As filed with the Securities and Exchange Commission on February 22, 2005
Registration No. 333-
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATTUNITY LTD
(Exact name of Registrant as specified in its charter)
Israel Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Attunity Ltd
Einstein Building, Tirat Carmel, Haifa 39101, Israel
Tel. (972)(4) 855-9660
(Address and telephone number of Registrant's principal executive offices)
-------------------------
Attunity Inc.
Attn.: Ofer Segev, Chief Financial Officer
40 Audubon Road
Wakefield, Massachusetts 01880
Tel. (781) 213-5200 (Name, address
and telephone number of agent for service)
-------------------------
Copies of all communications, including communications sent to agent for
service, should be sent to:
Oded Eran, Adv. Steven J. Glusband, Esq.
Goldfarb, Levy, Eran & Co. Carter Ledyard & Milburn LLP
Europe-Israel Tower 2 Wall Street
2 Weizmann Street New York, NY 10005
Tel Aviv 64239, Israel Tel: 212-238-8605
Tel: (+972 3) 608-9999 Fax: 212-732-3232
Fax: (+972 3) 608-9908
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 436,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of each class of Amount to be Proposed Proposed Amount of
securities registered(1) maximum maximum aggregate registration
to be registered aggregate price per offering price(2) fee (3)
share(2)
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Ordinary shares, par value NIS 1,018,182 $2.85 $2,901,818.70 $341.54
0.1 per share
====================================================================================================================
(1) The registration statement also includes an indeterminate number of the
Registrant's ordinary shares that may become offered, issuable or sold to
prevent dilution resulting from stock splits, stock dividends and similar
transactions, which are included pursuant to Rule 416 under the Securities Act
of 1933, as amended.
(2) Estimated solely for the purpose of computing the amount of the
registration fee in accordance with Rule 457(c) under the Securities Act of
1933, on the basis of the average of the high and the low prices $2.90 and
$2.80, respectively) of the Registrant's ordinary shares as quoted on the NASDAQ
National Market on February 18, 2005.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933 as
follows: proposed maximum aggregate offering price multiplied by 0.0001177.
--------------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
ii
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 22, 2005
PROSPECTUS
ATTUNITY LTD
1,018,182 ORDINARY SHARES
This prospectus relates to up to 1,018,182 ordinary shares that the
selling shareholders named in this prospectus or their transferees may offer
from time to time. Of the ordinary shares offered hereby, 727,273 ordinary
shares were issued and 290,909 ordinary shares are issuable upon exercise of
warrants that were issued to the selling shareholders, pursuant to a Securities
Purchase Agreement dated January 24, 2005. We are registering the ordinary
shares for disposition by the selling shareholders pursuant to our commitment to
them. The registration of the ordinary shares does not necessarily mean that the
selling shareholders or their transferees will offer or sell their ordinary
shares.
Attunity Ltd will not receive any additional proceeds from the sale by
the selling shareholders of the ordinary shares offered by this prospectus, and
will bear all expenses in connection with the preparation of this prospectus.
The ordinary shares of Attunity Ltd are traded on the NASDAQ National
Market under the symbol "ATTU." On February 18, 2005, the closing price of an
ordinary share of Attunity Ltd on the NASDAQ National Market was $2.90.
See "Risk Factors" beginning on page 5 to read about factors you should
consider before buying the ordinary shares of Attunity Ltd.
----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
Prospectus dated , 2005
TABLE OF CONTENTS
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Page
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Notice Regarding Forward-Looking Statements 2
Prospectus Summary 4
Risk Factors 5
Capitalization and Indebtedness 15
Reasons for the Offer and Use of Proceeds 15
Market Price Data 16
Selling Shareholders 17
Offer Statistics, Expected Time Table and Plan of Distribution 18
Expenses Associated with the Registration 20
Foreign Exchange Controls and Other Limitations 20
Experts 21
Legal Matters 21
Matterial Changes 21
Where You Can Best Find More Information; Incorporation of
Certain Information by Reference 21
Enforceability of Civil Liabilities 23
In this prospectus, "we", "us", "our", the "Company" and "Attunity"
refer to Attunity Ltd, an Israeli company Attunity Ltd and its subsidiaries,
unless otherwise indicated.
We are a "foreign private issuer" as defined in Rule 3b-4 under the
Securities Exchange Act of 1934, or the Exchange Act. As a result, our proxy
solicitations are not subject to the disclosure and procedural requirements of
Regulation 14A under the Exchange Act and transactions in our equity securities
by our officers and directors are exempt from Section 16 of the Exchange Act. In
addition, we are not required under the Exchange Act to file periodic reports
and financial statements as frequently or as promptly as U.S. companies whose
securities are registered under the Exchange Act.
We publish annually an annual report on our website containing
financial statements that have been examined and reported on, with an opinion
expressed by, a qualified independent auditor or certified public accountant. We
prepare our financial statements in United States dollars and in accordance with
accounting principles generally accepted in the United States. All references to
"dollars" or "$" in this prospectus are to U.S. dollars, and all references to
"shekels" or "NIS" are to New Israeli Shekels.
NOTICE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated in it by reference
contain forward-looking statements which involve known and unknown risks and
uncertainties. We include this notice for the express purpose of permitting us
to obtain the protections of the safe harbor provided by the Private Securities
Litigation Reform Act of 1995 with respect to all such forward-looking
statements. Examples of forward-looking statements include: projections of
capital expenditures, competitive pressures, revenues, growth prospects, product
development,
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financial resources and other financial matters. You can identify these and
other forward-looking statements by the use of words such as "may," "will,"
"should," "plans," "anticipates," "believes," "estimates," "predicts,"
"intends," "potential" or the negative of such terms, or other comparable
terminology.
Our ability to predict the results of our operations or the effects of
various events on our operating results is inherently uncertain. Therefore, we
caution you to consider carefully the matters described under the caption "Risk
Factors" and certain other matters discussed in this prospectus, the documents
incorporated by reference in this prospectus, and other publicly available
sources. Such factors and many other factors beyond the control of our
management could cause our actual results, performance or achievements to be
materially different from any future results, performance or achievements that
may be expressed or implied by the forward-looking statements.
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PROSPECTUS SUMMARY
You should read the following summary together with the more detailed
information about us, the ordinary shares that may be sold from time to time,
and our financial statements and the notes to them, all of which appear
elsewhere in this prospectus or in the documents incorporated by reference in
this prospectus.
ATTUNITY LTD
We were incorporated under the laws of the State of Israel in 1988. We
develop, market and support standards-based integration middleware for accessing
mainframe, enterprise data sources and legacy applications.
Our principal executive offices are located at Einstein Building, Tirat
Carmel, Haifa 39101, Israel, and our telephone number is (+972) 4-855-9666. Our
address on the Internet is http://www.attunity.com. Information contained on our
website does not constitute a part of this prospectus.
The Offering
Ordinary shares offered.............. 1,018,182 shares (including 290,909
shares issuable upon
exercise of warrants).
