UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5 )
Attunity, Inc.
(Name of Issuer)
Common Stock, Ordinary Shares, NIS .1 Each
(Title of Class of Securities)
M15332105
(CUSIP Number)
with a copy to:
Austin W. Marxe Allen B. Levithan, Esq.
153 East 53rd Street Lowenstein Sandler PC
New York, New York 10022 65 Livingston Avenue
Roseland, New Jersey
07068
(973) 597-2424
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 31, 2003
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. ?
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See section
240.13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be ?filed? for the purpose of Section 18 of the Securities
Exchange Act of 1934 (?Act?) or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
Cusip No. M15332105
1. Names of Reporting Persons. I.R.S. Identification Nos. of
above persons (entities only):
Austin W. Marxe and David M. Greenhouse
2. Check the Appropriate Box if a Member of a Group (See
Instructions):
(a) [ ] Not Applicable
(b) [ ]
3. SEC Use Only
4. Source of Funds (See Instructions): 00
5. Check if Disclosure of Legal Proceedings Is Required
Pursuant to Items 2(d) or 2(e):
Not Applicable
6. Citizenship or Place of Organization: United States
Number of 7. Sole Voting Power: 0*
Shares Beneficially 8. Shared Voting Power:
901,505*
Owned by
Each Reporting 9. Sole Dispositive Power: 0*
Person With 10. Shared Dispositive Power:
901,505*
11. Aggregate Amount Beneficially Owned by Each Reporting
Person: 901,505*
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares
(See Instructions): Not Applicable
13. Percent of Class Represented by Amount in Row (11): 5.7%
*
14. Type of Reporting Person (See Instructions): IA, IN
* This is a joint filing by Austin W. Marxe (?Marxe?) and David M.
Greenhouse (?Greenhouse?). Marxe and Greenhouse share sole voting and
investment power over 98,551 warrants owned by Special Situations Cayman
Fund, L.P., 551,078 Warrants owned by Special Situations Fund III, L.P.,
178,225 Warrants owned by Special Situations Private Equity Fund, L.P.,
12,824 Warrants owned by Special Situations Technology Fund, L.P. and
60,827 warrants owned by Special Situations Technology Fund II, L.P. See
Items 2 and 5 of this Schedule 13D for additional information.
Item 1. Security and Issuer.
This schedule related to the common stock and warrants of
Attunity Ltd, Inc. (the ?Issuer?). The Issuer?s principal executive
officers are located at Einstein Building, Tirat, Carmel, Haifa 39101,
Israel
Item 2. Identity and Background.
The persons filing this report are Austin W. Marxe (?Marxe?)
and David M. Greenhouse (?Greenhouse?), who are the controlling
principals of AWM Investment Company, Inc. (?AWM?), the general partner
of and investment adviser to Special Situations Cayman Fund, L.P.
(?Cayman?). AWM also serves as the general partner of MGP Advisers
Limited Partnership (?MGP?), the general partner of and investment
adviser to Special Situations Fund III, L.P. (?SSF3?). Marxe and
Greenhouse are also members of MG Advisers L.L.C. (?MG?), the general
partner of and investment adviser to Special Situations Private Equity
Fund, L.P. (?SSPE?), and members of SST Advisers, L.L.C. (?SSTA?), the
general partner of and investment adviser to Special Situations
Technology Fund, L.P. (?Technology?) and Special Situations Technology
Fund II, L.P. (?TECH2?). (SSF3, Cayman, SSPE, Technology and TECH2
will hereafter be referred to as, the ?Funds?).
The principal office and business address of the Reporting Persons, is
153 East 53rd Street, 55th Floor, New York NY 10022.
The principal business of each Fund is to invest in equity and equity-
related securities and other securities of any kind or nature.
Mr. Marxe and Mr. Greenhouse have never been convicted in
any criminal proceeding (excluding traffic violations or similar
misdemeanors), nor have either of them been a party to any civil
proceeding commenced before a judicial or administrative body of
competent jurisdiction as a result of which he was or is now subject to
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws. Mr.
Marxe and Mr. Greenhouse are citizens of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
Each Fund utilized its own available net assets to purchase
the securities referred to in this Schedule.
Item 4. Purpose of Transaction.
The securities referred to in this Schedule have been
acquired by each of the Funds for investment purposes and not with the
purpose or effect of changing or influencing control of the Issuer.
