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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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F O R M 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of December 2004
ATTUNITY LTD
(Name of Registrant)
Einstein Building, Tirat Carmel, Haifa, Israel 39101
(Address of Principal Executive Office)
Indicate by check mark whether the registrant files or will
file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F X Form 40-F __
Indicate by check mark if the registrant is submitting the
Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):__
Indicate by check mark if the registrant is submitting the
Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):__
Indicate by check mark whether by furnishing the information
contained in this Form, the registrant is also thereby furnishing the
information to the Commission pursuant to Rule 12g3-2(b) under the Securities
Exchange Act of 1934.
Yes__ No X
If "Yes" is marked, indicate below the file number assigned to
the registrant in connection with Rule 12g3-2(b): 82-_____________
This Form 6-K is being incorporated by reference into the Company's Form F-3
Registration Statements File Nos. 333-11972 and 333-14140.
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ATTUNITY LTD
6-K Items
1. Attunity Ltd Proxy Statement for Annual General Meeting to be held December
27, 2004.
2. Attunity Ltd Form of Proxy Card.
ITEM 1
ATTUNITY LTD.
November 23, 2004
NOTICE OF 2004 ANNUAL GENERAL MEETING OF SHAREHOLDERS
TO BE HELD ON DECEMBER 27, 2004
To the Shareholders of Attunity Ltd. ("we", "Attunity" or the "Company"):
We cordially invite you to the 2004 Annual General Meeting of Shareholders
(the "Annual General Meeting" or the "Meeting") of Attunity to be held at 10:00
a.m. (Israel time), on Monday, December 27, 2004, at our offices at 8 Aba Even
Boulevard, Herzelia Pituach, Israel, for the following purposes:
(1) To elect five directors;
(2) To elect Mr. Zamir Bar-Zion as outside director;
(3) To clarify and approve compensation to our non-employee directors;
(4) To clarify and approve the grant of options to our non-employee
directors;
(5) To amend our 2001 Employee Stock Option Plan and 2003 Israeli Share
Option Plan to provide for the issuance thereunder of an additional
600,000 ordinary shares;
(6) To ratify and approve terms of indemnification and exculpation of our
directors;
(7) To ratify and approve terms of procurement of directors and officers'
liability insurance policy;
(8) To approve the reappointment of Kost Forer Gabbay & Kasierer, a member
of Ernst & Young Global, as our independent auditors and to authorize
our board of directors to delegate to the audit committee the
authority to fix the said independent auditors' remuneration in
accordance with the volume and nature of their services; and
(9) To review and consider our auditors' report and our consolidated
financial statements for the year ended December 31, 2003.
The Board of Directors recommends that you vote in favor of all of the
proposals, which are described in the attached Proxy Statement.
Shareholders of record at the close of business on November 22, 2004 are
entitled to notice of and to vote at the Meeting. You can vote by proxy either
by mail or in person. If voting by mail, the proxy must be received by our
transfer agent or at our registered office in Israel at least 48 hours prior to
the Meeting to be validly included in the tally of ordinary shares voted at the
meeting. Detailed proxy voting instructions are provided both in the Proxy
Statement and on the enclosed proxy card.
By order of the Board of Directors,
/s/Shimon Alon
SHIMON ALON
Chairman of the Board of Directors
/s/Dror Harel-Elkayam
DROR HAREL-ELKAYAM
VP Finance & Secretary
ATTUNITY LTD.
Einstein Building
Tirat Carmel, Haifa 39101, Israel
--------------------------
PROXY STATEMENT
--------------------------
2004 ANNUAL GENERAL MEETING OF SHAREHOLDERS
This Proxy Statement is being furnished in connection with the solicitation
of proxies on behalf of the Board of Directors of Attunity Ltd. ("we",
"Attunity" or the "Company") to be voted at the 2004 Annual General Meeting of
Shareholders (the "Annual General Meeting" or the "Meeting") and at any
adjournment thereof, pursuant to the accompanying Notice of 2004 Annual General
Meeting of Shareholders. The Meeting will be held at 10:00 a.m. (Israel time),
on Monday, December 27, 2004, at our offices at 8 Aba Even Boulevard, Herzelia
Pituach, Israel. This Proxy Statement and the enclosed proxy card are being
mailed to shareholders on or about November 29, 2004.
Purpose of the Annual General Meeting
It is proposed that at the Meeting resolutions be adopted (1) to elect five
directors; (2) to elect Mr. Zamir Bar-Zion as outside director; (3) to clarify
and approve compensation to our non-employee directors; (4) to clarify and
approve the grant of options to our non-employee directors; (5) to amend our
2001 Employee Stock Option Plan and 2003 Israeli Share Option Plan to provide
for the issuance thereunder of an additional 600,000 ordinary shares; (6) to
ratify and approve terms of indemnification and exculpation of our directors;
(7) to ratify and approve terms of procurement of directors and officers'
liability insurance policy; and (8) to approve the reappointment of Kost Forer
Gabbay & Kasierer, a member of Ernst & Young Global, as our independent auditors
and to authorize our board of directors to delegate to the audit committee the
authority to fix the said independent auditors' remuneration in accordance with
the volume and nature of their services.
In addition, our auditors' report and our consolidated financial statements
for the year ended December 31, 2003 will be reviewed and considered at the
Meeting.
Recommendation of the Board of Directors
Our Board of Directors recommends a vote FOR approval of all the proposals
set forth in this Proxy Statement. Record Date; Outstanding Securities; Quorum
Only holders of record of our ordinary shares, par value (nominal value)
NIS 0.1 per share, as of the close of business on November 22, 2004, or the
record date, are entitled to notice of, and to vote at, the Meeting. As of
November 1, 2004, there were outstanding 15,315,073 ordinary shares. Each
ordinary share entitles the holder to one vote.
According to our Articles of Association, the quorum at the Meeting shall
be two shareholders present in person or by proxy, holding or representing one
third of the total voting rights in the Company. If within half an hour from the
time appointed for the holding of the meeting a quorum is not present, the
meeting shall stand adjourned to the same day in the next week at the same time
and place or any time and hour as the directors shall designate and state in a
notice to the shareholders entitled to vote at the original meeting. This notice
shall serve as notice of such adjourned meeting if no quorum is present at the
original date and time and no further notice of the adjourned meeting will be
given to shareholders.
Voting and Proxies
Shares eligible to be voted and for which a proxy card is properly signed
and returned at least 48 hours prior to the beginning of the Meeting will be
voted as directed. If directions are not given or
directions are not in accordance with the options listed on a signed and
returned proxy card, such shares will be voted in accordance with the
recommendation of the Board of Directors. Unsigned or unreturned proxies,
including those not returned by banks, brokers, or other record holders, will
not be counted for quorum or voting purposes. However, abstentions and broker
non-votes are counted as shares present for determination of a quorum. For
purposes of determining whether a matter is approved by the shareholders,
abstentions and broker non-votes will not be treated as either votes "for" or
"against" the matter.
We will bear the cost of soliciting proxies from our shareholders. Proxies
will be solicited chiefly by mail and may also be solicited personally or by
telephone by our directors, officers and employees; none of whom will receive
additional compensation therefore. However, we may retain an outside
professional to assist in the solicitation of proxies. We will reimburse
brokerage houses and other custodians, nominees and fiduciaries for their
expenses in accordance with the regulations of the Securities and Exchange
Commission ("SEC") concerning the sending of proxies and proxy material to the
beneficial owners of stock.