NASDAQ National Market symbol........ "ATTU"
Use of proceeds...................... We will not receive any proceeds from
the sale of the ordinary shares offered
hereby. We will, however, receive the
proceeds from the exercise of the
warrants if and when they are exercised,
which we will use for working capital
and general corporate purposes.
Ordinary shares outstanding.......... 16,492,550 shares.
Risk Factors......................... Prospective investors should carefully
consider the "Risk Factors" beginning
on page 5 before buying the ordinary
shares offered hereby.
4
RISK FACTORS
You should carefully consider the risks and uncertainties described
below before investing in our ordinary shares. Our business, prospects,
financial condition and results of operations could be adversely affected due to
any of the following risks. In that case, the value of our ordinary shares could
decline, and you could lose all or part of your investment.
Risk Factors Relating to Our Company
We have a history of operating losses and may not achieve or sustain
profitability in the future.
We reported an operating loss of $4.04 million for the year ended
December 31, 2004 and incurred operating losses in four of the five preceding
years. We can not assure you that we will be able to achieve or sustain
profitable operations in the future.
Our operating results fluctuate significantly.
Our quarterly results have fluctuated significantly in the past and are
likely to fluctuate significantly in the future. Our future operating results
will depend on many factors, including, but not limited to, the following:
o the size and timing of significant orders and their fulfillment;
o demand for our products;
o changes in our pricing policies or those of our competitors;
o the number, timing and significance of product enhancements;
o new product announcements by us and our competitors;
o our ability to successfully market newly acquired products and
technologies;
o our ability to develop, introduce and market new and enhanced
products on a timely basis;
o changes in the level of our operating expenses;
o budgeting cycles of our customers;
o customer order deferrals in anticipation of enhancements or new
products that we or our competitors offer;
o product life cycles;
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o software bugs and other product quality problems;
o personnel changes;
o changes in our strategy;
o seasonal trends and general domestic and international economic
and political conditions, among others;
o currency exchange rate fluctuations and economic conditions in
the geographic areas where we operate; and
o the assurance of success in marketing new products or
technologies.
Due to the foregoing factors, quarterly revenues and operating results
are difficult to forecast, and it is likely that our future operating results
will be adversely affected by these or other factors.
Revenues are also difficult to forecast because our sales cycle, from
initial evaluation to purchase, is lengthy and varies substantially from
customer to customer. We typically ship product orders shortly after receipt
and, consequently, order backlog at the beginning of any quarter has in the past
represented only a small portion of that quarter's revenues. As a result,
license revenues in any quarter depend substantially on orders booked and
shipped in that quarter.
Due to all of the foregoing, we cannot predict revenues for any future
quarter with any significant degree of accuracy. Accordingly, we believe that
period-to-period comparisons of our operating results are not necessarily
meaningful and you should not rely upon them as indications of future
performance. Although we have experienced revenue growth in the past, we may not
be able to sustain this growth rate, and you should not consider such past
growth indicative of future revenue growth, or of future operating results.
We may need to raise additional capital in the future, which may not be
available to us.
Our working capital requirements and the cash flow provided by our
operating activities are likely to vary greatly from quarter to quarter,
depending on the timing of orders and deliveries, and the payment terms offered
to our customers. We anticipate that our existing capital resources will be
adequate to satisfy our working capital and capital expenditure requirements
until at least December 31, 2005, but we may need to raise additional funds in
the future for a number of uses, including:
o implementing marketing and sales activities for our products and
services;
o expanding research and development programs;
o expanding investment in fixed assets; and
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o hiring additional qualified personnel.
We may not be able to obtain additional funds on acceptable terms or at
all. If we cannot raise needed funds on acceptable terms, we may be required to
delay, scale back or eliminate some aspects of our operations and we may not be
able to:
o develop new products;
o enhance our existing products;
o remain current with evolving industry standards;
o take advantage of future opportunities; or
o respond to competitive pressures or unanticipated requirements.
Any equity or debt financings, if available at all, may cause dilution
to our then-existing shareholders. If additional funds are raised through the
issuance of equity securities, the net tangible book value per share of our
ordinary shares would decrease and the percentage ownership of then current
shareholders would be diluted.
Our operating results vary quarterly and seasonally.
We have often recognized a substantial portion of our revenues in the
last quarter of the year and in the last month, or even weeks or days, of a
quarter. Our expense levels are substantially based on our expectations for
future revenues and are therefore relatively fixed in the short term. If revenue
levels fall below expectations, our quarterly results are likely to be
disproportionately adversely affected because a proportionately smaller amount
of our expenses varies with our revenues.
Our operating results reflect seasonal trends and we expect to continue
to be affected by such trends in the future. We expect to continue to experience
relatively higher sales in the first and second quarters of the year and
relatively lower sales in the third quarter ending September 30, as a result of
reduced sales activity in Europe during the summer months. Due to the foregoing
factors, in some future quarter our operating results may be below the
expectations of public market analysts and investors. In such event, it is
likely that the price of our ordinary shares would be materially adversely
affected.
We are subject to risks associated with international operations.
We are based in Israel and generate a large percentage of our sales
outside the United States. Our sales in the United States accounted for 45.0%,
40.2 % and 39.3% of our total revenues for the years ended December 31, 2001,
2002 and 2003, respectively. Although we continue to expand our international
operations and commit significant management time and financial resources to
developing direct and indirect international sales and support channels, we
cannot be certain that we will be able to maintain or increase international
market demand for
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our products. To the extent that we cannot do so in a timely manner, our
business, operating results and financial condition will be adversely affected.
International operations are subject to inherent risks, including the
following:
o the impact of possible recessionary environments in multiple
foreign markets;
o longer receivables collection periods and greater difficulty in
accounts receivable collection;
o unexpected changes in regulatory requirements;
o difficulties and costs of staffing and managing foreign
operations;
o reduced protection for intellectual property rights in some
countries;
o potentially adverse tax consequences; and
o political and economic instability.
We cannot be certain that we, our distributors or our resellers will be
able to sustain or increase revenues from international operations or that the
foregoing factors will not have a material adverse effect on our future revenues
and, as a result, our business, operating results and financial condition.
We may be adversely affected by fluctuations in currency exchange
rates. While our revenues are generally denominated in United States dollars,
the Euro and British Pound, a significant portion of our expenses are incurred
in NIS. If we were to determine that it was in our best interests to enter into
any hedging transactions in the future, there can be no assurance that we will
be able to so do or that such transactions, if entered into, will materially
reduce the effect of fluctuations in foreign currency exchange rates on our
results of operations. In addition, if for any reason exchange or price controls
or other restrictions on the conversion of foreign currencies into NIS were
imposed, our business could be adversely affected. Although exposure to currency
fluctuations to date has not had a material adverse effect on our business there
can be no assurance such fluctuations in the future will not have a material
adverse effect on revenues from international sales and, consequently our
business, operating results and financial condition.
We are subject to risks relating to proprietary rights and risks of
infringement.
