Exhibit 4.3
April ___, 2009
American Stock Transfer
& Trust Company, LLC
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with your appointment
as Subscription Agent in the transaction described herein, Attunity Ltd., an Israeli
company (the Company), hereby confirms its arrangements with you as follows:
| 1. |
Rights
Offering – The Company is offering (the “Rights
offering”) to the holders of Ordinary Shares, par value NIS 0.01 per share
(“Common Stock”), on ____________, 2008 (the “Record Date”),
the right (“Rights”) to subscribe for Units (“Units”), each
Unit consisting of one share of Common Stock and [ ] Warrant to purchase [ ]
share of Common Stock. Except as set forth under Paragraphs 8 and 9 below,
Rights shall cease to be exercisable at 5:00 p.m., New York City time, on
_______________, 2009 or such later date of which the Company notifies you
orally and confirms in writing (the “Expiration Date”). A total of
_____ Right(s) is/are being issued for _____ Common Stock held on the Record
Date. Payment in full of the subscription price of $_______ (the “Subscription
Price”) is/are required to subscribe for one Unit. Rights are evidenced by
non-transferable subscription certificates in registered form (“Subscription
Certificates”). Each holder of Subscription Certificate(s) who exercises
the holder’s right to subscribe for all Units that can be subscribed for
with the Rights evidenced by such Subscription Certificate(s) (the “Basic
Subscription Right”) will have the right to subscribe for additional
Units, if any, available as a result of any unexercised Rights (such additional
subscription right being referred to hereafter as the “Additional
Subscription Privileged”). The Rights Offering will be conducted in the
manner and upon the terms set forth in the Company’s Prospectus included
in the Registration Statement on Form F-1 filed by the Company with the SEC on
________, 2009, as amended from time to time (the “Prospectus”),
which is incorporated herein by reference and made a part hereof as if set
forth in full herein. |
| 2. |
Appointment
of Subscription Agent – You are hereby appointed as
Subscription Agent to effect the Rights offering in accordance with the
Prospectus. Each reference to you in this letter is to you in your capacity as
Subscription Agent unless the context indicates otherwise. |
| 3. |
Delivery
of Documents – Enclosed herewith are the following, the
receipt and review of which you acknowledge by your execution hereof: |
| |
(a)
a copy of the Prospectus; |
| |
(b)
the form of Subscription Certificate (with instructions); |
| |
(c)
resolutions adopted by the Board of Directors of the Company in connection with the Rights Offering, certified by the secretary of the Company; |
| |
(d)
Notice of Guaranteed Delivery; and |
| |
(e)
Form of Letter to Record Holders. |
| |
As
soon as is reasonably practical, you shall mail or cause to be mailed to each holder of
Common Stock at the close of business on the Record Date a Letter to Record Holder, a
Subscription Certificate (and instructions) evidencing the Rights to which such holder is
entitled, a Notice of Guaranteed Delivery, a Prospectus and an envelope addressed to you.
Prior to mailing, the Company (or its transfer agent) will provide you with blank
Subscription Certificates which you will prepare and issue in the names of holders of
Common Stock of record at the close of business on the Record Date and for the number of
Rights to which they are entitled. The Company will also provide you with a sufficient
number of copies of each of the documents to be mailed with the Subscription Certificates. |
| 4. |
Subscription
Procedure – |
| |
(a)
Upon your receipt prior to 5:00 p.m., New York
City time, on the Expiration Date (by mail or delivery), as
Subscription Agent, of (i) any Subscription Certificate completed and
endorsed for exercise, as provided on the reverse side of the
Subscription Certificate (except as provided in paragraph 8 hereof), and
(ii) payment in full of the Subscription Price in U.S. dollar by
check, bank draft or money order payable at par (without
deduction for bank service charges or otherwise) to the order of
American Stock Transfer& Trust Company, you shall as soon
as practicable after the Expiration Date, but after performing the
procedures described in subparagraphs (b) and (c) below, mail to the
subscriber’s registered address on the books of the Company
certificates representing the securities underlying each Unit duly
subscribed for (pursuant to the Basic Subscription Right and the
Additional Subscription Privilege) and furnish a list of all such
information to the Company. |
| |
(b)
As soon as practicable after the Expiration Date
you shall calculate the number of Units to which each subscriber is
entitled pursuant to the Additional Subscription Privilege. The
Additional Subscription Privilege may only be exercised by holders
who subscribe to all the Units that can be subscribed for under the
Basic Subscription Right. The Units available for additional
subscriptions will be those that have not been subscribed and paid
for pursuant to the Basic Subscription Right (the “Remaining
Units”). Where there are sufficient Remaining Units to satisfy
all additional subscriptions by holders exercising their rights under
the Additional Subscription Privilege, each holder shall be allotted
the number of Additional Units subscribed for. If the aggregate
number of Units subscribed for under the Additional Subscription
Privilege exceeds the number of Remaining Units, the number of
Remaining Units allotted to each participant in the Additional
Subscription Privilege shall be in proportion to the number of Units
that such subscriber purchased by exercising their Basic Subscription Rights. If there is
an allocation of the Remaining Units in which a subscriber would receive an allocation of
a greater number of Units than subscribed for under the Additional Subscription Privilege,
then you will allocate to such subscriber only the number of Additional Units for
which they subscribed.