Each Fund acquired the securities in the ordinary course of business and
is holding the securities for the benefit of its investors.
Item 5. Interest in Securities of the Issuer.
Cayman owns 98,551 warrants, or .7% of the shares
outstanding, SSF3 owns 551,078 Warrants, or 3.6% of the shares
outstanding, SSPE owns 178,225 Warrants, or 1.2% of the outstanding
shares, Technology owns 12,824 Warrants or .1% of the shares outstanding
and TECH2 60,827 warrants or .4% of the shares outstanding. Messrs.
Marxe and Greenhouse share the power to vote and direct the disposition
of all shares/warrants owned by each of, the Funds. Messrs. Marxe and
Greenhouse are deemed to beneficially own a total of 901,505 Warrants or
5.7% of the outstanding shares.
During the month of December the various Funds sold their ownership in
Attunity. Ltd. As outlined in the Purchase Agreement attached hereto as
Exhibit A.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
No contracts, arrangements, understandings or similar
relationships exist with respect to the securities of the Company
between Messrs. Marxe and Greenhouse and any other individual or entity.
Item 7. Material to be Filed as Exhibits.
Joint Filing Agreement.
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
January 8, 2004
/s/_Austin W. Marxe
Austin W. Marxe
/s/_David M. Greenhouse
David M. Greenhouse
Attention: Intentional misstatements or omissions of fact constitute
Federal criminal violations (See 18 U.S.C. 1001).
JOINT FILING AGREEMENT
Austin W. Marxe and David M. Greenhouse hereby agree that the
Schedule 13D to which this agreement is attached is filed on behalf of
each of them.
/s/_Austin W. Marxe
Austin W. Marxe
/s/_David M. Greenhouse
David M. Greenhouse
EXHIBIT A
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of December 23, 2003, by and
among Special Situations Fund III, L.P., Special Situations Cayman
Fund, L.P., Special Situations Technology Fund, L.P., Special
Situations Technology Fund II, L.P. and Special Situations Private
Equity Fund, L.P. (collectively, the "Sellers") and Shimon Alon
and Ron Zuckerman (the ?Representatives?), on behalf of themselves
and Gary Fuhrman, Eli Perry, Peter Luggen and Barossa Finance Ltd.
(collectively with the Representatives, the ?Purchasers?).
W I T N E S S E T H:
WHEREAS, the Sellers desire to sell and transfer to the
Purchasers an aggregate of (i) 2,043,146 shares (the ?Shares?) of
the Ordinary Shares, nominal value NIS 0.1 per share (the
?Ordinary Shares?), of Attunity Ltd. (the ?Company?), (ii) Series
A Warrants (the ?Series A Warrants?) to purchase an aggregate of
2,208,489 Ordinary Shares (the ?Transferred Series A Warrants?),
and (iii) Series B Warrants (the ?Series B Warrants?) to purchase
an aggregate of 736,162 Ordinary Shares (the ?Transferred Series B
Warrants? and, collectively with the Shares and the Series A
Warrants, the ?Securities?), and the Purchasers desire to purchase
the Securities from the Sellers all as more specifically provided
herein; and
WHEREAS, the Representatives have the power to execute and
deliver this Agreement on behalf of all the Purchasers;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and intending to be legally bound, the parties
hereto agree as follows:
ARTICLE I
Purchase and Sale of Securities
Section 1.1. Purchase and Sale of Securities. Upon the
terms and subject to the conditions of this Agreement and on the
basis of the representations, warranties and agreements contained
herein, the Sellers shall sell, assign, transfer, convey and
deliver to the Purchasers the Securities and the Purchasers shall
purchase such Securities from the Sellers for an aggregate cash
purchase price of $3,166,876.30 (the ?Purchase Price?). The
Securities to be purchased by each Purchaser and the portion of
the Purchase Price to be paid by each Purchaser is set forth below
the names of the Purchasers on the signature pages hereof. Upon
consummation of the transactions contemplated hereby, the
Purchasers shall pay the Purchase Price by one or more wire
transfers of immediately available funds to an account or accounts
previously specified by the Sellers. Notwithstanding the sale of
the Securities, the Sellers shall retain all rights they may have
against the Company under the Purchase Agreement, dated October
16, 2001 (the ?Purchase Agreement?), the Registration Rights
Agreement, dated October 24, 2001 (the ?Registration Rights
Agreement?) and the other documents related to their purchase of
the Securities from the Company (collectively, the ?Transaction
Documents?). Without limiting the generality of the foregoing,
the Purchasers acknowledge that the Sellers have obtained a
judgment against the Company in respect of certain liquidated
damages owed to the Sellers pursuant to the terms of the
Registration Rights Agreement (the ?Judgment?). The Purchasers
acknowledge that the purchase of the Securities as contemplated by
this Agreement does not include any right, title or interest in
the Judgment, any claims the Sellers may have against the Company
or any rights of the Sellers accruing under the Registration
Rights Agreement or otherwise, except for any claims that may
arise under the Registration Rights Agreement after the Closing
(as defined below) in respect of the Securities.