We are dependent upon our proprietary software technology and we rely
primarily on a combination of copyright and trademark laws, trade secrets,
confidentiality procedures and contractual provisions to protect our proprietary
rights. Except for our trademark registrations for Attunity(R), Attunity B2B(R)
and Attunity Connect(R) in the United States, we do not have any trademark,
patent or copyright registrations. To protect our software, documentation and
other written materials, we rely on trade secret and copyright laws, which
afford only limited protection. It is possible that others will develop
technologies that are similar or superior to our
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technology. Despite our efforts to protect our proprietary rights, unauthorized
parties may attempt to copy aspects of our products or to obtain and use
information that we regard as proprietary. It is difficult to police the
unauthorized use of products in our field, and we expect software piracy to be a
persistent problem, although we are unable to determine the extent to which
piracy of our software products exists. In addition, the laws of some foreign
countries do not protect our proprietary rights as fully as do the laws of the
United States. We cannot be certain that our means of protecting our proprietary
rights in the United States or abroad will be adequate or that our competition
will not independently develop similar technology.
We are not aware that we have infringed any proprietary rights of third
parties. It is possible, however, that third parties will claim that we have
infringed upon their intellectual property rights. We believe that software
product developers will increasingly be subject to infringement claims as the
number of products and competitors in our industry segment grows and the
functionality of products in different industry segments overlaps. It would be
time consuming for us to defend any such claims, with or without merit, and any
such claims could:
o result in costly litigation;
o divert management's attention and resources;
o cause product shipment delays; or
o require us to enter into royalty or licensing agreements. Such
royalty or licensing agreements, if required, may not be
available on terms acceptable to us, if at all.
If there is a successful claim of infringement against us and we are
not able to license the infringed or similar technology or other intellectual
property, our business, operating results and financial condition would be
materially adversely affected.
A significant portion of our revenues are dependent on maintenance payments from
customers using legacy CorVision and Mancal 2000 software.
Approximately 16% of our revenues are derived from annual maintenance
payments made by customers who use CorVision, Mancal 2000 and APTuser, which are
legacy software products. In 2002, 2003 and 2004, these revenues on a
consolidated basis totaled $3.0 million, $2.8 million and $2.7 million,
respectively. Some of these customers may replace these legacy products with
more state-of-the-art products from other vendors and, as a result, discontinue
use of these products. This would result in a reduction in our maintenance
revenues and adversely affect our operating results.
Our products have a lengthy sales cycle.
Our customers typically use our products to deploy applications that
are critical to their business. As a result, the licensing and implementation of
our products generally involves a significant commitment of attention and
resources by prospective customers. Because of the
9
long approval process that typically accompanies strategic initiatives or
capital expenditures by companies, our sales process is often delayed, with
little or no control over any delays encountered by us. Our sales cycle can be
further extended for sales made through third party distributors. Delay in the
sales cycle of our products could result in significant fluctuations in our
quarterly operating results.
Rapid technological change may adversely affect the market acceptance of our
products and services.
We compete in a market that is characterized by rapid technological
change. The introduction of new technologies could render existing products and
services obsolete and unmarketable and could exert price pressures on our
products and services. Any future success will depend upon our ability to
address the increasingly sophisticated needs of our customers by:
o supporting existing and emerging hardware, software, databases
and networking platforms; and
o developing and introducing new and enhanced applications that
keep pace with such technological developments, emerging new
markets and changing customer requirements.
Our products may contain defects that may be costly to correct, delay market
acceptance of our products and expose us to litigation.
Despite testing by us, errors may be found in our software products. If
defects are discovered, we may not be able to successfully correct them in a
timely manner or at all. Defects and failures in our products could result in a
loss of, or delay in, market acceptance of our products and could damage our
reputation. Although our standard license agreement with our customers contains
provisions designed to limit our exposure to potential product liability claims,
it is possible that these provisions may not be effective or enforceable under
the laws of some jurisdictions, and we could fail to realize revenues and suffer
damage to our reputation as a result of, or in defense of, a substantial claim.
We currently do not carry product liability insurance for our products.
Our future success depends to a large extent on our new senior management and
key personnel.
Our future success depends to a large extent on our new senior
management and key personnel. In connection with a private placement of our
securities to a group of investors led by Messrs. Shimon Alon, Ron Zuckerman and
Itzhak (Aki) Ratner, Mr. Shimon Alon was appointed Chairman of our Board of
Directors in May 2004 and Messrs. Ron Zuckerman and Itzhak (Aki) Ratner were
appointed to our Board of Directors in May 2004 and July 2004, respectively. In
July 2004, Mr. Arie Gonen, our founding Chief Executive Officer, notified us
that he would resign as both Chief Executive Officer and director of our company
following the receipt of the requisite approval of our shareholders of an
agreement regarding the termination of
10
his employment and his resignation from our Board of Directors. Such approval
was obtained at our extraordinary meeting of shareholders held on September 9,
2004. In the interim period, Mr. Ratner took over Mr. Gonen's responsibilities
in the capacity of Deputy Chief Executive Officer of our company and he was
formally appointed as our Chief Executive Officer as of the termination of Mr.
Gonen's employment. We believe that Mr. Ratner, who has a successful track
record as a president in the software industry, possesses the attributes to
successfully succeed Mr. Gonen as our Chief Executive Officer. Mr. Ratner has
appointed a new Vice President Europe - Middle East and Africa, Vice President -
Research and Development and Vice President - Finance. We believe that the
combined leadership and experience that our new senior management bring to our
company will significantly strengthen our company, however, no assurance can be
given that our new management team will succeed in achieving their goals for our
company. We have taken a one-time charge of $1,645,000 in the third quarter of
2004 related to Mr. Gonen's resignation (pursuant to the terms of the agreement
for the termination of his employment that was approved by our shareholders) and
the termination of employment of our other executive officers that were
replaced.
Our results may be adversely affected by competition.
The market for our software products is fragmented and is intensely
competitive. Competition in the industry is generally based on product
performance, depth of product line, technical support and price. We compete both
with international and local software providers, many of whom have significantly
greater financial, technical and marketing resources than us. We anticipate
continued growth and competition in the software products market and,
consequently, the entrance of new competitors into the market. Our existing and
potential competitors may be able to develop software products and services that
are as effective as, or more effective or easier to use than those offered by
us. Such existing and potential competitors may also enjoy substantial
advantages over us in terms of research and development expertise, manufacturing
efficiency, name recognition, sales and marketing expertise and distribution
channels. There can be no assurance that we will be able to compete successfully
against current or future competitors or that competition will not have a
material adverse effect on our future revenues and, consequently, on our
business, operating results and financial condition.
We do not intend to pay cash dividends.
Our policy is to retain earnings for use in our business and, for this
reason, we do not intend to pay cash dividends on the ordinary shares in the
foreseeable future.
Risk Factors Relating to our Ordinary Shares
Our share price has been volatile in the past and may decline in the future.