You may vote by submitting your proxy with voting instructions by mail if
you promptly complete, sign, date and return the accompanying proxy card in
enclosed self-addressed envelope to our transfer agent or to our registered
office in Israel at least 48 hours prior to the Meeting. You may revoke your
proxy at any time prior to the exercise of authority granted in the proxy by
giving a written notice of revocation to our Corporate Secretary, by submitting
a subsequently dated, validly executed proxy, or by voting in person.
Joint holders of shares should take note that, pursuant to Article 40 of
our Articles of Association, the vote of the senior of joint holders of any
share who tenders a vote, whether in person or by proxy, will be accepted to the
exclusion of the vote(s) of the other registered holder(s) of the share, and for
this purpose seniority will be determined by the order in which the names stand
in our register of shareholders.
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information as of November 1, 2004
regarding the beneficial ownership by (i) each of our directors, (ii) all
shareholders known to us to own beneficially more than 5% of our ordinary shares
and (iii) all directors and executive officers as a group:
Number of Ordinary Percentage of
Shares Beneficially Outstanding
Owned (1) Ordinary Shares (2)
------------------- -------------------
Shimon Alon ........................................... 1,278,041(3) 7.9%
Dov Biran.............................................. 882,053(4) 5.8%
Arie Gonen............................................. 1,650,000(5) 10.5%
Dan Falk............................................... 10,000(6) *
Aki Ratner ............................................ 680,453(7) 4.3%
Anat Segal............................................. 10,000(8) *
Ron Zuckerman.......................................... 1,228,041(9) 7.6%
Messrs. Shimon Alon, Aki Ratner, Ron Zuckerman and other
investors represented by them........................ 6,570,654(10)(11) 33.0%
All directors and executive officers as a group
(7 persons).......................................... 7,599,374 38.1%
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* Less than 1%
(1) Beneficial ownership is determined in accordance with the rules of the SEC
and generally includes voting or investment power with respect to
securities. Ordinary shares relating to options currently exercisable or
exercisable within 60 days of the date of this table are deemed outstanding
for computing the percentage of the person holding such securities but are
not deemed outstanding for computing the percentage of any other person.
(2) The percentages shown are based on 15,315,073 ordinary shares issued and
outstanding as of November 1, 2004.
(3) Mr. Alon is the Chairman of our Board. Includes: 406,362 ordinary shares
issuable upon exercise of Series A Warrants, exercisable at an exercise
price of $1.75 per ordinary share; 135,454 ordinary shares issuable upon
exercise of Series B
2
Warrants, exercisable at an exercise price of $2.00 per share; 150,000
ordinary shares issuable upon exercise of May 2004 Warrants, exercisable at
an exercise price of $1.75 per ordinary share; and 210,286 ordinary shares
issuable upon the conversion of five-year convertible debentures, at a
conversion price of $1.75 per ordinary share.
(4) Mr. Biran is a member of our Board. Includes 15,000 ordinary shares
issuable upon exercise of warrants having an exercise price of $1.75 per
ordinary share and 3,333 ordinary shares subject to currently exercisable
options.
(5) Mr. Gonen is our former Chief Executive Officer. Includes 400,000 ordinary
shares subject to currently exercisable options granted under our stock
option plan, exercisable at an exercise price of $1.75 per share. Such
options will expire on September 30, 2009.
(6) Mr. Falk is a member of our Board. These ordinary shares are subject to
currently exercisable options.
(7) Mr. Ratner is our Chief Executive Officer and a member of our Board.
Includes: 176,679 ordinary shares issuable upon exercise of Series A
Warrants, exercisable at an exercise price of $1.75 per ordinary share;
58,893 ordinary shares issuable upon exercise of Series B Warrants,
exercisable at an exercise price of $2.00 per ordinary share; 190,000
ordinary shares issuable upon exercise of May 2004 Warrants, exercisable at
an exercise price of $1.75 per ordinary share; and 91,429 ordinary shares
issuable upon the conversion of five-year convertible debentures, at a
conversion price of $1.75 per ordinary share.
(8) Ms. Segal is a member of our Board. These ordinary shares are subject to
currently exercisable options.
(9) Mr. Zuckerman is a member of our Board. Includes: 406,363 ordinary shares
issuable upon exercise of Series A Warrants, exercisable at an exercise
price of $1.75 per ordinary share; 135,454 ordinary shares issuable upon
exercise of Series B Warrants, exercisable at an exercise price of $2.00
per ordinary share; 100,000 ordinary shares issuable upon exercise of May
2004 Warrants, exercisable at an exercise price of $1.75 per ordinary
share; and 210,286 ordinary shares issuable upon the conversion of
five-year convertible debentures, at a conversion price of $1.75 per
ordinary share.
(10) Includes: 2,208,489 ordinary shares issuable upon exercise of Series A
Warrants, exercisable at an exercise price of $1.75 per ordinary share;
736,162 ordinary shares issuable upon exercise of Series B Warrants,
exercisable at an exercise price of $2.00 per ordinary share; 440,000
ordinary shares issuable upon exercise of May 2004 Warrants, exercisable at
an exercise price of $1.75 per ordinary share; and 1,142,857 ordinary
shares issuable upon the conversion of five-year convertible debentures, at
a conversion price of $1.75 per ordinary share.
(11) Under a certain Stockholders Agreement dated December 23, 2003, as amended
in February 2004, by and among Messrs. Shimon Alon, Ron Zuckerman, Aki
Ratner, and other investors represented by them, among other things,
Messrs. Alon, Zuckerman and Ratner (i) were granted, in any combination of
two signatures of such persons, joint sole discretionary authority over the
disposition of the ordinary shares, the exercise of the warrants and the
conversion of the convertible promissory notes, which were purchased by or
issued to such group of investors pursuant to or in connection with a
certain Purchase Agreement dated December 23, 2003, and the disposition of
the shares underlying such warrants and convertible promissory notes; and
(ii) were appointed, in any combination of two signatures of such persons,
as the group's attorneys in fact, acting jointly, with sole discretionary
power to exercise the voting rights of each of the securities acquired
pursuant to the Purchase Agreement.
*PROPOSALS FOR THE 2004 ANNUAL GENERAL MEETING*
ITEM 1--ELECTION OF FIVE DIRECTORS
(Item 1 on the Proxy Card)
Our directors, other than the outside directors (see in Item 2 below for
further details), are elected at each annual meeting of shareholders. We are
presenting five nominees for election as directors at the Meeting, all such
nominees being current members of our Board of Directors. These nominees were
recommended to our Board of Directors by the Nominating Committee which was
formed in October 2004 to assist the Board in identifying individuals qualified
to become Board members. The members of the Nominating Committee are Ms. Anat
Segal, our outside director, and Mr. Shimon Alon, Chairman of our Board of
Directors.
Each elected nominee will hold office until the next annual general
meeting, unless his office is vacated earlier pursuant to the provisions of our
Articles of Association or applicable law.
The nominees, their present principal occupation or employment, the year in
which each first became a director of Attunity and a brief biography are set
forth below. For details about beneficial ownership of our shares held by any of
these nominees, see above under the caption "Security Ownership of Certain
Beneficial Owners and Management."
