; provided, no such payments will be required to be made unless and until (i) all of the conditions to the Merger set forth in ARTICLE VIII have been satisfied or waived (other than those conditions that by their terms are to be satisfied or waived (if permitted hereunder) at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder) of such conditions at the Closing) and (ii) Parent has irrevocably confirmed in writing to the Company that it is prepared to consummate the Closing.

ARTICLE VIII

CONDITIONS TO THE MERGER

Section 8.1             Conditions. The respective obligations of Parent, Merger Sub and the Company to consummate the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction or waiver (except with respect to the condition set forth in ‎‎Section 8.1(a), which cannot be waived) by mutual written agreement of Parent and the Company, prior to the Effective Time, of each of the following conditions:

(a)                Company Shareholder Approval. The Company Shareholder Approval shall have been obtained.

(b)               Regulatory Filings or Approvals. The authorizations, consents, orders or approvals of, or declarations or filings with, the Governmental Authorities set forth on ‎‎Section 8.1 of the Company Disclosure Letter, shall have been filed, have occurred or have been obtained and shall be in full force and effect, and the expiration or early termination of any waiting period (and any extension thereof) under applicable Antitrust Laws shall have occurred or been granted.

(c)                Israeli Statutory Waiting Periods. Fifty (50) days shall have elapsed after the day of filing of the Merger Proposal with the Companies Registrar and thirty (30) days shall have elapsed after the day of approval of the Merger by the shareholders of each of the Company and Merger Sub.

(d)               No Legal Prohibition. No Governmental Authority of competent jurisdiction shall have (i) enacted, issued or promulgated any Law that is in effect and has the effect of making the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger, or (ii) issued or granted any Order (whether temporary, preliminary or permanent) that is in effect and that has the effect of making the Merger illegal or which has the effect of prohibiting or otherwise preventing or enjoining the consummation of the Merger.

Section 8.2             Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction or waiver prior to the Effective Time of each of the following conditions, any of which may be waived in writing exclusively by Parent:

(a)                Representations and Warranties. The representations and warranties of the Company set forth in the first sentence of ‎‎Section 3.1(a) (Organization; Good Standing and Qualification), ‎‎Section 3.2 (Corporate Power; Enforceability), Section 3.4 (Required Governmental Approvals), and Section 3.22 (Brokers), shall be true and correct in all material respects, in each case, on and as of the Closing Date with the same force and effect as if made on and as of such date (except for those representations and warranties that address matters only as of a particular date, which representations and warranties shall have been true and correct in accordance with the applicable standard set forth above as of such particular date). The representations and warranties set forth in ‎Section 3.5 (Company Capitalization) shall be true and correct in all respects as of the Closing Date as if made at and as of the Closing Date, except where the failure to be so true and correct would not increase the Aggregate Consideration payable in the Merger by more than $1,681,356. The other representations and warranties of the Company set forth in ‎ARTICLE III of this Agreement shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date (except for those representations and warranties that address matters only as of a particular date, which representations and warranties shall have been true and correct as of such particular date), except in each case for any failure to be so true and correct which has not had, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that, in the case of such other representations and warranties in ‎‎ARTICLE III, solely for purposes of determining the accuracy of the representations and warranties of the Company set forth in ‎ARTICLE III, all “materiality” or “Company Material Adverse Effect” qualifications set forth in such representations and warranties shall be disregarded (other than the representation set forth in clause (ii) of ‎‎Section 3.9).

(b)               Performance of Obligations of the Company. The Company shall not have materially breached the obligations that are to be performed by it under this Agreement at or prior to the Effective Time.

(c)                Officer’s Certificate of the Company. Parent shall have received a certificate of the Company, validly executed on behalf of the Company by a duly authorized officer thereof, certifying that the conditions set forth in ‎‎Section 8.2(a) and ‎‎Section 8.2(b) have been satisfied.

(d)               Company Material Adverse Effect. There shall not have occurred any Company Material Adverse Effect following the execution and delivery of this Agreement that is continuing.

Section 8.3             Conditions to the Company’s Obligations to Effect the Merger. The obligations of the Company to consummate the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction or waiver prior to the Effective Time of each of the following conditions, any of which may be waived in writing exclusively by the Company:

(a)                Representations and Warranties. The representations and warranties of the Parent and Merger Sub set forth in the first sentence of ‎‎Section 4.1 (Organization; Good Standing and Qualification), ‎‎Section 4.2 (Corporate Power; Enforceability), Section 4.4 (Required Governmental Approvals), Section 4.12(b) (Solvency) and Section 4.14 (Funds) shall be true and correct in all material respects, in each case, on and as of the Closing Date with the same force and effect as if made on and as of such date (except for those representations and warranties that address matters only as of a particular date, which representations and warranties shall have been true and correct in accordance with the applicable standard set forth above as of such particular date). The other representations and warranties of Parent and Merger Sub set forth in ‎‎ARTICLE IV of this Agreement shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date (except for those representations and warranties that address matters only as of a particular date, which representations and warranties shall have been true and correct as of such particular date), except, in each case, for any failure to be so true and correct which has not had, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, in the case of such other representations and warranties in ‎‎ARTICLE IV, solely for purposes of determining the accuracy of the representations and warranties of Parent and Merger Sub set forth in ‎‎ARTICLE IV, all “materiality” or “Parent Material Adverse Effect” qualifications set forth in such representations and warranties shall be disregarded.

(b)               Performance of Obligations of Parent and Merger Sub. Each of Parent and Merger Sub shall not have materially breached the obligations that are to be performed by Parent and Merger Sub under this Agreement at or prior to the Effective Time.

(c)                Officer’s Certificate of Parent and Merger Sub. The Company shall have received certificates of Parent and Merger Sub, respectively, validly executed on behalf of Parent and Merger Sub, respectively, by duly authorized officers thereof, certifying that the conditions set forth in ‎‎Section 8.3(a) and ‎‎Section 8.3(b) have been satisfied.