Our ordinary shares have experienced significant market price and
volume fluctuations in the past and may experience significant market price and
volume fluctuations in the future in response to factors such as the following,
some of which are beyond our control:
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o quarterly variations in our operating results;
o operating results that vary from the expectations of securities
analysts and investors;
o changes in expectations as to our future financial performance,
including financial estimates by securities analysts and
investors;
o announcements of technological innovations or new products by us
or our competitors;
o announcements by us or our competitors of significant contracts,
acquisitions, strategic partnerships, joint ventures or capital
commitments;
o changes in the status of our intellectual property rights;
o announcements by third parties of significant claims or
proceedings against us;
o additions or departures of key personnel;
o future sales of our ordinary shares; and
o stock market price and volume fluctuations.
Domestic and international stock markets often experience extreme price
and volume fluctuations. Market fluctuations, as well as general political and
economic conditions, such as a recession or interest rate or currency rate
fluctuations or political events or hostilities in or surrounding Israel, could
adversely affect the market price of our ordinary shares.
In the past, securities class action litigation has often been brought
against a company following periods of volatility in the market price of its
securities. We may in the future be the target of similar litigation. Securities
litigation could result in substantial costs and divert management's attention
and resources.
Substantial future sales of our ordinary shares may depress our share price.
If our shareholders sell substantial amounts of our ordinary shares,
including shares issued upon the exercise of outstanding warrants, convertible
notes or employee options, or if the perception exists that our shareholders may
sell a substantial number of our ordinary shares, the market price of our
ordinary shares may fall. Any substantial sales of our shares in the public
market also might make it more difficult for us to sell equity or equity related
securities in the future at a time, in a place and on terms we deem appropriate.
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Risk Factors Relating to Our Operations in Israel
Conducting business in Israel entails special risks.
We are incorporated under the laws of, and our executive offices and
research and development facilities are located in, the State of Israel.
Although most of our sales are made to customers outside Israel, we are directly
influenced by the political, economic and military conditions affecting Israel.
Specifically, we could be adversely affected by any major hostilities involving
Israel, a full or partial mobilization of the reserve forces of the Israeli
army, the interruption or curtailment of trade between Israel and its present
trading partners, or a significant downturn in the economic or financial
condition of Israel.
Since the establishment of the State of Israel in 1948, a number of
armed conflicts have taken place between Israel and its Arab neighbors, and a
state of hostility, varying from time to time in intensity and degree, has led
to security and economic problems for Israel. Since September 2000, there has
been a marked increase in violence, civil unrest and hostility, including armed
clashes, between the State of Israel and the Palestinians, and acts of terror
have been committed inside Israel and against Israeli targets in the West Bank
and Gaza. There is no indication as to how long the current hostilities will
last or whether there will be any further escalation. Any further escalation in
these hostilities or any future armed conflict, political instability or
violence in the region may have a negative effect on our business condition,
harm our results of operations and adversely affect our share price.
Furthermore, there are a number of countries that restrict business with Israel
or Israeli companies. Restrictive laws or policies of those countries directed
towards Israel or Israeli businesses had, and may in the future continue to
have, an adverse impact on our operations, our financial results or the
expansion of our business. No predictions can be made as to whether or when a
final resolution of the area's problems will be achieved or the nature thereof
and to what extent the situation will impact Israel's economic development or
our operations.
Our results of operations may be negatively affected by the obligation of our
personnel to perform military service.
Many of our executive officers and employees in Israel are obligated to
perform up to 36 days, depending on rank and position, of military reserve duty
annually and are subject to being called for active duty under emergency
circumstances. If a military conflict or war arises, these individuals could be
required to serve in the military for extended periods of time. Our operations
could be disrupted by the absence for a significant period of one or more of our
executive officers or key employees or a significant number of other employees
due to military service. Any disruption in our operations could adversely affect
our business.
Economic conditions in Israel.
In recent years Israel has been going through a period of recession in
economic activity, resulting in low growth rates and growing unemployment. Our
operations could be adversely affected if the economic conditions in Israel
continue to deteriorate. In addition, due to
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significant economic measures proposed by the Israeli Government, there have
been strikes and work stoppages in 2003 and 2004, affecting banks, airports and
ports. These strikes have had an adverse effect on the Israeli economy and on
business, including our ability to deliver products to our customers. Following
the passage by the Israeli Parliament of laws to implement the economic
measures, the Israeli trade unions have threatened further strikes or
work-stoppages, and these may have a material adverse effect on the Israeli
economy and on us.
Our financial results may be adversely affected by inflation and currency
fluctuations.
Since we report our financial results in dollars, fluctuations in rates
of exchange between the dollar and non-dollar currencies may have a material
adverse affect on our results of operations. A portion of our expenses are paid
in NIS (primarily salaries) and are influenced by the timing of, and the extent
to which, any increase in the rate of inflation in Israel over the rate of
inflation in the United States is not offset by the devaluation of the NIS in
relation to the dollar. We believe that the rate of inflation in Israel has not
had a material adverse effect on our business to date However, our dollar costs
in Israel will increase if inflation in Israel exceeds the devaluation of the
NIS against the dollar or if the timing of such devaluation lags behind
inflation in Israel. Over time, the NIS has been devalued against the dollar,
generally reflecting inflation rate differentials. Likewise, our operations
could be adversely affected if we are unable to guard against currency
fluctuations in the future. We do not currently engage in any currency hedging
transactions intended to reduce the effect of fluctuations in foreign currency
exchange rates on our results of operations. We cannot guarantee that we will
enter into such transactions in the future or that such measures will adequately
protect us from serious harm due to the impact of inflation in Israel.
We cannot guarantee continuation of government programs and tax benefits.
We have in the past received certain Israeli government grants and
currently enjoy certain tax benefits in Israel. To remain eligible for these
grants and tax benefits, we must continue to meet certain conditions, including
making some specified investments in fixed assets. If we fail to comply with
these conditions in the future, the benefits we receive could be canceled and we
may have to refund payments previously received under these programs (with
interest and linkage differentials) or pay certain taxes. We cannot guarantee
that these programs and tax benefits will be continued in the future, at their
current levels or at all. If these programs and tax benefits are ended, our
business, financial condition and results of operations could be negatively
affected.
Service and enforcement of legal process on us and our directors and officers
may be difficult to obtain.
Service of process upon our directors and officers and the Israeli
experts named herein, many of whom reside outside the United States, may be
difficult to obtain within the United States. Furthermore, since a substantial
portion of our assets, almost all of our directors, some of the officers and the
Israeli experts named in this annual report are located outside the United
States, any judgment obtained in the United States against us or these
individuals or entities may not be collectible within the United States.
14
There is doubt as to the enforceability of civil liabilities under the
Securities Act and the Securities Exchange Act in original actions instituted in
Israel. However, subject to certain time limitations and other conditions,
Israeli courts may enforce final judgments of U.S. courts for liquidated amounts
in civil matters, including judgments based upon the civil liability provisions
of those Acts.
Provisions of Israeli law may delay, prevent or make difficult an acquisition of
us, which could depress the price of our shares.
Provisions of Israeli corporate and tax law may have the effect of
delaying, preventing or making more difficult a merger with, or other
acquisition of, us. This could cause our ordinary shares to trade at prices
below the price for which third parties might be willing to pay to gain control
of us. Third parties who are otherwise willing to pay a premium over prevailing
market prices to gain control of us may be unable or unwilling to do so because
of these provisions of Israeli law.