Director
Name Principal Occupation or Employment Age Since
---- ---------------------------------- --- -----
Shimon Alon (1) Chairman of our Board of Directors 53 2004
Dov Biran Professor of computers and information systems, 51 2003
Northeastern University
Dan Falk Director of companies 59 2002
Aki Ratner (1) Our Chief Executive Officer 48 2004
Ron Zuckerman (1) Director of companies 47 2004
3
--------------
(1) These directors were initially appointed to our Board of Directors pursuant
to a Note and Warrant Purchase Agreement, dated March 22, 2004, by and
between Attunity and Messrs. Shimon Alon, Ron Zuckerman, Aki Ratner and
other investors represented by them (the "Purchasers"). Under the purchase
agreement, the Purchasers are entitled to designate two members for
election to our Board so long as they continue to beneficially own at least
15% of our issued and outstanding ordinary shares, on an as converted basis
(excluding unexercised warrants), and to designate one member for election
to our Board so long as they continue to beneficially own at least 5% of
our issued and outstanding ordinary shares, on an as converted basis
(excluding unexercised warrants). We are required to use our best efforts
to ensure that such director(s) is/are duly elected to the Board of
Directors and, subject to applicable law and Nasdaq rules and regulations,
to appoint such director(s) to each committee of our Board of Directors.
Shimon Alon was appointed Chairman of our Board of Directors in May 2004.
From September 1997 until June 2003, Mr. Alon served as Chief Executive Officer
of Precise Software Solutions Ltd., or Precise, a leading provider of
application performance management. Since the acquisition of Precise by Veritas
Software Corp., or Veritas, in June 2003, Mr. Alon serves as an executive
advisor to Veritas. Prior to Precise, Mr. Alon held a number of positions at
Scitex Corporation Ltd. and its subsidiaries, including President and Chief
Executive Officer of Scitex America and Managing Director of Scitex Europe. Mr.
Alon holds a degree from the Executive Management Program at the Harvard
Business School.
Dr. Dov Biran was appointed to our Board of Directors in December 2003. Dr.
Biran has been a professor of computers and information systems at Northeastern
University in Boston since September 2001. Prior thereto, Dr. Biran served as
acting Chief Executive Officer, Chief Technology Officer and a director of
Attunity from March 2000 through October 2001. Dr. Biran was the founder and
president of Bridges for Islands, which was acquired by us in February 2000. For
over thirty years he has held various positions in the Information Technology,
or IT, area, including founder and Chief Executive Officer of Optimal
Technologies, a consulting IT firm, Chief Information Officer of Dubek Ltd.,
officer in the computer unit of the Israeli Defense Forces and as an adjunct
professor at Tel Aviv University. His areas of expertise include integration and
Web technologies. Dr. Biran holds a B.Sc. degree in operations research and an
M.B.A. and a Ph.D. degrees in computers and information systems from Tel Aviv
University.
Dan Falk was appointed to our Board of Directors in April 2002. From 1999
until 2000, he served as the President and Chief Operating Officer and then
Chief Executive Officer of Sapiens International Corporation N.V., or Sapiens, a
publicly traded company that provides cost-effective business software
solutions. From 1995 until 1999, Mr. Falk was Executive Vice President and Chief
Financial Officer of Orbotech, a maker of automated optical inspection and
computer aided manufacturing systems. From 2000 until 2003, Mr. Falk served as
the chairman of the board of directors of Atara Technology Ventures and is a
member of the boards of directors of Orbotech, Nice System Ltd, Orad Hi-Tec
Systems Ltd., Netafim Ltd, Visionix Ltd., Ramdor Ltd., Medcon Ltd., Dor
Chemicals Ltd, Poalim Ventures 1 Ltd, Clicksoftware Ltd., Rontech Ltd, Ormat
Industries Ltd and Plastopil Ltd. He holds an M.B.A. degree from the Hebrew
University School of Business.
Itzhak (Aki) Ratner was appointed as our Chief Executive Officer and a
member of our Board of Directors in July 2004. He was the President of Precise
from December 2000 to June 2003 and served as its Vice President of Research and
Development from May 1997 to September 2000. After the acquisition of Precise by
Veritas in June 2003, Mr. Ratner served as Senior Vice President for Integration
at Veritas. Mr. Ratner served in the Israeli Air Force from 1981 to 1996 where
he combined operational responsibilities between flying and numerous software
development management positions. He holds a B.Sc. degree in mathematics and
computer science from Bar-Ilan University.
Ron Zuckerman was appointed to our Board of Directors in May 2004. Mr.
Zuckerman was a founder of Sapiens International Corporation and currently
serves as the Chairman of its board of directors. He was a founder of Precise
and served as the Chairman of its board of directors until it was acquired by
Veritas in June 2003. Mr. Zuckerman is a founder of, and serves as a managing
partner in, Magnum Communications Fund and the First Israeli Turnaround Fund. He
holds a B.Sc. degree in economics from Brandeis University.
We are not aware of any reason why any of the nominees, if elected, would
be unable or unwilling to serve as a director. In the event such nominees should
be unable to serve, the proxies will be voted for the election of such other
person or persons as shall be determined by the persons named in the proxy
4
in accordance with their best judgment. Except as described above, we do not
have any understanding or agreement with respect to the future election of any
of the nominees named.
It is proposed that at the Meeting, the following resolution be adopted
(with respect to each nominee):
"RESOLVED, that each of the nominees named in Item 1 of the Proxy
Statement be, and he or she hereby is, elected as a director of
Attunity to hold office until the next annual general meeting, unless
his or her office is earlier vacated under any relevant provision of
the Articles of Association of Attunity or applicable law."
Shareholders may vote in favor of the election of all the nominees named
above, or may withhold their vote in respect of all or some of such nominees.
The affirmative vote of a majority of the ordinary shares represented at the
Meeting in person or by proxy, and voting thereon, is required to elect each of
the nominees named above as a director.
The Board of Directors recommends a vote FOR the election of all of the
nominees named above.
Executive Compensation
The following table sets forth all compensation we paid with respect to all
of our directors and executive officers as a group for the year ended December
31, 2003:
Salries, fees, Pension, retirement
commissions and bonuses and similar benefits
----------------------- --------------------
All directors and executive officers as a
group, consisting of 7 persons........... $807,032 $95,596
We provide automobiles to our executive officers in Israel pursuant to
standard policies and procedures. Non-employee directors received an annual fee
of $9,000 and an attendance fee of $300 per meeting attended (see the proposal
in Item 3 below).
ITEM 2--ELECTION OF AN OUTSIDE DIRECTOR
(Item 2 on the Proxy Card)
Companies incorporated under the laws of Israel whose shares have been
offered to the public inside or outside of Israel are required by the Israeli
Companies Law, 5759-1999 (the "Companies Law") to appoint at least two outside
directors. To qualify as an outside director, an individual may not have, and
may not have had at any time during the previous two years, any affiliations
with the company or the company's affiliates, as such terms are defined in the
Companies Law. The term "affiliation" includes: an employment relationship; a
business or professional relationship maintained on a regular basis; control;
and service as an office holder. In addition, no individual may serve as an
outside director if the individual's position or other activities create or may
create a conflict of interest with his or her role as an outside director.
The outside directors generally must be elected by the shareholders. The
term of an outside director is three years and may be extended for an additional
three years. Under the Companies Law, each committee of a company's board of
directors empowered with powers of the board of directors is required to include
at least one outside director, except that the audit committee must be comprised
of at least three directors, including all of the outside directors.