ARTICLE IX

TERMINATION, AMENDMENT AND WAIVER

Section 9.1             Termination. This Agreement may be validly terminated only as follows (it being understood and hereby agreed that this Agreement may not be terminated for any other reason or on any other basis, whether or not prior to or after the Effective Time):

(a)                at any time prior to the Effective Time (notwithstanding the prior receipt of the Company Shareholder Approval), by mutual written agreement of Parent and the Company; or

(b)               by either the Company or Parent, at any time prior to the Effective Time (notwithstanding the prior receipt of the Company Shareholder Approval), in the event that, following the execution of this Agreement, any Governmental Authority of competent jurisdiction shall have formally issued a permanent, final and non-appealable Order enjoining, restraining or otherwise prohibiting the Merger; provided, however, that that the right to terminate this Agreement pursuant to this ‎Section 9.1(b) shall not be available to any party whose failure to perform fully its obligations under this Agreement has materially contributed to or caused such Order to be issued and such act or failure to act constitutes a breach of this Agreement; or

(c)                by either the Company or Parent, at any time prior to the Effective Time (notwithstanding the prior receipt of the Company Shareholder Approval), in the event that the Effective Time shall not have occurred on or before August 21, 2019 (such date referred to herein as the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this ‎‎Section 9.1(c) shall not be available to any party hereto whose failure to perform fully its obligations under this Agreement has materially contributed to or caused the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement; or

(d)               by either the Company or Parent, at any time prior to the Effective Time, in the event that the Company shall have failed to obtain the Company Shareholder Approval at the Company Shareholders Meeting at which a vote is taken on the Merger; or

(e)                by Parent, at any time prior to the Effective Time (notwithstanding the prior receipt of the Company Shareholder Approval), in the event that (i) Parent and Merger Sub have not breached any of their respective representations, warranties or covenants under this Agreement in any material respect, and (ii) the Company shall have breached any of its representations, warranties or covenants under this Agreement, which breach, if occurring or continuing at the Effective Time, (A) would result in the failure of the conditions set forth in ‎‎Section 8.2(a) or ‎Section 8.2(b) to be satisfied and (B) cannot be cured by the Outside Date or, if curable, is not cured prior to the earlier of (x) the date that is thirty (30) days after written notice thereof is given by Parent to the Company and (y) the second (2nd) Business Day prior to the Outside Date (such period being the “Company Cure Period”) (it being understood that Parent shall not be permitted to terminate this Agreement pursuant to this ‎‎Section 9.1(e) in respect of the breach set forth in any such written notice (1) at any time during the Company Cure Period if the Company is using commercially reasonable efforts to cure such breach, or (2) at any time after the Company Cure Period if the Company shall have cured such breach during the Company Cure Period); or

(f)                by Parent, at any time prior to the receipt of the Company Shareholder Approval, in the event that the Company Board (or a committee thereof) shall have effected a Company Board Recommendation Change; or

(g)                by the Company, at any time prior to the receipt of the Company Shareholder Approval, if (i) the Company Board has received a Superior Proposal and (ii) to the extent permitted by and effected in accordance with this Agreement, including ‎Section 5.2(c) or ‎Section 5.3(b) hereof, the Company Board approves, and the Company, concurrently with the termination of this Agreement, enters into, an Alternative Transaction Agreement with respect to such Superior Proposal and pays to Parent the Company Termination Fee in accordance with ‎Section 9.3 prior to or simultaneously with such termination; or

(h)               by the Company, at any time prior to the Effective Time (notwithstanding the prior receipt of the Company Shareholder Approval), in the event that (i) the Company has not breached any of its representations, warranties or covenants under this Agreement in any material respect and (ii) Parent or Merger Sub shall have breached any of its representations, warranties or covenants under this Agreement, which breach, if occurring or continuing at the Effective Time, (A) would result in the failure of the conditions set forth in ‎‎Section 8.3(a) or ‎Section 8.3(b) to be satisfied and (B) cannot be cured by the Outside Date or, if curable, is not cured prior to the earlier of (x) the date that is thirty (30) days after written notice thereof is given by the Company to Parent and (y) the second (2nd) Business Day prior to the Outside Date (such period being the “Parent Cure Period”) (it being understood that the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(h) in respect of the breach set forth in any such written notice (1) at any time during the Parent Cure Period if Parent is using commercially reasonable efforts to cure such breach, or (2) at any time after the Parent Cure Period if Parent and Merger Sub shall have cured such breach during the Parent Cure Period); or

(i)                 by the Company, in the event that (i) all of the conditions set forth in ‎Section 8.1 and ‎Section 8.2 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing), (ii) Parent and Merger Sub have failed to consummate the Merger on the latest date the Closing would have occurred pursuant to ‎Section 2.2, (iii) the Company has irrevocably notified Parent in writing that (A) the Company is ready, willing and able to consummate the Merger, and (B) all conditions set forth in ‎Section 8.3 have been and continue to be satisfied (other than those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing) or that it is willing to waive any unsatisfied conditions, (iv) the Company has given Parent written notice at least three (3) Business Days prior to such termination stating the Company’s intention to terminate this Agreement pursuant to this ‎Section 9.1(i) if Parent and Merger Sub fail to consummate the Merger, and (v) Parent and Merger Sub fail to consummate the Merger on the later of the expiration of such three (3) Business Day period and the date set forth in the foregoing notice; or

(j)                 by Parent, if the Company shall have willfully and materially breached any of its obligations under ‎Section 5.2 or ‎Section 5.3.