Your rights and responsibilities as a shareholder will be governed by Israeli
law and differ in some respects from the rights and responsibilities of
shareholders under U.S. law.
We are incorporated under Israeli law. The rights and responsibilities
of holders of our ordinary shares are governed by our memorandum of association,
our articles of association and by Israeli law. These rights and
responsibilities differ in some respects from the rights and responsibilities of
shareholders in typical U.S. corporations. In particular, pursuant to the
Israeli Companies Law, a shareholder of an Israeli company has a duty to act in
good faith toward the company and other shareholders and to refrain from abusing
his power in the company, including, among other things, in voting at the
general meeting of shareholders on certain matters.
CAPITALIZATION AND INDEBTEDNESS
The table below sets forth the capitalization of our company as of
December 31, 2004, and as adjusted to give effect to the issuance of 727,273
ordinary shares in January 2005 to the selling shareholders:
December 31, 2004
----------------------------------------
Actual As Adjusted
-------------------- ----------------
(in thousands)
Long-term debt.................... $ 62 $ 62
Total shareholders' equity........ $ 9,672 $ 11,622
==================== ================
REASONS FOR THE OFFER AND USE OF PROCEEDS
This prospectus relates to the disposition of up to 1,018,182 of our
ordinary shares, of which 727,273 ordinary shares are outstanding and 290,909
ordinary shares are issuable upon exercise of warrants. We will not receive any
of the proceeds from the sale by the selling
15
shareholders of our ordinary shares. We will, however, receive the proceeds from
the exercise of the warrants if and when they are exercised.
MARKET PRICE DATA
Our ordinary shares have traded on the NASDAQ National Market since our
initial public offering on December 17, 1992.
Quarterly Stock Information
The following table sets forth, for each of the full financial quarters
in the years indicated, the high ask and low bid prices of our ordinary shares,
as quoted on the NASDAQ National Market.
High Low
------------ ------------
2003
----
First Quarter $1.05 $0.80
Second Quarter................... $1.59 $0.90
Third Quarter.................... $1.48 $1.00
Fourth Quarter................... $2.22 $1.05
2004
----
First Quarter.................... $3.62 $2.08
Second Quarter .................. $3.36 $2.30
Third Quarter.................... $2.90 $1.96
Fourth Quarter................... $2.80 $2.15
2005
----
First Quarter (through February 18) $3.16 $2.41
Monthly Stock Information
The following table sets forth, for each of the most recent six months,
the high ask and low bid prices of our ordinary shares, as quoted on the NASDAQ
National Market.
Month High Low
----- ----------- -----------
August 2004.................................. $2.60 $1.96
September 2004............................... $2.82 $2.20
October 2004................................. $2.71 $2.15
November 2004................................ $2.80 $2.16
December 2004................................ $2.65 $2.30
January 2005................................. $2.89 $2.41
16
SELLING SHAREHOLDERS
The registration statement of which this prospectus forms a part covers
up to 1,018,182 ordinary shares. On January 24, 2005 we entered into a
Securities Purchase Agreement with certain funds affiliated with Weiss, Peck &
Greer, pursuant to which such funds purchased an aggregate of 727,273 of our
ordinary shares for $2.0 million. In addition, these funds acquired warrants to
purchase an aggregate of 290,909 ordinary shares having an exercise price of
$2.75 per share, and exercisable until January 23, 2008, with a call provision
that allows us to call the exercise of the warrants if the closing price of the
ordinary shares exceeds $4.70 for twenty (20) consecutive trading days. The
ordinary shares and the warrants were issued to the funds in reliance upon the
exemption from securities registration afforded by Section 4(2) of the
Securities Act of 1933, as amended, or the Securities Act, including the
provisions of Regulation D promulgated thereunder. We undertook to file a
registration statement with the Securities and Exchange Commission, or the SEC,
to register the resale of the ordinary shares issued to such funds and the
ordinary shares issuable upon exercise of the warrants and to maintain a
registration statement in effect in order to allow the funds to freely sell
these shares.
We are registering the ordinary shares in order to permit the selling
shareholders to dispose of the shares from time to time.
The following table lists the selling shareholders and other
information regarding the beneficial ownership of the ordinary shares by each of
the selling shareholders. The second and third columns list the number and
percentage of ordinary shares beneficially owned by each selling shareholder,
based on each selling shareholder's ownership of ordinary shares, the promissory
notes and warrants as of February 18, 2005, assuming full conversion of the
promissory notes and full exercise of the warrants held by each selling
shareholder on that date, without regard to any limitations on exercise.
The fourth column lists the number of ordinary shares being offered by
this prospectus by each of the selling shareholders.
The fifth and sixth columns of the following table assume the sale of
all of the ordinary shares offered by the selling shareholders pursuant to this
prospectus. The selling shareholders may sell all, some or none of their
ordinary shares in this offering.
Percentage of
Number of Ordinary Percentage of Maximum Number of Number of Ordinary
Shares Ordinary Shares Ordinary Shares Ordinary Shares Shares
Beneficially Owned Beneficially Offered Pursuant Beneficially Beneficially
Name of Selling Prior to Owned Prior to to this Owned After Owned After
Shareholder Offering Offering Prospectus Offering Offering
-------------------------- -------------------- ------------------- -------------------- ------------------- ----------------
WPG Select Technology QP 371,563 (1) 2.24% 359,152 12,411 *
Fund, L.P. ......
WPG Select Technology
Overseas, L.P.... 219,117 (2) 1.32% 212,317 6,800 *
WPG Software
Fund, L.P......... 386,543 (3) 2.33% 375,043 11,500 *
17
WPG Select
Technology Fund,
L.P. ......... 74,170 (4) * 71,670 2,500 *
-----------------------
* Less than 1%
(1) Includes 60,662 ordinary shares issuable upon exercise of currently
exercisable Warrants. Weiss, Peck & Greer Investments, a division of
Robeco USA, LLC, is the Sole Managing Member of WPG-Software Fund
Manager, LLC, the General Partner of WPG Select Technology QP Fund, L.P.
Mr. Ben Taylor and Mr. Daniel Vandivort exercise sole voting and
dispositive powers with respect to both the shares held and the shares
issuable under the warrants held by WPG Select Technology QP Fund, L.P.
(2) Includes 102,615 ordinary shares issuable upon exercise of currently
exercisable Warrants. Weiss, Peck & Greer Investments, a division of
Robeco USA, LLC, is the Sole Managing Member of WPG-Software Fund
Manager, LLC, the Supervisory General Partner of WPG Select Technology
Overseas, L.P. Mr. Ben Taylor and Mr. Daniel Vandivort exercise sole
voting and dispositive powers with respect to both the shares held and
the shares issuable under the warrants held by WPG Select Technology
Overseas.