Ms. Anat Segal, who was elected as an outside director of the Company in
December 2002 for a three-year term, will continue as an outside director until
our 2005 annual general meeting of shareholders, and thereafter her office may
be renewed for only one additional three-year term.
At the Meeting, shareholders will be asked to elect Mr. Zamir Bar-Zion as
an outside director of the Company for a term of three years. The Company has
received a declaration from such nominee, confirming his qualifications under
the Companies Law to be elected as an outside director of the Company.
A brief biography of the nominee is set forth below:
5
Zamir Bar-Zion (age 47) served as Managing Director for Nessuah Zannex &
Co./USBancorp Piper Jaffray from 1998 through 2001. From 1995 to 1998, Mr.
Bar-Zion served as a private financial consultant. As of May 2004, Mr. Bar-Zion
rejoined Exellence Neshua/Piper Jaffray as the MD Investment Banking in Israel.
Mr. Bar-Zion received his B.Sc. in Computer Science and Finance from New York
Institute of Technology, an M.A. from the Department of Finance from Pace
University, New York, and a PMD from the Program Management Development Program
at Harvard University.
It is proposed that at the Meeting the following resolution be adopted:
"RESOLVED, that Mr. Zamir Bar-Zion be elected as an outside director of
Attunity for a term of three years."
Approval of the above resolution will require the affirmative vote of a
majority of ordinary shares present at the Meeting, in person or by proxy, and
voting on the resolution, provided that (i) the shares voting in favor of such
resolution include at least one-third of the shares voted by shareholders who
are not "controlling shareholders" (as such term is defined in the Companies
Law), or (ii) the total number of shares voted against the resolution by
shareholders who are not controlling shareholders does not exceed one percent of
Attunity's outstanding shares. As of the date hereof, the Company has no
controlling shareholders within the meaning of the Companies Law. Subject to the
Companies Law, in the event that Mr. Zamir Bar-Zion should be unable to serve,
the proxies will be voted for the election of such other person as shall be
determined by the persons named in the proxy in accordance with their best
judgment to be suitable to serve as an outside director.
The Board of Directors recommends a vote FOR the election of the nominee
named above as an outside director.
Outside Director Continuing in Office
Anat Segal, who was elected as an outside director of the Company in
December 2002 for a three-year term, continues to serve the Company as an
outside director. A brief biography of Ms. Segal follows.
Anat Segal has acted as an independent advisor providing investment-banking
services and financial and strategic consulting to, mainly, high-tech companies
since January 2000. She is also a Managing Partner in Xenia Ventures, a
technology incubator based in Kiryat Gat, Israel and a director of Orad Hi-Tec
Systems Ltd., Marathon Venture Capital Fund Ltd. and Prior-Tech Ltd.. From 1998
to early 2000, she has served as the Managing Director and Head of Corporate
Finance of Tamir Fishman & Co., which was then an Israeli strategic affiliate of
Hambrecht and Quist. From 1996 until 1998, she served as a Vice President of
Investment Banking, Robertson Stephens & Co/Evergreen. From 1990 until 1996, Ms.
Segal held senior positions with Bank Hapoalim Group and Poalim Capital Markets.
Ms. Segal holds a B.A. degree in Economics and Management, an M.B.A. degree and
an L.L.B. degree from Tel Aviv University.
ITEM 3--COMPENSATION TO OUR NON-EMPLOYEE DIRECTORS
(Item 3 on the Proxy Card)
The Companies Law provides that outside directors are entitled to receive
compensation and reimbursement of expenses pursuant to regulations promulgated
under the Companies Law. Pursuant to such regulations, companies whose shares
are traded on an exchange outside Israel, such as Attunity, where the foreign
(non-Israeli) law imposes additional obligations on outside directors, more
burdensome than those imposed under Israeli law, may pay their outside directors
a maximum annual directors fee of NIS 100,000 per annum and a maximum attendance
fee of NIS 3,000 per meeting, in both instances linked twice yearly to the
Israeli Consumer Price Index (CPI). These fees currently equate to approximately
$22,600 and $680, respectively. By comparison, we pay our non-employee directors
(including outside directors) an annual fee of $9,000 and an attendance fee of
$300 per meeting attended.
Pursuant to the Companies Law, the terms of compensation for directors of a
public company, such as Attunity, require approval of the audit committee, board
of directors and shareholders, in that order. In the past year, several key
changes to the Company's management team were effected, including the
6
addition of three new directors, two of whom are non-employee directors. To
avoid any doubt about the authority of the Company to pay annual and attendance
fees to such non-employee directors, it is proposed to adopt a clarifying
resolution at the Meeting that authorizes the Company to pay our non-employee
directors, including outside directors, who may serve the Company from time to
time, an annual directors' fee of $9,000 and an attendance fee of $300 per
meeting attended, in compliance with the regulations under the Companies Law
regarding outside directors. Our Audit Committee and Board of Directors have
approved such fees, subject to the approval of the shareholders at the Meeting.
It is therefore proposed that at the Meeting the following resolution be
adopted:
"RESOLVED, that the Company is authorized to pay an annual directors fee of
$9,000 and an attendance fee of $300 per meeting attended, in accordance
with applicable law and regulations, in respect of all persons who shall,
from time to time, serve as non-employee directors of the Company,
including outside directors."
The affirmative vote of a majority of the ordinary shares represented at
the Meeting in person or by proxy and voting thereon is required to adopt the
foregoing resolution.
The Board of Directors recommends a vote FOR approval of the foregoing
resolution.
ITEM 4--GRANT OF OPTIONS TO OUR NON-EMPLOYEE DIRECTORS
(Item 4 on the Proxy Card)
Pursuant to the Companies Law, the terms of compensation for directors of a
public company, such as Attunity, including grants of options, require approval
of the audit committee, board of directors and shareholders, in that order.
In December 2002 and December 2003, our shareholders approved the grant of
options under our stock option plans to purchase 10,000 ordinary shares to each
of Anat Segal, Dan Falk and Dov Biran, each of whom is a non-employee director,
as well as two other persons who served as non-employee directors at that time,
for each year for which such director holds office, at an exercise price equal
to the fair market value of the ordinary shares on the date of the grant (the
"Previous Grants").
In November 2004, our Audit Committee and Board of Directors adopted a
policy, according to which each of our non-employee directors, who may serve the
Company from time to time, including our continuing outside director, will be
granted options, as follows (the "Proposed Grants"):
o grant of options under our stock option plans to purchase 10,000
ordinary shares for each year for which such non-employee director
holds office, beginning with a grant of options to purchase 10,000
ordinary shares which will be made on the date of the Meeting (and
thereafter, grants of options to purchase additional 10,000 ordinary
shares which will be made on the date of each annual meeting in which
such director is elected or reelected);
o an exercise price of all options equal to the fair market value of the
ordinary shares on the date of the grant (i.e., beginning with a grant
of options to purchase 10,000 ordinary shares with an exercise price
equal to the fair market value of the ordinary shares on the date of
the Meeting);
o the options will become fully vested within 12 months after the date
of the grant; and
o any outstanding options that are not vested at the time of termination
of the director's service with the Company will be accelerated and
become fully vested and exercisable for a period of 180 days
thereafter, unless termination was due to the director's resignation
or for one of the causes set forth in the Companies Law.
Since the Proxy Statements furnished to the Company's shareholders with
respect to the Previous Grants did not address the acceleration of vesting upon
termination of a director's service (as described in the last bullet above), we
also propose to clarify and approve that such acceleration will also apply to
the options under the Previous Grants, in the same manner as the options under
the Proposed Grants.