Section 9.2             Notice of Termination; Effect of Termination. Any proper and valid termination of this Agreement pursuant to ‎‎Section 9.1 shall be effective immediately upon the delivery of written notice of the terminating party to the other party or parties hereto, as applicable. In the event of the termination of this Agreement pursuant to ‎‎Section 9.1, this Agreement shall be of no further force or effect without any liability, of any kind, of any party or parties hereto, as applicable (or any director, officer, employee, equityholder, Affiliate, agent or other representative of such party or parties) to the other party or parties hereto, as applicable, except that (a) each of the terms of ‎‎Section 7.8, this ‎Section 9.2, ‎Section 9.3 and ‎‎ARTICLE X shall survive the termination of this Agreement and (b) nothing in this Agreement shall (i) relieve any party or parties hereto, as applicable, from liability for any actual fraud or (ii) relieve Parent or Merger Sub from liability for (A) a willful and material breach of their obligations to consummate the Closing solely in the case the Debt Financing (or, if Alternative Financing is being used in accordance with Section 7.10(b), pursuant to the commitments with respect thereto) has been funded in accordance with the terms thereof or will be funded in accordance with the terms thereof at the Closing or (B) a willful and material breach of any of their obligations under Section 7.10 if such breach results in the failure of the Debt Financing to be funded (each of (A) and (B), a "Specified Breach") (which liabilities the parties acknowledge and agree shall not be limited to reimbursement of expenses or out-of-pocket costs, and may include to the extent proven the benefit of the bargain lost by a party’s stockholders (taking into consideration relevant matters, including other combination opportunities and the time value of money), which shall be deemed in such event to be liabilities of such party); provided that Parent or Merger Sub shall be permitted in its sole discretion to settle any such liability by consummating the Closing in accordance with the terms of this Agreement; provided, further, that in no event shall the aggregate liability (whether relating to any damages, losses or other liabilities directly or indirectly incurred, suffered or payable by any Person) of Parent, Merger Sub or any of the other Parent Parties (including Ultimate Parent) to any Person in the event of a Specified Breach exceed the Aggregate Consideration (the "Parent Liability Limitation"). For purposes of this Agreement, "willful and material breach" shall mean a deliberate and knowing act or a deliberate and knowing failure to act, which act or failure to act constitutes in and of itself a material breach of any covenant contained in this Agreement, regardless of whether breaching was the conscious object of the act or failure to act. In addition to the foregoing, no termination of this Agreement shall affect the obligations of the parties hereto set forth in the Confidentiality Agreement, all of which obligations shall survive termination of this Agreement in accordance with their terms.

Section 9.3             Fees and Expenses.

(a)                General. Except as set forth in this ‎‎Section 9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party or parties, as applicable, incurring such expenses whether or not the Merger is consummated.

(b)               Company Payments. The Company shall pay to Parent nineteen million, six hundred fifteen thousand, eight hundred and twenty-eight U.S. dollars ($19,615,828) (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, in the event that:

(i)                 (A) after the date of this Agreement and at or prior to the date of the Company Shareholders Meeting an Acquisition Proposal shall have been publicly announced and shall not have been publicly withdrawn or otherwise abandoned, (B) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(d) and (C) within twelve (12) months following such termination of this Agreement the Company enters into a definitive agreement to effect any Acquisition Proposal, which is subsequently consummated (regardless of whether such consummation occurs within such twelve (12) month period) (provided, that references to “twenty-five percent (25%)” in the definition of Acquisition Proposal shall be deemed to be references to “fifty-one percent (51%)”);

(ii)               this Agreement is terminated by the Company pursuant to ‎‎Section 9.1(g); or

(iii)             this Agreement is terminated by Parent pursuant to ‎‎Section 9.1(f); or

(iv)             this Agreement is terminated by Parent pursuant to ‎Section 9.1(j).

(c)                Manner of Payment. Payment of the Company Termination Fee shall be made by wire transfer of immediately available funds to the account designated by Parent (i) two (2) Business Days following the consummation of any transaction contemplated by an Acquisition Proposal, in the case of a Company Termination Fee payable pursuant to ‎Section 9.3(b)(i), less the amount of any Parent Expenses previously paid to Parent pursuant to ‎Section 9.3(d), (ii) concurrently with the Company’s termination of this Agreement in accordance with ‎Section 9.1(g) in the case of a Company Termination Fee payable pursuant to ‎Section 9.3(b)(ii) or ‎(iii) as promptly as reasonably practicable after termination (and, in any event, within two (2) Business Days thereof), in the case of a Company Termination Fee payable pursuant to ‎‎Section 9.3(b)(iii) or Section 9.3(b)(iv).

(d)               Parent Expenses. In the event this Agreement is terminated pursuant to Section 9.1(d) or Section 9.1(e) under circumstances in which the Company Termination Fee is not then payable pursuant to ‎Section 9.3(b), and as of the time of such termination by Parent, Parent and Merger Sub were not in material breach of their representations, warranties, covenants or agreements under this Agreement, then within five (5) Business Days after written demand by Parent, the Company shall pay to Parent up to $1,500,000 of Parent’s reasonable and documented out-of-pocket fees and expenses (including legal fees and expenses) incurred by Parent and its Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated hereby (including the Debt Financing) (the “Parent Expenses”) by wire transfer of immediately available funds to an account or accounts designated in writing by Parent; provided, that the existence of circumstances which could require the Company Termination Fee to become subsequently payable by the Company pursuant to ‎Section 9.3(b) shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this ‎Section 9.3(d); provided, further, that the payment by the Company of Parent Expenses pursuant to this ‎Section 9.3(d) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee pursuant to ‎Section 9.3(b) except to the extent indicated in ‎Section 9.3(b).

(e)                Parent Termination Fee. If, but only if, this Agreement is terminated by the Company pursuant to ‎Section 9.1(h) (but only if the failure to satisfy the conditions specified therein results from a willful and material breach by Parent or Merger Sub of any of their respective representations, warranties covenants or agreements contained herein) or ‎Section 9.1(i), or is terminated pursuant to ‎Section 9.1(c) at a time when the Company would have been entitled to terminate this Agreement pursuant to ‎Section 9.1(h) (but only if the failure to satisfy the conditions specified therein results from a willful and material breach by Parent or Merger Sub of any of their respective representations, warranties covenants or agreements contained herein) or Section 9.1(i), then Parent shall pay to the Company forty million, nine hundred thirteen thousand and thirteen U.S. dollars ($40,913,013) (the “Parent Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by the Company within five (5) Business Days following such termination.

(f)                Single Payment Only. The parties hereto acknowledge and hereby agree that (i) in no event shall the Company be required to pay the Company Termination Fee and/or Parent Expenses on more than one occasion, whether or not the Company Termination Fee and/or Parent Expenses may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events, (ii) in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion, whether or not the Parent Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events, and (iii) notwithstanding that the Company has the right to seek both specific performance of Parent’s obligation to consummate the Closing, on the one hand, and the Parent Termination Fee or damages in respect of Specified Breaches, on the other hand, simultaneously, (x) it may only obtain either specific performance of Parent’s obligation to consummate the Closing, on the one hand, or the Parent Termination Fee or damages in respect of Specified Breaches, on the other hand, and (y) it may only obtain either the Parent Termination Fee, on the one hand, or damages in respect of Specified Breaches, on the other hand.