(3) Includes 107,155 ordinary shares issuable upon exercise of currently
exercisable Warrants. Weiss, Peck & Greer Investments, a division of
Robeco USA, LLC, is the Sole Managing Member of WPG-Software Fund
Manager, LLC, the General Partner of WPG Software Fund, L.P. Mr. Ben
Taylor and Mr. Daniel Vandivort exercise sole voting and dispositive
powers with respect to both the shares held and the shares issuable under
the warrants held by WPG Software Fund, L.P.
(4) Includes 20,477 ordinary shares issuable upon exercise of currently
exercisable Warrants. Weiss, Peck & Greer Investments, a division of
Robeco USA, LLC, is the Sole Managing Member of WPG-Software Fund
Manager, LLC, the General Partner of WPG Select Technology Fund, L.P. Mr.
Ben Taylor and Mr. Daniel Vandivort exercise sole voting and dispositive
powers with respect to both the shares held and the shares issuable under
the warrants held by Select Technology Fund LP.
OFFER STATISTICS, EXPECTED TIME TABLE AND PLAN OF DISTRIBUTION
We are registering the ordinary shares offered hereby on behalf of the
selling shareholders. As used herein, "selling shareholders" includes donees,
pledgees, transferees or other successors-in-interest selling shares received
after the date of this prospectus from a named selling shareholder as a gift,
pledge, partnership distribution or other transfer. All costs, expenses and fees
in connection with the registration of the shares offered by this prospectus
will be borne by our company, other than brokerage commissions and similar
selling expenses, if any, attributable to the sale of shares offered hereby
which will be borne by the selling shareholders. Sales of the shares offered
hereby may be effected by selling shareholders from time to time in one or more
types of transactions (which may include block transactions) on the NASDAQ
National Market at prevailing market prices, in the over-the-counter market, in
negotiated transactions, through publicly or privately negotiated put or call
options transactions relating to the shares offered hereby, through short sales
of the shares offered hereby (including the closing of any open short position),
or a combination of such methods of sale, at market prices prevailing at the
time of sale, or at negotiated prices. Such transactions may or may not involve
brokers or dealers. The selling shareholders have advised us that they have not
entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers
18
regarding the sale of their securities, nor is there an underwriter or
coordinating broker acting in connection with the proposed sale of the shares
offered hereby by the selling shareholders.
The selling shareholders may enter into hedging transactions with
regard to the shares offered hereby. In connection with such transactions the
counterparties to such transactions may engage in short sales of the shares
offered hereby or of securities convertible into or exchangeable for such shares
in the course of hedging positions they assume with selling shareholders. The
selling shareholders may also enter into other transactions which require the
delivery of the shares offered by this prospectus, which shares such
counterparties may resell pursuant to this prospectus (as amended or
supplemented, if necessary, to reflect such transaction).
The selling shareholders may effect these transactions by selling the
shares offered hereby directly to purchasers or to or through broker-dealers,
which may act as agents or principals. Such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
selling shareholders and/or the purchasers of the shares offered hereby for whom
such broker-dealers may act as agents or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer might be in excess of
customary brokerage commissions).
The selling shareholders and any broker-dealers that act in connection
with the sale of the shares offered hereby might be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any commissions
received by such broker-dealers and any profit on the disposition of the shares
offered hereby sold by them while acting as principals might be deemed to be
underwriting discounts or commissions under the Securities Act. We have agreed
to indemnify each selling shareholder against certain liabilities, including
liabilities arising under the Securities Act. The selling shareholders may agree
to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of the shares offered hereby against certain
liabilities, including liabilities arising under the Securities Act.
Because selling shareholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act, the selling shareholders
will be subject to the prospectus delivery requirements of the Securities Act.
We have informed the selling shareholders that the anti-manipulative provisions
of Regulation M promulgated under the Exchange Act may apply to their sales in
the market.
Selling shareholders also may resell all or a portion of the shares
offered hereby in open market transactions in reliance upon Rule 144 under the
Securities Act, provided they meet the criteria and conform to the requirements
of Rule 144 or another exemption under the Securities Act.
Upon our being notified by a selling shareholder that any material
arrangement has been entered into with a broker-dealer for the sale of shares
offered hereby through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing:
19
o the name of each such selling shareholder and of the
participating broker-dealer(s);
o the number of shares involved;
o the initial price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
o that such broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus; and
o other facts material to the transaction.
In addition, upon our being notified by a selling shareholder that a
donee, pledgee, transferee or other successor-in-interest intends to sell more
than 500 shares, a supplement to this prospectus will be filed.
EXPENSES ASSOCIATED WITH THE REGISTRATION
We have agreed to bear all expenses relating to the registration of the
ordinary shares registered pursuant to the registration statement of which this
prospectus is a part. We estimate these expenses to be approximately $27,000,
which include the following categories of expenses:
SEC registration fee ................................... $ 341.54
Printing and photocopying fees.......................... 500.00
Legal fees and expenses ................................ 18,000.00
Accounting fees and expenses............................ 7,000.00
Transfer agent and registrar fees and expenses.......... 500.00
Miscellaneous expenses ................................. 658.46
----------
Total Expenses................................. $27,000.00
==========
FOREIGN EXCHANGE CONTROLS AND OTHER LIMITATIONS
Israeli law and regulations do not impose any material foreign exchange
restrictions on non-Israeli holders of our ordinary shares. In May 1998, a new
"general permit" was issued under the Israeli Currency Control Law, 1978, which
removed most of the restrictions that previously existed under such law, and
enabled Israeli citizens to freely invest outside of Israel and freely convert
Israeli currency into non-Israeli currencies.
Non-residents of Israel who purchase our ordinary shares will be able
to convert dividends, if any, thereon, and any amounts payable upon our
dissolution, liquidation or winding up, as well as the proceeds of any sale in
Israel of our ordinary shares to an Israeli resident, into freely repatriable
dollars, at the exchange rate prevailing at the time of conversion, provided
that
20
the Israeli income tax has been withheld (or paid) with respect to such amounts
or an exemption has been obtained.
EXPERTS
Our consolidated financial statements included in our Form 20-F/A for
the year ended December 31, 2003 have been audited by Kost Forer Gabbay &
Kasierer, a Member of Ernst & Young Global, independent registered public
accounting firm, as set forth in their report thereon and incorporated in this
prospectus by reference. Such consolidated financial statements are incorporated
by reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
LEGAL MATTERS
The validity of the 1,018,182 ordinary shares offered hereby will be
passed on for us by Goldfarb, Levy, Eran & Co. of Tel Aviv, Israel.
MATERIAL CHANGES
Except as otherwise described in our Annual Report on Form 20-F/A for
the fiscal year ended December 31, 2003 and in our Reports on Form 6-K filed
under the Exchange Act and incorporated by reference herein, no reportable
material changes have occurred since December 31, 2003.
WHERE YOU CAN BEST FIND MORE INFORMATION; INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
This prospectus is a part of a registration statement on Form F-3,
Registration No. 333-___________, which we filed with the SEC under the
Securities Act of 1933. As permitted by the rules and regulations of the SEC,
this prospectus does not contain all of the information contained in the
registration statement and the exhibits and schedules thereto. As such we make
reference in this prospectus to the registration statement and to the exhibits
and schedules thereto. For further information about us and about the securities
we hereby offer, you should consult the registration statement and the exhibits
and schedules thereto. You should be aware that statements contained in this
prospectus concerning the provisions of any documents filed as an exhibit to the
registration statement or otherwise filed with the SEC are not necessarily
complete, and in each instance reference is made to the copy of such document so
filed. Each such statement is qualified in its entirety by such reference.