Section 1.2. Closing. The consummation of the transactions
contemplated by this Agreement (the ?Closing?) shall take place on
the date hereof or as soon thereafter as practicable at the
offices of the Seller located at 153 E. 53rd Street, 55th floor,
New York, New York 10022, or at such other time and place as the
parties may agree to in writing (the date on which the Closing
takes place, the ?Closing Date?).
Section 1.3. Transactions to be Effected at Closing. At
the Closing:
(a) The Sellers shall deliver to the Purchasers one
or more certificates representing the Shares to be purchased by
them accompanied by duly executed stock powers endorsed in blank.
(b) The Sellers shall deliver to the Company (i) one
of more Series A Warrants and Series B Warrants, together with
completed forms of assignment specifying that the Transferred
Series A Warrants and Transferred Series B Warrants are being
transferred to the Purchasers in the amounts provided above and
(ii) instructions that new warrants representing the Transferred
Series A Warrants and the Transferred Series B Warrants are to be
reissued in the names of the Purchasers in the amounts provided
above and any remaining Series A Warrants and Series B Warrants
are to be reissued to the Sellers.
(c) The Sellers shall deliver to the Company, an
opinion from Sellers' counsel (a copy of which shall be provided
to the Purchasers), addressed to the Company, that the sale of the
Transferred Series A Warrants and the Transferred Series B
Warrants by the Sellers to the Purchasers may be made as
contemplated by this Agreement without registration under the
Securities Act of 1933, as amended (the ?Act?).
(d) The Company shall have delivered to the Sellers
and the Purchasers an acknowledgment that the Securities have been
transferred and an undertaking to resissue the Transferred Series
A Warrants and the Transferred Series B Warrants in the names of
the Purchasers and in the amounts provided above and reissue any
remaining Series A Warrants and Series B Warrants to the Sellers
promptly following the Closing.
(e) The Purchasers shall deliver the Purchase Price
to the Sellers in accordance with Section 1.1.
(f) Each of the parties shall execute and deliver to
the other parties hereto such other documents or instruments as
any party hereto reasonably requests to effect the transactions
contemplated hereby.
Section 1.3. Termination. In the event that the
Closing does not occur on or before December 30, 2003, either the
Sellers or the Purchasers may terminate this Agreement upon
written notice to the other, provided that such failure is not the
result of a breach by the party delivering such notice of its
obligations hereunder. Time shall be of the essence.
ARTICLE II
Representations and Warranties Regarding the Sellers
The Sellers hereby, severally and not jointly, represent and
warrant to the Purchasers as follows:
Section 2.1. Authorization. The Sellers have the limited
partnership power and authority to execute and deliver this
Agreement and to perform their obligations hereunder, all of which
have been duly authorized by all requisite limited partnership
action. This Agreement has been duly authorized, executed and
delivered by the Sellers and constitutes a valid and binding
obligation of the Sellers, enforceable against the Sellers in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles.
Section 2.2. No Consents. Except to the extent set forth
in Section 1.2, no notice to, filing with, or authorization,
registration, consent or approval of any Governmental Authority or
other individual, partnership, corporation, joint stock company,
unincorporated organization or association, trust or joint
venture, or a governmental agency or political subdivision thereof
(each, a ?Person?) is necessary for the execution, delivery or
performance of this Agreement or the consummation of the
transactions contemplated hereby by the Sellers.