(g)                Effect of Company Termination Fee and Parent Termination Fee. Notwithstanding anything to the contrary in this Agreement, if Parent is entitled to receive a Company Termination Fee pursuant to ‎Section 9.3(b) and/or Parent Expenses pursuant to ‎Section 9.3(d), Parent’s right to receive payment of the Company Termination Fee and/or Parent Expenses shall be the sole and exclusive remedy of Parent and its Affiliates and Representatives against the Company and its Affiliates and Representatives under this Agreement or arising out of or related to this Agreement or the transactions contemplated hereby, and upon payment of such amount(s), none of the Company or any of its Affiliates or Representatives shall have any liability or obligation of any kind or nature relating to or arising out of this Agreement or the transactions contemplated hereby, in each case whether based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Laws or otherwise. Notwithstanding anything to the contrary in this Agreement, if the Company is entitled to receive a Parent Termination Fee pursuant to ‎Section 9.3(e), the Company’s right to receive payment of the Parent Termination Fee and any amounts payable pursuant to Section 9.3(i) shall be the sole and exclusive remedy of the Company and its Affiliates and Representatives against Parent and its Affiliates and Representatives under this Agreement or arising out of or related to this Agreement or the transactions contemplated hereby, and upon payment of such amounts, none of Parent or any of its Affiliates or Representatives shall have any liability or obligation of any kind or nature relating to or arising out of this Agreement or the transactions contemplated hereby, in each case whether based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Laws or otherwise; provided that nothing in this Section 9.3(g) shall limit Parent’s reimbursement and indemnification obligations under Section 7.10(d), or, subject to the Parent Liability Limitation, Parent’s liability in respect of Specified Breaches (but, for the avoidance of doubt, in no event shall Parent be obligated to pay both (x) the Parent Termination Fee and (y) damages in respect of Specified Breaches).

(h)               Acknowledgment. The parties acknowledge that (i) the agreements contained in this ‎Section 9.3 are an integral part of the transactions contemplated in this Agreement, (ii) the damages resulting from termination of this Agreement under circumstances where a Company Termination Fee or Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to ‎Section 9.3(b) or ‎Section 9.3(e) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Parent or the Company, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and (iii) without the agreements contained in this ‎Section 9.3, the parties would not have entered into this Agreement.

(i)                 Enforcement Costs.

(i)                 If Parent fails to pay the Parent Termination Fee when due pursuant to Section 9.3(e), it shall also pay any reasonable out-of-pocket fees, costs and expenses incurred by the Company in connection with enforcing payment of the Parent Termination Fee (including by legal action), together with interest on such unpaid amount, at a rate per annum, compounded monthly, equal to the rate of interest published in The Wall Street Journal as of the prime lending rate plus two percent (2.0%) per annum from the date such amount was required to be paid to (but excluding) the payment date.

(ii)               If the Company fails to pay the Company Termination Fee when due pursuant to Section 9.3(b) or Parent Expenses when due pursuant to Section 9.3(d), it shall also pay any reasonable out-of-pocket fees, costs and expenses incurred by Parent in connection with enforcing payment of the Company Termination Fee or Parent Expenses (including by legal action), together with interest on such unpaid amount, at a rate per annum, compounded monthly, equal to the rate of interest published in The Wall Street Journal as of the prime lending rate plus two percent (2.0%) per annum from the date such amount was required to be paid to (but excluding) the payment date.

Section 9.4             Amendment. Subject to applicable Law and subject to the other provisions of this Agreement, this Agreement may be amended by the parties hereto at any time by execution of an instrument in writing signed on behalf of each of Parent, Merger Sub and the Company; provided, however, that in the event that the Company has received the Company Shareholder Approval, no amendment shall be made to this Agreement that requires the approval of the Company Shareholders under applicable Law without obtaining the Company Shareholder Approval of such amendment. Notwithstanding anything in this Agreement to the contrary, this ‎Section 9.4, Section 10.3(i), Section 10.5(b), ‎Section 10.7, the penultimate sentence of ‎Section 10.8, ‎Section 10.9(a) and Section 10.9(b) (or any provision of this Agreement to the extent an amendment, modification, waiver or termination of such provision would modify the substance of any of the foregoing provisions in a manner that would be adverse to the Financing Sources) may not be modified, waived, terminated or amended in a manner that adversely impacts the interests of any Financing Source without the prior written consent of such Financing Source (and any such amendment, modification, waiver or termination without such prior written consent shall be null and void).

Section 9.5             Extension; Waiver. At any time and from time to time prior to the Effective Time, any party or parties hereto may, to the extent legally allowed and except as otherwise set forth herein, (a) extend the time for the performance of any of the obligations or other acts of the other party or parties hereto, as applicable, (b) waive any inaccuracies in the representations and warranties made to such party or parties hereto contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions for the benefit of such party or parties hereto contained herein. Any agreement on the part of a party or parties hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party or parties, as applicable. Any delay in exercising any right under this Agreement shall not constitute a waiver of such right.

ARTICLE X

GENERAL PROVISIONS

Section 10.1         Survival of Representations, Warranties and Covenants. The representations and warranties of the Company, Parent and Merger Sub contained in this Agreement shall terminate at the Effective Time, and only the covenants that by their terms survive the Effective Time shall so survive the Effective Time in accordance with their respective terms.