We file annual and special reports and other information with the SEC
(Commission File Number 000-20892). These filings contain important information
which does not appear in this prospectus. For further information about us, you
may read and copy these filings at the SEC's public reference room at 450 Fifth
Street, N.W., Washington, D.C. 20549. You may obtain information on the
operation of the public reference room by calling the SEC at 1-800-SEC-0330, and
may obtain copies of our filings from the public reference room by calling (202)
942-8090.
21
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to other documents which we have filed or will file with the SEC.
We are incorporating by reference in this prospectus the documents listed below
and all amendments or supplements we may file to such documents, as well as any
future filings we may make with the SEC on Form 20-F under the Exchange Act
before the time that all of the securities offered by this prospectus have been
sold or de-registered.
o Our Annual Report on Form 20-F/A for the fiscal year ended
December 31, 2003;
o Our Reports on Form 6-K submitted to the SEC on January 23, 2004,
January 29, 2004, February 5, 2004, March 3, 2004, March 9, 2004,
March 11, 2004, March 25, 2004, March 31, 2004, May 11, 2004,
August 10, 2004, August 16, August 17, 2004, August 23, 2004,
August 31, 2004, September 10, 2004, November 19, 2004, December
2, 2004, December 9, 2004, December 15, 2004, January 26, 2005
and February 10, 2005 and our Report on Form 6-K/A submitted to
the SEC on November 17, 2004; and
o The description of our ordinary shares contained in Item 1 of our
registration statement on Form 8-A filed with the SEC on December
17, 1991 under the Exchange Act and any amendment or report filed
for the purpose of updating that description.
In addition, we may incorporate by reference into this prospectus our
reports on Form 6-K filed after the date of this prospectus (and before the time
that all of the securities offered by this prospectus have been sold or
de-registered) if we identify in the report that it is being incorporated by
reference in this prospectus.
Certain statements in and portions of this prospectus update and
replace information in the above listed documents incorporated by reference.
Likewise, statements in or portions of a future document incorporated by
reference in this prospectus may update and replace statements in and portions
of this prospectus or the above listed documents.
We shall provide you without charge, upon your written or oral request,
a copy of any of the documents incorporated by reference in this prospectus,
other than exhibits to such documents which are not specifically incorporated by
reference into such documents. Please direct your written or telephone requests
to Attunity Ltd., Einstein Building, Tirat Carmel 39101, Haifa, Israel, Attn.:
Company Secretary, telephone number +972-4-855-9666. You may also obtain
information about us by visiting our website at http://www.attunity.com.
Information contained in our website is not part of this prospectus.
We are an Israeli company and are a "foreign private issuer" as defined
in Rule 3b-4 under the Securities Exchange Act of 1934. As a result, (1) our
proxy solicitations are not subject to the disclosure and procedural
requirements of Regulation 14A under the Exchange Act, (2) transactions in our
equity securities by our officers and directors are exempt from Section 16 of
the Exchange Act, and (3) until November 4, 2002, we were not required to make,
and did not make, our SEC filings electronically, so that those filings are not
available on the
22
SEC's website. However, since that date, we have been making all required
filings with the SEC electronically, and these filings are available over the
Internet at the SEC's website at http://www.sec.gov.
ENFORCEABILITY OF CIVIL LIABILITIES
Service of process upon us and our directors and officers and the
Israeli experts named in this prospectus, many of whom reside outside the United
States, may be difficult to obtain within the United States. Furthermore, since
a substantial portion of our assets, almost all of our directors, some of the
officers and the Israeli experts are located outside the United States, any
judgment obtained in the United States against us or these individuals or
entities may not be collectible within the United States.
There is doubt as to the enforceability of civil liabilities under the
Securities Act and the Securities Exchange Act in original actions instituted in
Israel. However, subject to certain time limitations and other conditions,
Israeli courts may enforce final judgments of U.S. courts for liquidated amounts
in civil matters, including judgments based upon the civil liability provisions
of those Acts.
We have irrevocably appointed our subsidiary, Attunity Inc. as our
agent to receive service of process in any action against us in the state and
federal courts sitting in the City of New York, Borough of Manhattan arising out
of this offering or any purchase or sale of securities in connection therewith.
We have not given consent for this agent to accept service of process in
connection with any other claim.
23
ATTUNITY LTD
1,018,182 ORDINARY SHARES
----------------------------
PROSPECTUS
----------------------------
You should rely only on the information
incorporated by reference or provided in this
prospectus. We have not authorized anyone to
provide you with different information. We
are not making any offer to sell or buy any
of the securities in any state where the
offer is not permitted. You should not assume
that the information in this prospectus is
accurate as of any date other than the date
that appears below.
2005
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
The Israeli Companies Law provides that an Israeli company cannot
exculpate an office holder from liability with respect to a breach of his duty
of loyalty, but may, if permitted by its articles of association, exculpate in
advance an office holder from his liability to the company, in whole or in part,
with respect to a breach of his duty of care. Our articles of association permit
us to exculpate an officer to the maximum extent permitted by the Israeli
Companies Law.
The Israeli Companies Law provides that a company may, if permitted by
its articles of association, enter into a contract for the insurance of the
liability of any of its office holders with respect to an act performed by him
in his capacity as an office holder, for:
o breach of his duty of care to us or to another person;
o breach of his duty of loyalty to us, provided that the office
holder acted in good faith and had reasonable cause to assume
that his act would not prejudice our interests; or
o a financial liability imposed upon him in favor of another
person.
Our articles of association provide that we may enter into a contract
for the insurance of the liability, in whole in part, of any of our office
holders, to the maximum extent permitted by the Israeli Companies Law.
In addition, in accordance with the Israeli Companies Law, our articles
of association provide that we may, with respect to an act performed by an
office holder in such capacity, (i) undertake in advance to indemnify an office
holder, provided that the undertaking shall be restricted to foreseeable events
and up to a feasible amount, as determined by our board of directors; and (ii)
indemnify an office holder retroactively; against:
o a financial liability imposed on him in favor of another person
by any judgment, including a settlement or an arbitrator's award
approved by a court; and
o reasonable litigation expenses, including attorneys' fees,
expended by such office holder or charged to him by a court, in a
proceeding we instituted against him or instituted on our behalf
or by another person, or in a criminal charge from which he was
acquitted or in which he was convicted of an offense that does
not require proof of criminal intent.
These provisions are specifically limited in their scope by the Israeli
Companies Law, which provides that a company may not indemnify an office holder,
nor exculpate an office holder, nor enter into an insurance contract which would
provide coverage for any monetary liability incurred as a result of certain
improper actions.