Pursuant to regulations promulgated under the Companies Law, we
generally may not change the terms of compensation of an outside director during
his or her term, except when a new outside director
7
is elected and only if such revised terms are for the benefit of the continuing
outside director. Accordingly, the following resolution, with respect to Anat
Segal, our continuing outside director, is subject to the election of Mr. Zamir
Bar-Zion (see Item 2 above).
It is therefore proposed that at the Meeting the following resolution be
adopted:
"RESOLVED, that the Proposed Grants of options to each of our non-employee
directors, who may serve the Company from time to time, and the proposed
acceleration of the vesting schedule of the options under Previous Grants,
as described in the Company's Proxy Statement, are ratified and approved in
all respects."
The affirmative vote of a majority of the ordinary shares represented at
the Meeting in person or by proxy and voting thereon is required to adopt the
foregoing resolution.
The Board of Directors recommends a vote FOR approval of the foregoing
resolution.
ITEM 5--APPROVAL OF AN AMENDMENT TO OUR 2001 EMPLOYEE STOCK OPTION
PLAN AND 2003 ISRAELI SHARE OPTION PLAN TO PROVIDE FOR THE ISSUANCE
THEREUNDER OF AN ADDITIONAL 600,000 ORDINARY SHARES
(Item 5 on the Proxy Card)
Our 2001 Employee Stock Option Plan, or the 2001 Plan, which we adopted in
2001, authorized the grant of options to purchase up to 1,000,000 of our
ordinary shares (subject to certain adjustments). In 2003, the 2001 Plan was
amended, such that the number of ordinary shares reserved for issuance under the
2001 Plan was increased by 1,000,000 ordinary shares, subsequent to which up to
2,000,000 ordinary shares were issuable under the 2001 Plan.
Our 2003 Israeli Share Option Plan, or the 2003 Plan, which we adopted in
2003, authorized the grant of options to purchase up to 1,500,000 of our
ordinary shares (subject to certain adjustments). The adoption of the 2003 Plan
did not increase the total number of ordinary shares reserved for issuance under
our stock option plans, but rather ordinary shares available for grant under our
other outstanding stock option plans may be rolled over into the 2003 Plan
according to a resolution of our Board of Directors from time to time.
In August 2004, our shareholders approved an amendment to our 2001 Plan and
2003 Plan to provide for the issuance thereunder of an additional 600,000
ordinary shares, such shares to be allocated between the two plans as determined
by our Board of Directors from time to time.
As of the date of this Proxy Statement, approximately 500,000 ordinary
shares only are available for future option grants under the 2001 Plan and 2003
Plan.
In light of the foregoing, our Board of Directors believes that it is
necessary to increase the number of ordinary shares issuable under the 2001 Plan
and the 2003 Plan by an additional 600,000 ordinary shares, so we continue to
have the means to grant options under the two plans in order to attract and
retain talented personnel.
Accordingly, at the Meeting, shareholders will be asked to amend the 2001
Plan and the 2003 Plan to provide for the issuance thereunder of an additional
600,000 ordinary shares, such shares to be allocated between the two plans as
determined by our Board of Directors from time to time.
It is therefore proposed that at the Meeting the following resolution be
adopted:
"RESOLVED, to amend the Company's 2001 Employee Stock Option Plan and 2003
Israeli Share Option Plan to provide for the issuance thereunder of an
additional 600,000 ordinary shares, such shares to be allocated between the
two plans as determined by the Board of Directors from time to time."
The affirmative vote of a majority of the ordinary shares represented at
the Meeting in person or by proxy and voting thereon is required to adopt said
resolution.
8
The Board of Directors recommends a vote FOR approval of the foregoing
resolution.
ITEM 6--INDEMNIFICATION AND EXCULPATION OF DIRECTORS
(Item 6 on the Proxy Card)
Subject to certain qualifications, the Companies Law permits a company, if
its articles of association so provide, to indemnify an "office holder" for acts
or omissions committed in his or her capacity as an office holder of the company
for:
o a financial obligation imposed upon him or her by a court judgment,
including a settlement or an arbitrator's award approved by court; and
o reasonable litigation expenses, including attorney's fees, expended by an
office holder or charged to him or her by a court: (a) in a proceeding
instituted against him or her by or on behalf of the company or by another
person, (b) in a criminal charge from which he or she was acquitted, or (c)
in criminal proceedings in which he or she was convicted of a crime which
does not require proof of criminal intent.
The Companies Law provides that a company's articles of association may
permit the company to indemnify an office holder following a determination to
this effect made by the company after the occurrence of the event in respect of
which the office holder will be indemnified. It also permits the company to
undertake in advance to indemnify an office holder, provided that the
undertaking is limited to types of occurrences, which, in the opinion of the
company's board of directors, are, at the time of giving the undertaking,
foreseeable and to an amount the board of directors has determined is reasonable
in the circumstances.
The Companies Law also 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 or her liability to the company, in whole or in part,
with respect to a breach of his duty of care.
The term "office holder" of a company is defined under the Companies Law to
include any person who, either formally or in substance, serves as a director,
general manager or chief executive officer, or other executive officer who
reports directly to the general manager or chief executive officer of a company.
At the extraordinary general meeting of our shareholders in September 2000,
our Articles of Association were amended to, among other things, contain
provisions consistent with the provisions of the Companies Law relating to
indemnification and exculpation of our office holders. At that meeting, our
shareholders also approved that we may enter into indemnification agreements, in
the form presented at that meeting, together with any changes thereto determined
by the Chief Executive Officer of the Company (or in the case of his
indemnification agreement, as determined by the Chief Financial Officer of the
Company) to be desirable. The form of indemnification agreement that was
approved by our shareholders includes a provision under which we will exculpate
the office holder from liability for damages sustained by a breach of duty of
care to our company. The Proxy Statement furnished to the Company's shareholders
with respect to the foregoing meeting mentioned only the Company's directors and
did not mention explicitly the Company's directors who may serve from time to
time in the future. To avoid any doubt about the authority of the Company to
prospectively undertake to indemnify and exculpate any of its directors who may
serve the Company from time to time, it is proposed to adopt a clarifying
resolution at the Meeting. In addition, we have made certain modifications to
our form of indemnification agreement, a copy of which is attached as Annex A
hereto. The changes are primarily designed to (1) clarify that the aggregate
liability of the Company for all persons shall not exceed an amount equal to $10
million (as was approved by the shareholders in September 2000), (2) specify the
actions or events that would entitle the office holder to receive
indemnification, and (3) clarify the procedures to be taken by the office holder
and the Company upon the occurrence of an indemnifiable event.
Under the Companies Law, an undertaking to indemnify or indemnification of,
and exculpation of, an office holder requires the approval of the audit
committee and board of directors and if such office
9
holder is a director, also the shareholders, in that order. Our Audit Committee
and Board of Directors approved the following resolution, subject to shareholder
approval.
It is therefore proposed that at the Meeting the following resolution will
be adopted:
"RESOLVED, to approve, ratify and clarify the Company's authority to
indemnify and exculpate each director of the Company, who may serve the
Company from time to time, to the fullest extent permitted by law, and to
provide him or her with an Indemnification Agreement, substantially in the
form attached as Annex A to the Company's Proxy Statement, and any
amendments and supplements thereto that do not materially increase the
obligations of the Company and that are approved by the Audit Committee and
Board of Directors of the Company; provided that the total amount of
indemnification that the Company undertakes towards all persons whom it has
resolved to indemnify for the matters set forth in the Indemnification
Agreement, jointly and in the aggregate, shall not exceed an amount equal
to $10 million."