Section 10.2         Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly delivered and received hereunder (i) seven (7) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) two (2) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable international overnight courier service, or (iii) immediately upon delivery by email, by hand or by facsimile (with a written or electronic confirmation of receipt), in each case to the intended recipient as set forth below:

(a)           if to Parent or Merger Sub to:

	c/o Qlik Technologies, Inc.
	Address:   Attention:   Email:	▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ King of Prussia, Pennsylvania 19406 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President, General Counsel & Secretary ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇

with a copy (which shall not constitute notice) to:

	▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
	Address: Attention:   Facsimile: Email:	▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C, ▇▇▇▇▇ ▇. ▇▇▇, P.C., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇

and

	Meitar Liquornik ▇▇▇▇ ▇▇▇▇▇▇ Tal
	Address: Attention:   Facsimile: Email:	▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, Israel Ariel Aminetzah, Adv. ▇▇▇▇-▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

 

(b)          if to the Company, to:

	Attunity Ltd.
	Address: Attention:   Facsimile: Email:	16 Atir Yeda Street, Atir ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Chief Financial Officer and Secretary ▇▇▇▇-▇-▇▇▇▇▇▇▇ ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇

with a copy (which shall not constitute notice) to:

	▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co.
	Address: Attention:   Facsimile: Email:	Ampa Tower, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Adv. ▇▇▇▇-▇-▇▇▇-▇▇▇▇ ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇

and

	▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
	Address: Attention:   Facsimile:   Email:	▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇-▇▇▇-▇▇▇▇ ▇▇-▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇

Section 10.3         Assignment. No party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other parties; provided that, without the consent of the Company or any other party, (i) each of Parent and Merger Sub may assign its rights hereunder solely for collateral security purposes to any Financing Source or any other lender providing financing to Parent or Merger Sub, (ii) each of Parent and Merger Sub may assign any or all of its rights, interests and obligations under this Agreement to any one or more direct or indirect wholly-owned Subsidiaries or Affiliates, and (iii) after the Effective Time, Parent may transfer or assign its rights and obligations under this Agreement to any Person, provided that in each case of clauses (i) and (ii), no such transfer or assignment shall relieve Parent or Merger Sub of its obligations under this Agreement. Subject to the preceding sentence, this Agreement shall (i) be binding upon the parties hereto and their respective successors and permitted assigns and (ii) shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Section 10.4         Entire Agreement. This Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to herein, including the Company Disclosure Letter and the Exhibits and Annexes hereto, constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof; provided, however, the Confidentiality Agreement shall not be superseded, shall survive any termination of this Agreement and shall continue in full force and effect until the earlier to occur of (a) the Effective Time and (b) the date on which the Confidentiality Agreement expires in accordance with its terms or is validly terminated by the parties thereto.

Section 10.5         Third Party Beneficiaries. This Agreement is not intended to, and shall not, confer upon any other Person any rights or remedies hereunder, except (a) as set forth in or contemplated by the terms and provisions of ‎‎Section 6.1, ‎Section 9.3(g) and Section 10.7, and (b) the Financing Sources shall be intended third-party beneficiaries of, and may enforce, ‎Section 9.4, Section 10.3(i), this Section 10.5(b), ‎Section 10.7, and the penultimate sentence of ‎Section 10.8, ‎Section 10.9(a) and Section 10.9(b).

Section 10.6         Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

Section 10.7         Remedies.

(a)           Remedies of Parent and Merger Sub.

(i)                 Specific Performance. Prior to the valid termination of this Agreement pursuant to ‎Section 9.1, Parent and Merger Sub shall be entitled to seek and obtain an injunction, specific performance and other equitable relief to prevent breaches of this Agreement by the Company in the courts described in ‎Section 10.9 and to enforce specifically the terms and provisions hereof, including the Company’s obligation to consummate the Merger.

(i)                 Company Termination Fee. Parent shall be entitled to payment of the Company Termination Fee if and when payable pursuant to ‎Section 9.3(b).

(ii)               Parent Expense Reimbursement. Parent shall be entitled to reimbursement of Parent Expenses if and when payable pursuant to ‎Section 9.3(d).

(iii)             Termination. Parent and Merger Sub shall be entitled to terminate this Agreement in accordance with ‎Section 9.1.

(iv)             Monetary Damages. Other than in the case of actual fraud, in no event shall (A) Parent or Merger Sub or (B) the former, current and future holders of any equity, controlling persons, Representatives, Affiliates (other than Parent or Merger Sub), members, managers, general or limited partners, stockholders and assignees of each of Parent, Merger Sub and their respective Affiliates (the foregoing in clauses (A) and (B) collectively, the “Parent Parties”) have the right to seek or obtain money damages from any Company Party under this Agreement (whether at law or in equity, in contract, in tort or otherwise) other than the right of Parent and Merger Sub to payment of the Company Termination Fee as set forth in ‎Section 9.3(b) and Parent Expenses as set forth in ‎Section 9.3(d) and any amounts payable pursuant to Section 9.3(i).

(b)           Remedies of the Company.

(i)                 Specific Performance (Pre-Closing Covenants). Prior to the valid termination of this Agreement pursuant to ‎Section 9.1 and other than as it relates to the right to cause the Merger to be consummated (which is governed by the provisions of Section 10.7(b)(ii)), the Company shall be entitled to seek and obtain an injunction, specific performance and other equitable relief to prevent breaches of this Agreement by Ultimate Parent, Parent and Merger Sub in the courts described in ‎Section 10.9 and to enforce specifically the terms and provisions hereof.

(ii)               Specific Performance (Closing). Prior to a valid termination of this Agreement pursuant to ‎Section 9.1, the Company shall be entitled to seek and obtain an injunction, specific performance and other equitable relief to enforce Parent’s and Merger Sub’s obligations to consummate the Merger and the other transactions contemplated hereby, only in the event that each of the following conditions has been satisfied: (i) the conditions set forth in ‎Section 8.1 and ‎Section 8.2 (other than those conditions that by their terms are to be satisfied at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time the Closing would have occurred and remain satisfied, (ii) the Debt Financing (or, if Alternative Financing is being used in accordance with Section 7.10(b), pursuant to the commitments with respect thereto) has been funded in accordance with the terms thereof or will be funded in accordance with the terms thereof at the Closing and (iii) the Company has irrevocably confirmed in writing to Parent that if specific performance is granted and the Debt Financing is funded, then the Closing will occur. For the avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically Parent’s obligation to consummate the Merger if the Debt Financing has not been funded (and will not be funded at the Closing). In no event shall the Company be entitled to seek the remedy of specific performance to cause the consummation of the Merger other than solely under the specific circumstances and as specifically set forth in this Section 10.7(b)(ii). For the avoidance of doubt, in no event shall the Company (as opposed to Parent) be entitled to seek any remedy of specific performance or other equitable remedies against any Financing Source in connection with the transactions contemplated hereby or the Debt Financing. The election of the Company to pursue an injunction, specific performance or other equitable relief shall not restrict, impair or otherwise limit the Company from seeking to terminate this Agreement and seeking to collect the Parent Termination Fee pursuant to ‎Section 9.3(e) or damages for liability of Parent or Merger Sub in the case of fraud or a Specified Breach as provided in ‎Section 9.2; provided that in no event shall the Company be entitled to receive both an injunction, specific performance or other equity relief to cause Parent to consummate the Merger and collect the Parent Termination Fee or any damages.