Section 2.3. Ownership of the Securities. The Sellers own
the Securities beneficially and of record, free and clear of any
liens, claims or encumbrances (collectively, ?Encumbrances?),
other than those created pursuant to the terms of the Transaction
Documents and those applicable only to the Transferred Series A
Warrants and the Transferred Series B Warrants arising under
applicable federal and state securities laws. Except as set forth
in the Transaction Documents, there are no agreements (i) granting
any option, warrant or right of first refusal with respect to the
Securities to any Person, (ii) restricting the right of the
Sellers to sell the Securities to the Purchasers, or (iii)
restricting any other right of the Sellers with respect to the
Securities. Subject to compliance with the requirements of the
Act and the Transaction Documents, the Sellers have the absolute
and unrestricted right, power and capacity to sell, assign and
transfer the Securities to the Purchasers free and clear of any
Encumbrances (except for Encumbrances created pursuant to the
Transaction Documents and those applicable only to the Transferred
Series A Warrants and the Transferred Series B Warrants arising
under applicable federal and state securities laws). Upon
delivery to the Purchasers of the certificates representing the
Securities in exchange for the Purchase Price, the Purchasers will
acquire good, valid and marketable title to the Securities, free
and clear of any Encumbrances created by the Sellers.
Section 2.4. Affiliate Status. The Sellers are
?affiliates? of the Company as that term is defined in Rule 144
promulgated under the Act.
Section 2.5. Brokers. No Person is or will be entitled to
a broker's, finder's, investment banker's, financial adviser's or
similar fee from the Sellers in connection with this Agreement or
any of the transactions contemplated hereby.
Section 2.6. Absence of Claims. Except for the Judgment
and the matters giving rise thereto, the Sellers are not aware of
any present claims they may have against the Company.
ARTICLE III
Representations and Warranties Regarding the Purchasers
The Purchasers hereby, severally and not jointly, represent
and warrant to the Sellers as follows:
Section 3.1. Authorization. Each Purchaser that is an
entity has the power and authority (corporate, limited liability
company, partnership and other) to execute and deliver this
Agreement and to perform its obligations hereunder, all of which
have been duly authorized by all requisite corporate, limited
liability company or partnership action. Each Purchaser that is
an individual has the power, capacity and authority to execute and
deliver this Agreement and to perform his obligations hereunder,
all of which have been duly authorized by all requisite action.
This Agreement has been duly authorized, executed and delivered by
each Purchaser and constitutes a valid and binding agreement of
such Purchaser, enforceable against such Purchaser in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
Section 3.2. Access to Information. Each Purchaser has
received all information regarding the Company that he or it deems
necessary or advisable to evaluate the risks and merits of an
investment in the Securities. In addition, each Purchaser has had
an opportunity to ask questions of and receive answers from the
Sellers and representatives of the Company concerning the business
of the Company, its condition and prospects (financial and other)
and the terms and conditions of the offering of the Securities.
Section 3.3. Accredited Investor. Each Purchaser is an
"Accredited Investor" as such term is defined in Rule 501 of the
rules and regulations of the Commission promulgated under the
Securities Act.
Section 3.4. Investment Decision. (a) Each Purchaser is
acquiring the Securities for his or its own account for investment
only and not for or with a view to resale or distribution in
violation of the Act. No Purchaser has entered into any contract,
undertaking, agreement or arrangement with any Person to sell,
transfer or pledge to such person or anyone else the Securities in
violation of the Act and no Purchaser has any present plans or
intentions to enter into any such contract, undertaking, agreement
or arrangement; provided, however, that by making the
representations herein, no Purchaser agrees to hold the Securities
for any minimum or other specific term and each Purchaser reserves
the right to dispose of the Securities at any time in accordance
with Federal and state securities laws applicable to such
disposition.
(b) Each Purchaser has the financial ability to bear the
economic risk of losing his or its entire investment in the
Securities, is prepared to bear the economic risk of its
investment and can afford to sustain a complete loss of his or its
investment therein.
(c) Each Purchaser has substantial experience in making
investment decisions of this type and, therefore, has such
knowledge and experience in financial and business matters that he
or it is capable of evaluating the merits and risks of an
investment in the Securities.