The affirmative vote of a majority of the ordinary shares represented at
the Meeting in person or by proxy and voting thereon is required to adopt the
foregoing resolution.
The Board of Directors recommends a vote FOR approval of the foregoing
resolution.
ITEM 7--DIRECTORS AND OFFICERS LIABILITY INSURANCE
(Item 7 on the Proxy Card)
The 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 a 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 or in part, of any of our office
holders, to the maximum extent permitted by the Companies Law. We currently
maintain directors and officers' liability insurance with a per claim and
aggregate coverage limit of $10 million, including legal costs incurred. The
insurance policy will expire in July 2005, and, following approval of our Audit
Committee and Board of Directors, we intend to enter into a new directors and
officers' liability insurance policy with a maximum annual premium of $500,000,
effective from July 2005 through July 2006 (the "2005 Policy Period"). Our Audit
Committee and Board of Directors also approved, subject to shareholder approval,
any renewal, extension of such insurance policy and/or purchase of a new policy
for all directors and officers of the Company; provided that any such renewal,
extension or purchase is conditioned upon (i) further approval by the Audit
Committee and the Board of Directors and (ii) the annual premium will not exceed
$500,000.
Under the Companies Law, the procurement of insurance coverage for office
holders requires the approval of the audit committee and board of directors, and
if such office holder is a director, also the shareholders, in that order. Our
Audit Committee and Board of Directors approved the following resolution,
subject to shareholder approval.
It is therefore proposed that at the Meeting the following resolutions be
adopted:
"RESOLVED, that the procurement by the Company of directors and officers'
liability insurance policy for the 2005 Policy Period in respect of all
directors of the Company, who may serve the Company from time to time, is
hereby approved and ratified; and that the management of the Company be,
and it is hereby is, authorized and directed to negotiate and execute in
the name and on behalf of the Company, contracts for such insurance, upon
the terms and conditions so negotiated; provided that the annual premium
shall not exceed $500,000; and
RESOLVED FURTHER, that any renewal, extension and/or purchase of a new
directors and officers' liability insurance policy in respect of all
directors of the Company, who may serve the Company from
10
time to time, is hereby approved; and that the management of the Company
be, and it is hereby is, authorized and directed to negotiate and execute
in the name and on behalf of the Company, contracts for such renewal,
extension and/or purchase of insurance, upon the terms and conditions so
negotiated; provided that any such renewal, extension or purchase is
conditioned upon (i) further approval by the Audit Committee and the Board
of Directors and (ii) the annual premium will not be more than $500,000; it
being hereby clarified that no further approval of the shareholders of the
Company will be required in connection with any renewal and/or extension
and/or the purchase of any such insurance policy in accordance with these
resolutions."
The affirmative vote of a majority of the ordinary shares represented at
the Meeting in person or by proxy and voting thereon is required to adopt said
resolution.
The Board of Directors recommends a vote FOR approval of the foregoing
resolution.
ITEM 8--RE-APPOINTMENT OF INDEPENDENT AUDITORS
(Item 8 on the Proxy Card)
Our Board of Directors first appointed Kost Forer Gabbay & Kasierer,
Certified Public Accountants (Israel), a member of Ernst & Young Global, as our
auditors in 1992 and has reappointed the firm as our auditors since such time.
At the Meeting, the shareholders will be asked to approve the
re-appointment of Kost Forer Gabbay & Kasierer as our independent auditors,
pursuant to the recommendation of our Audit Committee and Board of Directors.
Kost Forer Gabbay & Kasierer, and other accountants affiliated with Ernst &
Young Global, also serve as auditors of our subsidiaries. They have no
relationship with us or with any of our affiliates except as auditors and, to a
limited extent, as tax consultants and providers of some other audit related
services. Our Audit Committee and Board of Directors believe that the
independence of Kost Forer Gabbay & Kasierer is not affected by such limited
non-audit function and that, as a result of their familiarity with our
operations and their reputation in the auditing field, they have the necessary
personnel and professional qualifications to act as our auditors.
At the Meeting, the shareholders will also be asked to authorize our Board
of Directors to delegate to our Audit Committee the authority to fix the
compensation of our independent auditors. With respect to the year 2003, we paid
Kost Forer Gabbay & Kasierer approximately $173,000 for auditing and
audit-related services and approximately $18,500 for tax related services.
It is therefore proposed that at the Meeting the following resolution be
adopted:
"RESOLVED, that the reappointment of the Kost Forer Gabbay & Kasierer as
independent auditors of the Company until immediately following the next
annual general meeting of shareholders be, and it hereby is, approved and
that the Board of Directors be, and it hereby is, authorized to delegate to
the Audit Committee of the Board the authority to fix the remuneration of
said independent auditors in accordance with the volume and nature of their
services."
The affirmative vote of a majority of the ordinary shares represented at
the Meeting in person or by proxy and voting thereon is required to adopt the
foregoing resolution.
The Board of Directors recommends a vote FOR approval of the foregoing
resolution.
DISCUSSION OF AUDITORS' REPORT AND FINANCIAL STATEMENTS
At the Annual General Meeting, the Auditors' Report and our audited
Consolidated Financial Statements for the fiscal year ended December 31, 2003,
will be presented for discussion, as required by the Companies Law. The
foregoing Auditors' Report and Consolidated Financial Statements, as well as our
annual report on Form 20-F/A for the year ended December 31, 2003 (filed with
the SEC on November 22, 2004), may be viewed on our website - www.attunity.com
or through the EDGAR website of the SEC at www.sec.gov.
None of the Auditors' Report, the Consolidated Financial Statements, the
Form 20-F/A and the contents of our website form part of the proxy solicitation
material.
This item will not involve a vote of the shareholders.
11
OTHER MATTERS
The Board of Directors does not intend to bring any matters before the
Meeting other than those specifically set forth in the Notice of 2004 Annual
Meeting of Shareholders and no other matter shall be on the agenda of the
Meeting.
By order of the Board of Directors,
/s/Shimon Alon
SHIMON ALON
Chairman of the Board of Directors
/s/Dror Harel-Elkayam
DROR HAREL-ELKAYAM
VP Finance & Secretary
November 23, 2004
12
Annex A (Form of Indemnification Letter)
ATTUNITY LTD.
Einstein Building,
Tiral Hacarmel 39101
Israel
To: Date: _______________
______________
______________
Re: Indemnification Agreement
-------------------------
Dear _____________:
WHEREAS, it is in the best interest of Attunity Ltd. (the "Company") to retain
and attract as directors, officers and/or employees the most capable persons
available, and such persons are becoming more reluctant to serve publicly-held
companies unless they are provided with adequate protection thorough insurance,
indemnification and exculpation in connection with such service; and
WHEREAS, you are a director, officer and/or employee of the Company and/or its
subsidiaries, and in order to enhance your continued service to the Company in
an effective manner, the Company desires to provide hereunder for your
indemnification and exculpation to the fullest extent permitted by law;
NOW, THEREFORE, in consideration of your continuing to serve the Company, the
parties agree as follows:
1. Indemnification. The Company shall indemnify you, to the maximum extent
permitted by applicable law, for the following events ("Indemnifiable
Events"):
1.1 any financial obligation imposed on you in favor of a third party by a
court judgment, including a settlement or an arbitrator's award
approved by court, for an act or omission performed by you in your
capacity as a director, officer and/or employee of the Company and/or
its subsidiaries; and
1.2 all reasonable legal expenses, including attorneys' fees, expended by
or charged to you or adjudicated against you, by a court in a
proceeding commenced against you by the Company or on its behalf or by
another person, or in any criminal proceedings in which you were
acquitted, or in any criminal proceedings which does not require proof
of intent (in which you were convicted), all in respect of actions or
omissions performed in your capacity as a director, officer and/or
employee of the Company and/or its subsidiaries.