(iii)             Parent Termination Fee. The Company shall be entitled to payment of the Parent Termination Fee if and when payable pursuant to ‎Section 9.3(e).

(iv)             Termination. The Company shall be entitled to terminate this Agreement in accordance with ‎Section 9.1.

(v)               Monetary Damages. Other than in the case of actual fraud, in no event shall (A) the Company, its Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, Representatives, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Parties”) have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from any Parent Party other than the right of the Company to payment of the Parent Termination Fee as set forth in ‎Section 9.3(e) and any amounts payable pursuant to Section 9.3(i), the right of the Company to recover any amounts pursuant to ‎Section 7.10(d) and, subject to the Parent Liability Limitation, damages in the event of a Specified Breach. In addition, notwithstanding anything in this Agreement to the contrary, the Company and each other Company Party hereby waives any claims against the Financing Sources and hereby agrees that in no event shall the Financing Sources have any liability, whether at law or in equity, in contract, in tort or otherwise, or obligation to the Company or any other Company Party relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter or the transactions contemplated hereby and thereby, the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Laws arising out of any such breach, termination or failure; provided that, notwithstanding the foregoing, nothing in this Section 10.7(b)(v) shall in any way limit or modify the rights and obligations of Parent, Merger Sub or the Financing Sources under the Debt Commitment Letter. In addition to the rights of Parent and Merger Sub hereunder, Parent and Merger Sub shall be entitled, at Parent and Merger Sub’s sole election, to settle any claims for the Parent Termination Fee or damages in respect of Specified Breaches by agreeing to consummate the Merger in accordance with the terms of this Agreement. For the avoidance of doubt, no Financing Source shall be subject to any special, consequential, or punitive damages or damages of a tortious nature. The Financing Sources are intended third party beneficiaries of this Section 10.7.

(c)                Acknowledgement Regarding Available Remedies. Solely to the extent that the right of specific performance is explicitly applicable under the terms of this Section 10.7, the parties agree that irreparable damage for which monetary damages, even if applicable, would not be an adequate remedy would occur in the event that the parties do not perform their obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. Solely to the extent that the right of specific performance is explicitly applicable under the terms of this Section 10.7, the parties acknowledge and agree that the parties shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in ‎Section 10.9 without proof of damages or otherwise, and that such explicit rights of specific enforcement are an integral part of the transactions contemplated by this Agreement and without such rights, none of the Company, Parent or Merger Sub would have entered into this Agreement. Each party agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief expressly applicable under this Section 10.7 on the basis that (i) it has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or in equity. Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement will not be required to provide any bond or other security in connection with such injunction or enforcement, and each party irrevocably waives any right that it may have to require the obtaining, furnishing or posting of any such bond or other security. While the Company and Parent may pursue both a grant of specific performance to cause the other party to consummate the Merger and payment of the Company Termination Fee, Parent Expenses or Parent Termination Fee, as applicable, in accordance with this Section 10.7, in no event shall the Company or Parent be permitted or entitled to receive both a grant of specific performance to cause the other party to consummate the Merger and payment of the Company Termination Fee, Parent Expenses or Parent Termination Fee, as applicable.

(d)               Sole Remedy. The parties acknowledge and agree that the remedies provided for in this Section 10.7 shall be the parties’ sole and exclusive remedies for any breaches of this Agreement or any claims relating to the transactions contemplated hereby. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action, known or unknown, foreseen or unforeseen, which exist or may arise in the future, that such party may have against the other party, the Parent Parties or the Company Parties, as the case may be, arising under or based upon any Law for any breach of the representations and warranties or covenants contained in this Agreement; provided that nothing in this Section 10.7 shall relieve any party from any liability for actual fraud.

Section 10.8         Governing Law. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, the negotiation, execution, existence, validity, enforceability or performance of this Agreement, or for the breach or alleged breach hereof (whether in contract, in tort or otherwise) shall be governed by and construed and enforced in accordance with the Laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or otherwise) that would cause the application of the Laws of any other jurisdiction, except that (i) the internal affairs of the corporations party hereto that are organized and existing under the ICL and (ii) all other provisions of, or transactions contemplated by, this Agreement that are expressly or otherwise required to be governed by the ICL, shall be governed by the ICL. Notwithstanding the foregoing, each party hereto agrees that any Legal Proceeding of any kind or description, whether in law or in equity, in contract, tort or otherwise, against the Financing Sources or any Financing Source in any way relating to this Agreement or any of the transactions contemplated hereby, including any dispute raising out of or relating in any way to the Debt Commitment Letter, shall be governed by, construed in accordance with and enforced under the Laws of the State of New York, without giving effect to any conflict of laws provisions thereof that would cause the application of the Laws of another jurisdiction. The Financing Sources are intended third party beneficiaries of this Section 10.8.

Section 10.9         Consent to Jurisdiction; Waiver of Jury Trial. (a) Each of the parties hereto (i) agrees that any actions or proceedings arising in connection with any dispute, controversy or claim arising under, relating to or in connection with this Agreement or the transactions contemplated hereby (including any dispute or controversy regarding the existence, validity, enforceability or breach of this Agreement), whether in contract, in tort or otherwise, shall be brought, tried and determined only in the United States District Court for the Southern District of New York or any New York State court sitting in New York City; (ii) irrevocably and unconditionally consents and submits itself and its properties and assets to the jurisdiction of the United States District Court for the Southern District of New York or any New York State court sitting in New York City; (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (iv) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (v) agrees that it will not bring any action relating to this Agreement or the transactions contemplated hereby in any court other than the aforesaid courts. Each of Parent, Merger Sub and the Company agrees that a final judgment in any action or proceeding in such courts as provided above shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law. Notwithstanding anything herein to the contrary, but subject to Section 10.7(b)(v), each of the parties hereto agrees (i) that any Legal Proceeding of any kind or nature, whether at law or in equity, in contract, tort or otherwise, against a Financing Source in connection with this Agreement, the Debt Financing or the transactions contemplated hereby, shall be subject to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan, New York, New York and any appellate court thereof and each party hereto submits for itself and its property with respect to any such Legal Proceeding to the exclusive jurisdiction of such courts, (ii) not to bring or permit any of its Affiliates or Representatives to bring or support anyone else in bringing any such Legal Proceeding in any other courts, (iii) that a final judgment in any such Legal Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law, and (iv) to waive and hereby irrevocably waives, to the fullest extent permitted by Law, any objection which it may now or hereafter have to the laying of venue of, and the defense of an inconvenient forum to the maintenance of, any such Legal Proceeding in any such court. Each of the parties hereto irrevocably consents to the service of the summons and complaint and any other process in any action or proceeding relating to the transactions contemplated by this Agreement, for and on behalf of itself or any of its properties or assets, in accordance with ‎‎Section 10.2 or in such other manner as may be permitted by applicable Law, and nothing in this ‎‎Section 10.9 shall affect the right of any party to serve legal process in any other manner permitted by applicable Law.