Any
fractional Unit to which persons exercising their Additional
Subscription Privilege would otherwise be entitled pursuant to such
allocation shall be rounded to the next whole Unit. |
| |
(c)
Upon calculating the number of Units to which
each subscriber is entitled pursuant to the Additional Subscription
Privilege and the amount overpaid, if any, by each subscriber, you
shall, as soon as practicable, furnish a list of all such information
to the Company. |
2
| |
(d)
Upon calculating the number of Units to which
each subscriber is entitled pursuant to the Additional Subscription
Privilege and assuming payment for the additional Units subscribed
for has been delivered, you shall mail, as contemplated in
subparagraph (a) above, the certificates representing the additional
securities which the subscriber has been allotted. If a lesser number
of Units is allotted to a subscriber under the Additional
Subscription Privilege than the subscriber has tendered payment for,
you shall remit the difference to the subscriber without interest or
deduction at the same time as certificates representing the
securities allotted pursuant to the Additional Subscription Privilege
are mailed. |
| |
(e)
Funds received by you pursuant to the Basic
Subscription Right and the Additional Subscription Privilege shall be
held by you in a segregated account. Upon mailing certificates
representing the securities and refunding subscribers for additional
Units subscribed for but not allocated, if any, you shall promptly
remit to the Company all funds received in payment of the Subscription
Price for Units sold in the Rights Offering. |
| 5. |
No
Subdivision. Sale or Transfer of Rights – As described in
the Prospectus, the Rights are not transferable. |
| 6. |
Defective
Exercise of Rights Lost Subscription Certificates – The
Company shall have the absolute right to reject any defective exercise of
Rights or to waive any defect in exercise. Unless requested to do so by the
Company, you shall not be under any duty to give notification to holders of
Subscription Certificates of any defects or irregularities in subscriptions but
you shall inform the Company on such defects. Subscriptions will not be deemed
to have been made until any such defects or irregularities have been cured or
waived within such time as the Company shall determine. You shall as soon as
practicable return Subscription Certificates with the defects or irregularities
which have not been cured or waived to the holder of the Rights. If any
Subscription Certificate is alleged to have been lost, stolen or destroyed, you
should follow the same procedures followed for lost stock certificates
representing Common Stock you use in your capacity as transfer agent for the
Company’s Common Stock. |
| 7. |
Late
Delivery – If prior to 5:00 p.m., New York City time, on the
Expiration Date you receive (i) payment in full of the Subscription Price for
the Units being subscribed for and (ii) a guarantee notice substantially in the
form of the Notice of Guaranteed Delivery delivered with the Subscription
Certificate, from a financial institution having an office or correspondent in
the United States, or a member firm of any registered United States national
securities exchange or of the National Association of Securities Dealers, Inc.