(d) Each Purchaser understands that the Shares and the
Ordinary Shares issuable upon the exercise of the Transferred
Series A Warrants and the Transferred Series B Warrants have been
registered pursuant to a registration statement on Form F-3 (the
?Registration Statement?) and that the consummation of the sale of
the Securities as provided herein may require the Company to
prepare and file with the Commission a supplement to the most
current prospectus relating to the Registration Statement or to
prepare and file with the Commission a post-effective amendment to
the Registration Statement which must be declared effective by the
Commission and that any offers and sales of such shares by such
Purchaser cannot occur prior to such time. Each Purchaser further
understands that the Transferred Series A Warrants and the
Transferred Series B Warrants constitute restricted securities
within the meaning of Rule 144 promulgated under the Act, and that
none of such warrants, or any interest therein, may be sold except
pursuant to an effective registration statement under the Act or
in a transaction exempt from registration under the Act, and
understands the meaning and effect of such restriction.
(e) Each Purchaser has considered and, to the extent he or
it believed such discussion was necessary, discussed with his or
its professional legal, tax and financial advisers the suitability
of an investment in the Securities for the Purchaser's particular
tax and financial situation and each Purchaser has determined that
the Securities are a suitable investment for him or it.
Section 3.5. Brokers. No person is or will be entitled to
a broker's, finder's, investment banker's, financial adviser's or
similar fee from any Purchaser in connection with this Agreement
or any of the transactions contemplated hereby.
Section 3.6. Financial Resources. The Purchasers have
presently available to them sufficient cash resources to enable
them to pay the Purchase Price at Closing and to perform the other
obligations of the Purchasers hereunder.
ARTICLE IV
Representations and Warranties Regarding of the Representatives
Section 4.1. Authority and Power. Each Representative has
been appointed by each of the Purchasers (other than the
Representatives) (the ?Other Purchasers?) to act as attorney-in-
fact for each of the Other Purchasers pursuant to a current, valid
and enforceable power of attorney executed by each of the Other
Purchasers. The power of attorney conveyed by the Other
Purchasers to the Representatives includes the power and authority
(expressly, and not by implication) to execute and deliver this
Agreement on behalf of the Other Purchasers. Upon the execution
and delivery of this Agreement by the Representatives on behalf of
the Other Purchasers, this Agreement will constitute a valid and
binding agreement of each Other Purchaser, enforceable against
each Other Purchaser in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
Section 4.2. Absence of Misstatement. To the best
knowledge of each Representative after due inquiry, the
representations and warranties of the Other Purchasers contained
in Article III hereof are true and correct in all respects.
ARTICLE V
Survival, Amendment and Waiver
Section 5.1. Survival. The representations and warranties
contained in this Agreement or any certificate delivered in
connection herewith shall survive the sale of the Securities as
contemplated hereby.
Section 5.2. Amendments. This Agreement (including the
provisions of this Section 5.2) may not be amended or modified
except by an instrument in writing signed on behalf of all of the
parties affected by such amendment or modification.
Section 5.3. Extension; Waiver. The parties hereto may (i)
extend the time for performance of any of the obligations or other
acts of the other parties hereto, (ii) waive any inaccuracies in
the representations and warranties of the other parties hereto
contained herein or in any document delivered pursuant hereto, and
(iii) waive compliance with any of the agreements of the other
parties hereto or satisfaction of any of the conditions to such
party's obligations contained herein. Any agreement on the part
of a party hereto to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of
such party. The failure of a party hereto to assert any of its
rights hereunder shall not constitute a waiver of such rights.
ARTICLE VI
Miscellaneous
Section 6.1. Notices. All notices, requests, claims,
demands, waivers and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered
by hand, when delivered by courier, three days after being
deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested), or when received by facsimile
transmission upon receipt of a confirmed transmission report, as
follows:
If to the Sellers: c/o Special Situations Fund III,
L.P.
153 E. 53rd Street, 55th Floor
New York, New York 10022
Tel: (212) 207-5600
Fax: (212) 207-6515
Attention: Austin Marxe
If to the Purchasers: c/o Ron Zuckerman
9B Hahoresh Street
Kfar Shmaryahu, Israel
Any party hereto, by notice given to the other parties hereto in
accordance with this Section 5.1 may change the address or
facsimile transmission number to which such notice or other
communications are to be sent to such party.
Section 6.2. Expenses. Each of the parties hereto shall
pay its own expenses incident to this Agreement and the
transactions contemplated herein.