(b)               WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY LITIGATION AGAINST ANY FINANCING SOURCE ARISING OUT OF THIS AGREEMENT OR THE DEBT COMMITMENT LETTER. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED AND UNDERSTANDS THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.9(C).

Section 10.10     Company Disclosure Letter References. The parties hereto agree that the disclosure set forth in any particular section or subsection of the Company Disclosure Letter shall be deemed to be an exception to (or, as applicable, a disclosure for purposes of) (i) the representations and warranties (or covenants, as applicable) of the Company that are set forth in the corresponding section or subsection of this Agreement, and (ii) any other representations and warranties (or covenants, as applicable) of the Company that are set forth in this Agreement, but in the case of this clause (ii) only if the relevance of that disclosure as an exception to (or a disclosure for purposes of) such other representations and warranties (or covenants, as applicable) is readily apparent on the face of such disclosure.

Section 10.11     Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery (including, without limitation, in pdf or other scan format) shall be sufficient to bind the parties to the terms and conditions of this Agreement.

Section 10.12     Guarantee.

(a)           Ultimate Parent and Qlik Technologies (each, a “Guarantor”, and collectively, the “Guarantors”) hereby absolutely, unconditionally and irrevocably guarantee the payment and the prompt and full discharge and performance, in accordance with the terms of this Agreement, of all covenants, obligations, liabilities and indemnities of Parent or Merger Sub under this Agreement (including the obligations set forth in Section 7.10) owed at or prior to the Closing (the “Guaranteed Obligations”).  The Company need not attempt to collect any Guaranteed Obligation hereunder from Parent or Merger Sub or otherwise pursue any remedies against Parent or Merger Sub prior to enforcing its right against the Guarantors. 

(b)          To the fullest extent permitted under applicable Law, each Guarantor hereby irrevocably waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Company upon this Agreement or acceptance of this Agreement. All of the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Section 10.12, and all dealings between the Guarantors, Parent or Merger Sub, on the one hand, and the Company, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Section 10.12. This Section 10.12 is a primary obligation of the Guarantors and is not merely the creation of a surety relationship. When pursuing its rights and remedies hereunder against the Guarantors, the Company shall be under no obligation to pursue such rights and remedies it may have against Parent or Merger Sub or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Company to pursue such other rights or remedies or to collect any payments from Parent or Merger Sub or any such other Person or to realize upon or to exercise any such right of offset shall not relieve the Guarantors of any liability hereunder.

(c)          The Company shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Company to so file such claim shall not affect any Guarantor’s obligations hereunder (and notwithstanding anything herein to the contrary, any bar to the payment, or collection, of any Guaranteed Obligations as a result of any such proceeding shall not discharge the obligations of the Guarantors hereunder). Notwithstanding anything to the contrary contained in this Agreement, in the event that any payment to the Company in respect of any Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, this Section 10.12 shall continue to be effective or be reinstated pursuant to the terms hereof, as the case may be, and the Guarantors shall remain liable hereunder with respect to the Guaranteed Obligations as if such payment had not been made.

(d)          If any Guarantor fails to fully pay any Guaranteed Obligation when due, it shall also pay any reasonable out-of-pocket fees, costs and expenses incurred by the Company in connection with enforcing this Section 10.12 (including by legal action), together with interest on such unpaid amount, at a rate per annum, compounded monthly, equal to the rate of interest published in The Wall Street Journal as of the prime lending rate plus two percent (2%) per annum from the date such amount was required to be paid to (but excluding) the payment date.

(e)          Each Guarantor expressly and irrevocably waives any and all rights and defenses arising under any applicable Law that would otherwise require any election of remedies by the Company, promptness, diligence, notice of the acceptance of the guaranty set forth in this Section 10.12 and of any Guaranteed Obligations, presentment, demand and protest, any defenses that might be available under any valuation, stay, moratorium or similar applicable Law, any defenses arising from the bankruptcy or insolvency of Parent or Merger Sub, any defenses which Parent or Merger Sub may not assert as defenses to payment of any Guaranteed Obligation in accordance with the terms and conditions of this Agreement, any notice of any kind not provided for herein or not required to be provided to Parent or Merger Sub under or in connection with this Agreement, any right to require the marshalling of assets of Parent, Merger Sub or any other Person interested in the transactions contemplated by this Agreement, any other defenses not expressly preserved hereby, and all suretyship defenses generally. Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and that the waivers set forth in this Section 10.12 are knowingly made in contemplation of such benefits.   For the avoidance of doubt, each Guarantor shall have and be permitted to assert any and all defenses available to Parent or Merger Sub with respect to payment or performance under this Agreement, whether at Law or in equity.

(f)           No Guarantor will exercise any rights of subrogation or contribution against Parent or Merger Sub or any other Person, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency laws) or otherwise. To the fullest extent permitted by applicable Law, each Guarantor hereby expressly and unconditionally waives any rights that it may now have or hereafter acquire against Parent or Merger Sub or any other Person that arise from the existence, payment, performance, or enforcement of its obligations under or in respect of this Section 10.12 or any other agreement in connection therewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Company against Parent or Merger Sub or any other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from Parent or Merger Sub or any other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations shall have been paid in full. If any amount shall be paid to a Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations, such amount shall be received and held in trust for the benefit of the Company, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of this Agreement, whether matured or unmatured, or to be held as collateral for the Guaranteed Obligations.