The above indemnification will also apply to any action taken by you in your
capacity as a director, officer and/or employee of any other company controlled,
directly or indirectly, by the Company (a "Subsidiary") or in your capacity as a
director, or observer at board of directors' meetings, of a company not
controlled by the Company but where your appointment as such a director or
observer results from the Company's holdings in such company or is made at the
Company's request ("Affiliate").
The Company will indemnify you even if at the relevant time you are no longer a
director, officer or employee of the Company or of a Subsidiary or a director or
board observer of an Affiliate, provided that the obligations are in respect of
actions taken by you while you were a director, officer, employee and/or board
observer, as aforesaid, and in such capacity, including if taken prior to the
date hereof.
2. Scope of Indemnity. The Company will not indemnify you for any amount you
may be obligated to pay in respect of:
2.1 a breach of your duty of loyalty, except for a breach while acting in
good faith and having reasonable cause to assume that such act would
not prejudice the interests of the Company;
2.2 a willful breach of the duty of care or reckless disregard for the
circumstances or the consequences of a breach of the duty of care;
2.3 an act with intent to unlawfully realize personal gain; or
2.4 a fine or penalty imposed upon you for an offense.
In addition, the indemnification will be limited to the matters described
in paragraph 1.1 above insofar as they result from your actions in the
matters set forth in Exhibit A hereto or in connection therewith.
3. Advancements. If so requested by you, the Company shall advance an amount
(or amounts) to cover your reasonable legal expenses, including attorneys'
fees, with respect to which you are entitled to be indemnified under
paragraph 1 above. These advancements will be made available to you on the
date on which such amounts are first payable by you, and with respect to
items referred to in paragraph 1.2 above, even prior to a court decision.
The obligation of the Company to make such advances shall be subject to the
condition that, if, when and to the extent that it is determined that you
were not entitled to be so indemnified under applicable law, you hereby
agree to promptly reimburse the Company for all such amounts theretofore
advanced, except that advances given to cover legal expenses in criminal
proceedings will be repaid by you to the Company if you are found guilty of
a crime, which requires criminal intent. As part of the aforementioned
undertaking, the Company will make available to you any security or
guarantee that you may be required to post in accordance with an interim
decision given by a court or an arbitrator, including for the purpose of
substituting liens imposed on your assets.
4. Limitiation of Indemnity. The total amount of indemnification that the
Company undertakes towards all persons whom it has been resolved to
indemnify for the matters and in the circumstances described herein,
jointly and in the aggregate, shall not exceed an amount equal to 10
Million US Dollars, according to the representative rate of exchange, or
any other official rate of exchange that may replace it, at the time of
indebtedness or such greater sum as shall, from time to time, be approved
by the shareholders of the Company, following approval (where required
under the Israeli Companies Law, 5759-1999) by the Audit Committee and
Board of Directors of the Company.
5. Subrogation. The Company will be entitled to any amount collected from a
third party in connection with liabilities indemnified hereunder. The
provisions of paragraph 1 above to the contrary notwithstanding, no payment
hereunder shall be made to you in connection with an Indemnifiable Event
for which payment is actually paid to you under a valid and collectible
insurance policy or under a valid and enforceable indemnity clause or
agreement, except in respect of any excess beyond the payment under such
insurance, clause or agreement, within the limits set forth in Section 4
above.
NOTIFICATION AND DEFENSE OF CLAIM
---------------------------------
6. Notice and Defense of Indemnifiable Events. In all indemnifiable
circumstances indemnification will be subject to the following:
6.1 You shall promptly notify the Company of any legal proceedings
initiated against you and of all possible or threatened legal
proceedings without delay following your first becoming aware thereof,
and you deliver to the Company, or to such person as it shall advise
you, without delay all documents you receive in connection with these
proceedings. Similarly, you must advise the Company on an ongoing and
current basis concerning all events that you suspect may give rise to
the initiation of legal proceedings against you.
6.2 Other than with respect to proceedings that have been initiated
against you by the Company or in its name, the Company shall be
entitled to undertake the conduct of your defense in respect of such
legal proceedings and/or to hand over the conduct thereof to any
attorney which the Company may choose for that purpose, except to an
attorney who is not, upon reasonable grounds, acceptable to you. The
Company and/or the attorney as aforesaid shall be entitled, within the
context of the conduct as aforesaid, to conclude such proceedings, all
as it shall see fit, including by way of settlement. At the request of
the Company, you shall execute all documents required to enable the
Company and/or its attorney as aforesaid to conduct your defense in
your name, and to represent you in all matters connected therewith, in
accordance with the aforesaid.
For the avoidance of doubt, in the case of criminal proceedings the
Company and/or the attorneys as aforesaid will not have the right to
plead guilty in your name or to agree to a plea-bargain in your name
without your consent. Furthermore, in a civil proceeding (whether
before a court or as a part of a compromise arrangement), the Company
and/or its attorneys will not have the right to admit to any
occurrences that are not indemnifiable pursuant to this Agreement
and/or pursuant to law, without your consent. However, the aforesaid
will not prevent the Company and/or its attorneys as aforesaid, with
the approval of the Company, to come to a financial arrangement with a
plaintiff in a civil proceeding without your consent so long as such
arrangement will not be an admittance of an occurrence not
indemnifiable pursuant to Agreement and/or pursuant to law.
6.3 You will fully cooperate with the Company and/or any attorney as
aforesaid in every reasonable way as may be required of you within the
context of their conduct of such legal proceedings, including but not
limited to the execution of power(s) of attorney and other documents,
provided that the Company shall cover all costs incidental thereto
such that you will not be required to pay the same or to finance the
same yourself.
6.4 If, in accordance to paragraph 6.2, the Company has taken upon itself
the conduct of your defense, the Company will have no liability or
obligation pursuant to this Agreement or the above resolutions to
indemnify you for any legal expenses, including any legal fees, that
you may expend in connection with your defense, except to which the
Company in its absolute discretion shall agree.
6.5 The Company will have no liability or obligation pursuant to this
Agreement or the above resolutions to indemnify you for any amount
expended by you pursuant to any compromise or settlement agreement
reached in any suit, demand or other proceeding as aforesaid without
the Company's consent to such compromise or settlement.
6.6 If required by law, the Company's authorized organs will consider the
request for indemnification and the amount thereof and will determine
if you are entitled to indemnification and the amount thereof.
EXCULPATION
-----------
7. Subject to the provisions of the Companies Law, the Company will exculpate
you from liability, or any party of a liability, for damages sustained by a
breach of duty of care to the Company.
GOVERNING LAW
-------------
10. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Israel.
Miscellaneous
-------------
11. This Agreement is being issued to you pursuant to the resolutions adopted
by the Audit Committee and the Board of Directors of the Company on
November 22, 2004, and by the shareholders of the Company on December 27,
2004.