Pursuant to the Israeli Companies Law, exculpation of, procurement of
insurance coverage for, and an undertaking to indemnify or indemnification of,
our office holders must be
II-1
approved by our audit committee and our board of directors and, if such office
holder is a director, also by our shareholders.
We have undertaken to indemnify our office holders to the fullest
extent permitted by law. We currently maintain directors and officers liability
insurance with a per claim and aggregate coverage limit of $10 million including
legal costs incurred in Israel.
Item 9. Exhibits
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Memorandum of Association of the Registrant (1)
4.2 Articles of Association of the Registrant, as amended (2)
4.3 Specimen of Ordinary Share Certificate (3)
4.4 Note and Warrant Purchase Agreement dated March 22, 2004,
among the Registrant and the purchasers signatory
thereto (4)
4.5 Registration Rights Agreement dated May 4, 2004, among the
Registrant and the purchasers signatory thereto (5)
4.6 Form of Convertible Promissory Note (6)
4.7 Form of Warrant issued in connection with the Note and
Warrant Purchase Agreement dated March 22, 2004 (7)
4.8 Form of Series A Warrant (8)
4.9 Form of Series B Warrant (9)
4.10 Form of October 2001 Placement Agent's Warrant (10)
4.11 Form of Warrant issued to Gaus Investments Ltd. and R.4.B
Ltd. (11)
4.12 Loan Agreement dated June 3, 2004 among the Registrant and
Plenus Technologies, Ltd. (12)
4.13 Form of Warrant issued to Plenus Technologies Ltd. (12)
4.14 Amendment to Share Purchase Agreement among the
Registrant, Bridges For Islands Ltd., Dov Biran, Dr. Dov
Biran Holdings Ltd. and Poalim Capital Markets and
Investments Ltd. (13)
4.15 Securities Purchase Agreement dated January 24, 2005,
among the Registrant and certain funds affiliated with
Weiss, Peck & Greer
4.16 Registration Rights Agreement dated January 24, 2005,
among the Registrant and certain funds affiliated with
Weiss, Peck & Greer
4.17 Form of Warrant issued to certain funds affiliated with
Weiss, Peck & Greer
4.18 Agreement with One Software Technologies Ltd.
5.1 Opinion of Goldfarb, Levy, Eran & Co. regarding legality
of the securities being registered
23.1 Consent of Kost Forer Gabbay & Kasierer, a member of
Ernst and Young Global
23.2 Consent of Goldfarb, Levy, Eran & Co. (contained in
Exhibit 5.1)
24.1 Power of Attorney (included in the signature page of the
Registration Statement)
----------------
(1) Filed as a Exhibit 3.1 to the Registrant's Registration Statement on
Form F-1, registration number 33-54020, filed on October 30, 1992, and
incorporated herein by reference.
II-2
(2) Filed as Exhibit 3.2 to the Registrant's annual report on Form 20-F for
the year ended December 31, 2000, filed on July 13, 2001, and
incorporated herein by reference.
(3) Filed as a Exhibit 4 to the Amendment No. 2 to the Registrant's
Registration Statement on Form F-1, registration number 33-54020, filed
on December 9, 1992, and incorporated herein by reference.
(4) Incorporated by reference to Item 3 of the Registrant's Report on Form
6-K for the month of March, 2004, filed on March 25, 2004 (SEC File No.
000-20892).
(5) Incorporated by reference to Item 6 of the Registrant's Report on Form
6-K for the month of March, 2004, filed on March 25, 2004 (SEC File No.
000-20892).
(6) Incorporated by reference to Item 5 of the Registrant's Report on Form
6-K for the month of March, 2004, filed on March 25, 2004 (SEC File No.
000-20892).
(7) Incorporated by reference to Item 4 of the Registrant's Report on Form
6-K for the month of March, 2004, filed on March 25, 2004 (SEC File No.
000-20892).
(8) Filed as Exhibit 10.2 to the Registrant's Registration Statement on
Form F-3, registration number 333-14140, filed on November 28, 2001,
and incorporated herein by reference.
(9) Filed as Exhibit 10.3 to the Registrant's Registration Statement on
Form F-3, registration number 333-14140, filed on November 28, 2001,
and incorporated herein by reference.
(10) Filed as Exhibit 10.4 to the Registrant's Registration Statement on
Form F-3, registration number 333-14140, filed on November 28, 2001,
and incorporated herein by reference.
(11) Filed as Exhibit 4.14 to the Registrant's annual report on Form 20-F
for the year ended December 31, 2003, filed on June 30, 2004, and
incorporated herein by reference.
(12) Filed as Exhibit 4.13 to the Registrant's annual report on Form 20-F
for the year ended December 31, 2003, filed on June 30, 2004, and
incorporated herein by reference.
(13) Filed as Exhibit 10.6 to the Registrant's annual report on Form 20-F
for the year ended December 31, 2000, filed on July 16, 2001, and
incorporated herein by reference.
Item 10. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume securities offered (if the total
dollar value of securities offered would not exceed
that which was registered) and any deviation from the
low or high end of the estimated maximum offering
range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price
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set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bone
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration
statement to include any financial statements required by Item
8.A. of Form 20-F at the start of any delayed offering or
throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act
need not be furnished, provided that the Registrant includes
in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph and
other information necessary to ensure that all other
information in the prospectus is at least as current as the
date of those financial statements. Notwithstanding the
foregoing, with respect to registration statements on Form
F-3, a post-effective amendment need not be filed to include
financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of Regulation S-K if such
financial statements and information are contained in periodic
reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Form F-3.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(6) Insofar as indemnification for liabilities arising under the
Securities Act, may be permitted to directors, officers and
controlling persons of the Registrant, pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it complies with all of
the requirements for filing on Form F-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Haifa, Israel, on February 22, 2005.
ATTUNITY LTD
By: /s/Ofer Segev
-------------
Ofer Segev
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, each director and officer whose
signature appears below constitutes and appoints Shimon Alon and Ofer Segev, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution and re-substitution, to sign in any and all capacities any and
all amendments or post-effective amendments to this registration statement on
Form F-3 and to file the same with all exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission, granting such
attorneys-in-fact and agents, and each of them, full power and authority to do
all such other acts and execute all such other documents as they, or any of
them, may deem necessary or desirable in connection with the foregoing, as fully
as the undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys-in-fact and agents, or any of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on February 22, 2005.
Signature Title
--------- -----
/s/Shimon Alon Chairman of the Board of Directors
----------------------
Shimon Alon
/s/Itzhak (Aki) Ratner Chief Executive Officer and Director
----------------------
Itzhak (Aki) Ratner
/s/Ofer Segev Chief Financial Officer
----------------------
Ofer Segev
/s/Dov Biran
---------------------- Director
Dov Biran
/s/Dan Falk Director
----------------------
Dan Falk
---------------------- Director
Roni Ferber
---------------------- Director
Anat Segal
---------------------- Director
Ron Zuckerman
---------------------- Director
Zamir Bar-Zion
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Attunity Inc. Authorized Representative in
the United States
By: /s/Ofer Segev
----------------------
Name: Ofer Segev
Title: Chief Financial Officer
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