(g)         Except as otherwise provided herein and without amending or limiting the other provisions of this Agreement, the liability of each Guarantor under this Agreement shall, to the fullest extent permitted under applicable Law, be absolute and unconditional irrespective of:

(i)                 the value, genuineness, regularity, illegality or enforceability of this Agreement, any financing commitment letters (equity, debt or otherwise) or any other agreement or instrument referred to herein;

(ii)               any change in the corporate existence, structure or ownership of Parent or Merger Sub or any Guarantor or any other Person, or any insolvency, bankruptcy, reorganization, moratorium or other similar proceeding affecting Parent or Merger Sub or any Guarantor or any other Person or any of their respective assets;

(iii)             any waiver, amendment or modification of this Agreement or any financing commitment letters or any other agreement evidencing, securing or otherwise executed in connection with any of the Guaranteed Obligations, in each case, in accordance with its terms, or change in the time, manner, place or terms of payment or performance, or any change or extension of the time of payment or performance of, rescission, waiver, compromise, consolidation, renewal or alteration of, any Guaranteed Obligation, any escrow arrangement or other security therefor, any liability incurred directly or indirectly in respect thereof, or any agreement entered into by the Company or any of its Affiliates, on the one hand, and Parent and/or Merger Sub or any of their Affiliates, on the other hand, in connection therewith;

(iv)             the existence of any claim, set off or other right that any Guarantor may have at any time against Parent, Merger Sub, the Company, or any of their Affiliates, whether in connection with any Guaranteed Obligations or otherwise;

(v)               the addition, substitution or release of any Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the transactions contemplated by this Agreement, any financing commitment letters or any related agreement or document;

(vi)             the adequacy of any other means the Company may have of obtaining repayment of any of the Guaranteed Obligations; and

(vii)           any other defense that might operate as a legal or equitable discharge of a guarantor or surety.

(h)          Each Guarantor (i) is a legal entity duly organized, validly existing and (to the extent such concept is applicable) in good standing under the Laws of its jurisdiction of organization and (ii) has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted. Each Guarantor has all requisite corporate power and authority to execute and deliver this Agreement, to perform its covenants and obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by each Guarantor of this Agreement, the performance by each Guarantor of its covenants and obligations hereunder and the consummation by each Guarantor of the transactions contemplated hereby have been duly authorized by all necessary corporate or other action on the part of each Guarantor, and no other corporate or other proceeding on the part of such Guarantor is necessary to authorize the execution and delivery by such Guarantor of this Agreement, the performance by such Guarantor of its covenants and obligations hereunder or the consummation by such Guarantor of the transactions contemplated hereby. This Agreement has been duly executed and delivered by each Guarantor and, assuming the due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of such Guarantor, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception. No vote of the holders of any of the issued and outstanding shares of capital stock of any Guarantor is necessary to approve and adopt this Agreement and the transactions contemplated by this Agreement. The execution and delivery by each Guarantor of this Agreement do not, and the performance by such Guarantor of its obligations hereunder will not, (a) violate or conflict with any provision of the articles of incorporation or bylaws or other organizational documents of such Guarantor, (b) result in a violation or breach of any provision of, or constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation, payment, acceleration or revocation under, any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which such Guarantor is a party or by which such Guarantor or any of its assets or properties may be bound, (c) assuming the Approvals referred to in Section 3.4 are obtained or made, violate or conflict with any Law or Order applicable to such Guarantor or by which any of its assets or properties are bound or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of such Guarantor, except in the case of each of clauses (b), (c) and (d) above, for such violations, conflicts, defaults, terminations, accelerations or Liens which would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. No Approval of any Governmental Authority is required on the part of any Guarantor or any of its Affiliates in connection with the execution and delivery by such Guarantor of this Agreement, the performance by such Guarantor of its covenants and obligations hereunder and the consummation by such Guarantor of the transactions contemplated hereby, other than those set forth in Section 4.4. Ultimate Parent directly owns all of the issued and outstanding capital stock of Qlik Technologies, and Ultimate Parent owns no other assets or properties other than such capital stock. Ultimate Parent has no liabilities of any nature (whether accrued, absolute, contingent or otherwise) other than liabilities that are incidental to Ultimate Parent’s ownership of the outstanding capital stock of Qlik Technologies and pursuant to the Credit Agreement.

(i)           Except for the express written representations and warranties made by each Guarantor in Section 10.12(h), each Guarantor does not make any express or implied representation or warranty with respect to itself, any of its Affiliates or any of their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects in connection with this Agreement or the transactions contemplated by this Agreement. Each Guarantor expressly disclaims any such other representations or warranties, and the Company acknowledges and agrees that none of the Company or its Affiliates or Representatives has relied on or are relying on any representations or warranties regarding such Guarantor, other than the express written representations and warranties expressly set forth in Section 10.12(h).

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IN WITNESS WHEREOF, the undersigned have caused this Agreement and Plan of Merger to be executed by their respective duly authorized officers to be effective as of the date first above written.

PROJECT ALPHA INTERMEDIATE HOLDING, INC.

By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: CEO and President

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement and Plan of Merger to be executed by their respective duly authorized officers to be effective as of the date first above written.

QLIK TECHNOLOGIES, INC.

By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: CEO and President

IN WITNESS WHEREOF, the undersigned have caused this Agreement and Plan of Merger to be executed by their respective duly authorized officers to be effective as of the date first above written.

 

QLIKTECH INTERNATIONAL AB

By: /s/ Jørn-▇▇▇▇▇ ▇▇▇▇▇▇

Name: Jørn-▇▇▇▇▇ ▇▇▇▇▇▇

Title: Authorized Signatory

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement and Plan of Merger to be executed by their respective duly authorized officers to be effective as of the date first above written.

JOFFIGER LTD.

By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: Director

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement and Plan of Merger to be executed by their respective duly authorized officers to be effective as of the date first above written.

 

ATTUNITY LTD.

By: /s/ ▇▇▇▇▇▇ ▇▇▇▇

Name: ▇▇▇▇▇▇ ▇▇▇▇

Title: ____________

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