12. For the avoidance of doubt, it is hereby clarified that nothing contained
in this Agreement derogate from the Company's right to indemnify you post
factum for any amounts which you may be obligated to pay as set forth in
paragraph 1 above without the limitations set forth in paragraph 4 above.
13. If any undertaking included in this Agreement is held invalid or
unenforceable, such invalidity or unenforceability will not affect any of
the other undertakings that will remain in full force and effect.
Furthermore, if such invalid or unenforceable undertaking may be modified
or amended so as to be valid and enforceable as a matter of law, such
undertakings will be deemed to have been modified or amended, and any
competent court or arbitrator are hereby authorized to modify or amend such
undertaking, so as to be valid and enforceable to the maximum extent
permitted by law.
14. This Agreement cancels any preceding letter of indemnification that may
have been issued to you.
Kindly sign and return the enclosed copy of this letter to acknowledge your
agreement to the contents thereof.
Very truly yours,
ATTUNITY LTD.
By: ___________________
Title: ___________________
ACKNOWLEDGMENT OF AGREEMENT:
__________________________________
Date: _________________________
EXHIBIT A
---------
1. The offering of securities by the Company, a Subsidiary, or an Affiliate
and/or by a shareholder thereof to the public and/or to private investors
or the offer by the Company, a Subsidiary, and/or an Affiliate to purchase
securities from the public and/or from private investors or other holders
pursuant to a prospectus, agreements, notices, reports, tenders and/or
other proceedings;
2. Occurrences resulting from the status of the Company and/or a Subsidiary
and/or an Affiliate as a public company, and/or from the fact that the
securities thereof were offered to the public and/or are traded on a stock
exchange, whether in Israel or abroad;
3. Occurrences in connection with investments the Company and/or Subsidiaries
and/or Affiliates make in other corporations whether before and/or after
the investment is made, entering into the transaction, the execution,
development and monitoring thereof, including actions taken by you in the
name of the Company and/or a Subsidiary and/or an Affiliate as a director,
officer, employee and/or board observer of the corporation the subject of
the transaction and the like;
4. The sale, purchase and holding of negotiable securities or other
investments for or in the name of the Company, a Subsidiary and/or an
Affiliate;
5. Actions in connection with the merger of the Company, a Subsidiary and/or
an Affiliate with or into another entity;
6. Actions in connection with the sale of the operations and/or business, or
part thereof, of the Company, a Subsidiary and/or an Affiliate;
7. Without derogating from the generality of the above, actions in connection
with the purchase or sale of companies, legal entities or assets, and the
division or consolidation thereof;
8. Actions taken in connection with labor relations and/or employment matters
in the Company, Subsidiaries and/or Affiliates and trade relations of the
Company, Subsidiaries and/or Affiliates, including with employees,
independent contractors, customers, suppliers and various service
providers;
9. Actions in connection with the testing of products developed by the
Company, Subsidiaries and/or Affiliates or in connection with the
distribution, sale, license or use of such products;
10. Actions taken in connection with the intellectual property of the Company,
Subsidiaries and/or Affiliates, and its protection, including the
registration or assertion of rights to intellectual property and the
defense of claims related to intellectual property;
11. Actions taken pursuant to or in accordance with the policies and procedures
of the Company, Subsidiaries and/or Affiliates, whether such policies and
procedures are published or not.
ITEM 2
ATTUNITY LTD
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Aki Ratner and Dror Elkayam, or either of
them, attorneys or attorney of the undersigned, for and in the names(s) of the
undersigned, with power of substitution and revocation in each to vote any and
all ordinary shares, par value NIS 0.1 per share, of Attunity Ltd (the
"Company"), which the undersigned would be entitled to vote as fully as the
undersigned could if personally present at the Annual General Meeting of
Shareholders of the Company to be held on December 27, 2004 at 10:00 a.m. at the
offices of the Company, 8 Aba Even Boulevard, Herzelia Pituach, Israel, and at
any adjournment or adjournments thereof, hereby revoking any prior proxies to
vote said shares, upon the following item of business more fully described in
the notice of and proxy statement for such Annual General Meeting of
Shareholders (receipt of which is hereby acknowledged):
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS SPECIFIED. IF NO DIRECTION IS
GIVEN, THIS PROXY WILL BE VOTED FOR (i) THE ELECTION OF THE NOMINEES FOR
DIRECTOR IN ITEM 1 AND (ii) PROPOSALS 2 THROUGH 8.
(Continued and to be signed on the reverse side)
ANNUAL GENERAL MEETING OF SHAREHOLDERS OF
ATTUNITY LTD
December 27, 2004
Please date, sign and mail
your proxy card in the
envelope provided as soon
as possible.
Please detach along perforated line and mail in the envelope provided.
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ELECTION OF THE
NOMINEES FOR DIRECTOR IN ITEM 1 AND PROPOSALS 2 THROUGH 8.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE [X]
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1. The election of five directors.
[ ] FOR ALL NOMINEES
[ ] WITHHOLD AUTHORITY FOR ALL NOMINEES
[ ] FOR ALL EXCEPT (See instructions below)
NOMINEES:
( ) Shimon Alon
( ) Dov Biran
( ) Dan Falk
( ) Aki Ratner
( ) Ron Zuckerman
INSTRUCTION: To withhold authority to vote for any individual nominee(s),
------------ mark "FOR ALL EXCEPT" and fill in the circle next to each
nominee you wish to withhold, as shown here: (X)
2. To elect Mr. Zamir Bar-Zion as outside director.
[ ]FOR [ ]AGAINST [ ]ABSTAIN
3. To clarify and approve compensation for the Company's non-employee
directors.
[ ]FOR [ ]AGAINST [ ]ABSTAIN
4. To clarify and approve the grant of options to the Company's non-employee
directors.
[ ]FOR [ ]AGAINST [ ]ABSTAIN
5. To amend the Company's 2001 Employee Stock Option Plan and 2003 Israeli
Share Option Plan to provide for the issuance thereunder of an additional
600,000 ordinary shares.
[ ]FOR [ ]AGAINST [ ]ABSTAIN
6. To ratify and approve terms of indemnification and exculpation of the
Company's directors.
[ ]FOR [ ]AGAINST [ ]ABSTAIN
7. To ratify and approve terms of procurement of directors and officers'
liability insurance policy.
[ ]FOR [ ]AGAINST [ ]ABSTAIN
8. To approve the reappointment of Kost Forer Gabbay & Kasierer, a member of
Ernst & Young Global, as the Company's independent auditors and to
authorize the board of directors to delegate to the audit committee the
authority to fix the said independent auditors' remuneration in accordance
with the volume and nature of their services.
[ ]FOR [ ]AGAINST [ ]ABSTAIN
To change the address on your account, please check the box at right and
indicate your new address in the address space above. Please note that
changes to the registered name(s) on the account may not be submitted via
this method. [ ]
Signature of Shareholder__________ Date _____
Signature of Shareholder__________ Date _____
Note:Please sign exactly as your name or names appear on this Proxy. When shares
are held jointly, each holder should sign. When signing as executor,
administrator, attorney, trustee or guardian, please give full title as
such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If signer is a
partnership, please sign in partnership name by authorized person.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ATTUNITY LTD
(Registrant)
By: /s/Ofer Segev
-------------
Ofer Segev
Chief Financial Officer
Date: December 2, 2004