stating the certificate number of the Subscription Certificate relating to the
Rights, the name and address of the exercising subscriber, the number of Rights
represented by the Subscription Certificate held by such exercising subscriber,
the number of Units being subscribed for pursuant to the Rights and
guaranteeing the delivery to you of the Subscription Certificate evidencing
such Rights within three NASDAQ National Market (“NNM”) trading days
following the date of the Notice of Guaranteed Delivery, then the Rights may be
exercised even though the Subscription Certificate was not delivered to you
prior to 5:00 p.m., New York City time, on the Expiration Date, provided that
within three NNM trading days following the date of the Notice of Guaranteed
Delivery you receive the properly completed Subscription Certificate evidencing
the Rights being exercised, with signatures guaranteed if required. |
3
| 8. |
Delivery – You
shall deliver to the Company the exercised Subscription Certificates in
accordance with written directions received from the Company and shall deliver
to the subscribers who have duly exercised Rights at their registered addresses
certificates representing the securities subscribed for as instructed on the
reverse side of the Subscription Certificates. |
| 9. |
Reports – You
shall notify the Company by electronic mail on or before the close of business
on each business day during the period commencing 5 business days after the
mailing of the Rights and ending at the Expiration Date (and in the case of
guaranteed deliveries ending three NNM trading days after the Expiration Date)
(a “daily notice”), which notice shall thereafter be confirmed in
writing, of (i) the number of Rights exercised an the day covered by such daily
notice, (ii) the number of Rights subject to guaranteed exercises on the day
covered by such daily notice, (iii) the number of Rights for which defective
exercises have been received on the day covered by such daily notice, and (iv)
the cumulative total of the information set forth in clauses (i) through (iii)
above. At or before 5:00 p.m., New York City time, on the first NNM trading day
following the Expiration Date you shall certify in writing to the Company the
cumulative total through the Expiration Date of all the information set forth
in clauses (i) through (iii) above. At or before 10:00 a.m., New York City
time, on the fifth NNM trading day following the Expiration Date you will
execute and deliver to the Company a certificate setting forth the number of
Rights exercised pursuant to a Notice of Guaranteed Delivery and as to which
Subscription Certificates have been timely received. You shall also maintain
and update a listing of holders who have fully or partially exercised their
Rights, holders who have transferred their Rights and their transferees, and
holders who have not exercised their Rights. You shall provide the Company or
its designees with such information compiled by you pursuant to this paragraph
9 as any of them shall request. |
| 10. |
Future
Instructions – With respect to notices or instructions to beprovided
by the Company hereunder, you may rely and act on any written instruction
signed by any one or more of the following authorized officers or employees of
the Company: |
| 11. |
Payment
of Expenses – The Company will pay you compensation for
acting in your capacity as Subscription Agent hereunder in the amount of
$14,000 plus your reasonable out-of-pocket expenses not to exceed $3,000,
unless previously approved in writing by the Company. The Company will pay an
additional fee equal to one-third of the Subscription Agent fee for each
extension of the Offering (except for the first extension), plus any reasonable
out-of-pocket expenses associated with such extension. |
4
| 13. |
Indemnification – The
Company covenants and agrees to indemnify and hold you harmless against any costs,
expenses (including reasonable fees of legal counsel), losses or damages, which may be
paid, incurred or suffered by or to which you may become subject arising from or out of,
directly or indirectly, any claim or liability resulting from your actions as
Subscription Agent pursuant hereto; provided that such covenant and agreement does not
extend to such costs, expenses, losses and damages incurred or suffered by you as a
result of, or arising out of, your own negligence, misconduct or bad faith or that of any
employees, agents or independent contractors used by you in connection with performance
of your duties as Subscription Agent hereunder. |
| 14. |
Notices – Unless
otherwise provided herein, all reports, notices and other communications
required or permitted to be given hereunder shall be in writing and delivered
by hand or confirmed telecopy or by first class U.S. mail, postage prepaid,
shall be deemed given if by hand or telecopy, upon receipt or if by U.S. mail,
three business days after deposit in the U.S. mail and shall be addressed as
follows |
| |
(a) |
If
to the Company, to: |
| |
Attunity Ltd
Kfar Netter Industrial Park, POB 3787
Kfar Netter ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: Company Secretary
Telephone: (▇▇▇▇) ▇-▇▇▇-▇▇▇▇
Telecopy: (▇▇▇▇) ▇-▇▇▇-▇▇▇▇
|
| |
American Stock Transfer & Trust Company, LLC
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
|
| 15. |
Prospectus.
In the event that any claim of inconsistency between this Agreement and the
terms of the Rights Offering described in the Prospectus arises, the terms of
the of the Rights Offering described in the Prospectus shall control, except
with respect to the compensation and indemnification of you as Subscription
Agent, which shall be controlled by the terms of this Agreement. |
[SIGNATURE PAGE FOLLOWS]
5
Yours truly,
|
|
ATTUNITY LTD
By:___________________________________
Name:________________________________
Title:__________________________________ |
Agreed & Accepted:
AMERICAN STOCK TRANSFER
& TRUST COMPANY, LLC
By:___________________________________
Name:________________________________
Title:__________________________________ |
|
|
6