Section 6.3. Governing Law; Consent to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of New York, without reference to
the choice of law principles thereof. Each of the parties hereto
irrevocably submits to the exclusive jurisdiction of the courts of
the State of New York located in New York County and the United
States District Court for the Southern District of New York for
the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any
such suit, action or proceeding may be served on each party hereto
anywhere in the world by the same methods as are specified for the
giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court
in any such suit, action or proceeding and to the laying of venue
in such court. Each party hereto irrevocably waives any objection
to the laying of venue of any such suit, action or proceeding
brought in such courts and irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
Section 6.4. Assignment; Successors and Assigns; No Third
Party Rights. This Agreement may not be assigned by operation of
law or otherwise, and any attempted assignment shall be null and
void. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
successors, permitted assigns and legal representatives. This
Agreement shall
be for the sole benefit of the parties to this Agreement and their
respective
heirs, successors, permitted assigns and legal representatives and
is not
intended, nor shall be construed, to give any Person, other than
the parties
hereto and their respective heirs, successors, assigns and legal
represent-
atives, any legal or equitable right, remedy or claim hereunder.
Section 6.5. Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed an original
agreement, but all of which together shall constitute one and the
same instrument.
Section 6.6. Titles and Headings. The titles and headings
in this Agreement are for reference purposes only, and shall not
in any way affect the meaning or interpretation of this Agreement.
Section 6.7. Entire Agreement. This Agreement constitute
the entire agreement among the parties with respect to the matters
covered hereby and thereby and supersede all previous written,
oral or implied understandings among them with respect to such
matters.
Section 6.8. Severability. The invalidity of any portion
hereof shall not affect the validity, force or effect of the
remaining portions hereof. If it is ever held that any
restriction hereunder is too broad to permit enforcement of such
restriction to its fullest extent, such restriction shall be
enforced to the maximum extent permitted by law.
Section 6.9. Interpretation. Unless otherwise indicated to
the contrary herein by the context or use thereof: (i) the words,
"herein," "hereto," "hereof" and words of similar import refer to
this Agreement as a whole and not to any particular Section or
paragraph hereof; (ii) words importing the masculine gender shall
also include the feminine and neutral genders, and vice versa; and
(iii) words importing the singular shall also include the plural,
and vice versa.
Section 6.10. No Strict Construction. Each of the parties
hereto acknowledge that this Agreement has been prepared jointly
by the parties hereto, and shall not be strictly construed against
either party.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first
above written.
SPECIAL SITUATIONS FUND III, L.P.
By: _____________________
Austin Marxe,
General Partner
SPECIAL SITUATIONS CAYMAN FUND, L.P.
By: ___/s/ Austin
Marxe______________________
Austin Marxe,
General Partner
SPECIAL SITUATIONS TECHNOLOGY FUND, L.P.
By: ___/s/ Austin
Marxe______________________
Austin Marxe,
General Partner
SPECIAL SITUATIONS TECHNOLOGY FUND II,
L.P.
By: ___/s/ Austin
Marxe______________________
Austin Marxe,
General Partner
SPECIAL SITUATIONS PRIVATE EQUITY FUND,
L.P.
By: ___/s/ Austin Marxe__________
Austin Marxe,
General Partner
___________________________
Shimon Alon
Purchase Price: $633,375.26
Number of Shares: 408,629
Number of Series A Warrants: 441,698
Number of Series B Warrants: 147,232
___________________________
Ron Zuckerman
Purchase Price: $633,375.26
Number of Shares: 408,629
Number of Series A Warrants: 441,698
Number of Series B Warrants: 147,232
___________________________
Eli Perry, by ____________________ , as
Attorney-in-Fact
Purchase Price: $633,375.26
Number of Shares: 408,629
Number of Series A Warrants: 441,698
Number of Series B Warrants: 147,232
___________________________
Gary Fuhrman, by ________________, as
Attorney-in-Fact
Purchase Price: $380,025.16
Number of Shares: 245,178
Number of Series A Warrants: 265,018
Number of Series B Warrants: 88,341
___________________________
Peter Luggen, by _________________, as
Attorney-in-Fact
Purchase Price: $253,350.10
Number of Shares: 163,452
Number of Series A Warrants: 176,679
Number of Series B Warrants: 58,893
BAROSSA FINANCE LTD.
By: _____________________
Attorney-in-Fact
Purchase Price: $633,375.26
Number of Shares: 408,629
Number of Series A Warrants: 441,698
Number of Series B Warrants: 147,232
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