Exhibit 4.6
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER. SUBJECT TO COMPLIANCE
WITH THE REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY
BE PLEDGED OR HYPOTHECATED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER LOAN SECURED BY THIS WARRANT OR ANY OF THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT.
WARRANT
TO PURCHASE ORDINARY SHARES
OF
MER TELEMANAGEMENT SOLUTIONS LTD.
Issue Date: August 3, 2005 Warrant No. __
THIS CERTIFIES that Avi Ziv or any subsequent holder hereof (the
"Holder"), has the right to purchase from MER TELEMANAGEMENT SOLUTIONS LTD., a
company organized under the laws of the State of Israel, with headquarters
located at 00 Xxxxxx Xxxxxx, Xx'xxxxx 00000, Xxxxxx (the "Company"), up to
37,000 fully paid and nonassessable Ordinary Shares of the Company, nominal
value NIS 0.01 (the "Ordinary Shares"), subject to adjustment as provided
herein, at a price per share equal to the Exercise Price (as defined below), at
any time and from time to time beginning on February 3, 2006 (the "Commencement
Date") and ending at 6:00 p.m., eastern time, on the date that is three and 1/2
years following the Commencement Date (or, if such date is not a Business Day,
on the Business Day immediately following such date) (the "Expiration Date").
1. Exercise.
(a) Right to Exercise; Exercise Price. The Holder shall have the right
to exercise this Warrant at any time and from time to time during the period
beginning on the Commencement Date and ending on the Expiration Date as to all
or any part of the Ordinary Shares covered hereby (the "Warrant Shares"). The
"Exercise Price" for each Warrant Share purchased by the Holder upon the
exercise of this Warrant shall be equal to US$4.00, subject to adjustment for
the events specified in Section 5 below.
(b) Exercise Notice. In order to exercise this Warrant, the Holder
shall send by facsimile transmission, at any time prior to 6:00 p.m., eastern
time, on the Business Day on which the Holder wishes to effect such exercise
(the "Exercise Date"), to the Company (with a copy to the Company's counsel) an
executed copy of the notice of exercise in the form attached hereto as Exhibit A
(the "Exercise Notice"), and shall forward to the Company the Exercise Price by
wire transfer to an account designated by the Company. The Exercise Notice shall
also state the name or names (with address) in which the Ordinary Shares that
are issuable on such exercise shall be issued. The Holder shall not be required
to deliver the original Warrant in order to effect an exercise hereunder.
Execution and delivery of an Exercise Notice with respect to less than all of
the Warrant Shares shall have the same effect as cancellation of the original
Warrant and issuance of a new Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
(c) Holder of Record. The Holder shall, for all purposes, be deemed to
have become the holder of record of the Warrant Shares specified in an Exercise
Notice on the Exercise Date specified therein, irrespective of the date of
delivery of such Warrant Shares. Except as specifically provided herein, nothing
in this Warrant shall be construed as conferring upon the Holder hereof any
rights as a shareholder of the Company prior to the Exercise Date.
(d) Cancellation of Warrant. This Warrant shall be canceled upon its
exercise and, if this Warrant is exercised in part, the Company shall, at the
time that it delivers Warrant Shares to the Holder pursuant to such exercise as
provided herein, issue a new warrant, and deliver to the Holder a certificate
representing such new warrant, with terms identical in all respects to this
Warrant (except that such new warrant shall be exercisable into the number of
Ordinary Shares with respect to which this Warrant shall remain unexercised);
provided, however, that the Holder shall be entitled to exercise all or any
portion of such new warrant at any time following the time at which this Warrant
is exercised, regardless of whether the Company has actually issued such new
warrant or delivered to the Holder a certificate therefor.
2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an
Exercise Notice pursuant to Section 1 above, the Company shall, no later than
the close of business on the later to occur of (i) the third (3rd) Business Day
following the Exercise Date set forth in such Exercise Notice and (ii) such
later date on which the Company shall have received payment of the Exercise
Price (such date being referred to as a "Delivery Date"), issue and deliver or
caused to be delivered to the Holder the number of Warrant Shares as shall be
determined as provided herein. In the event that the Company's transfer agent
("Transfer Agent") participates in the
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Depository Trust Company ("DTC") Fast Automated Securities Transfer program
("FAST"), and except as otherwise provided in the next following sentence of
this Section 2, the Company shall effect delivery of Warrant Shares to the
Holder by crediting the account of the Holder or its nominee at DTC (as
specified in the applicable Exercise Notice) with the number of Warrant Shares
required to be delivered, no later than the close of business on such Delivery
Date. In the event that the Transfer Agent is not a participant in FAST, or if
the Warrant Shares are not otherwise eligible for delivery through FAST, or if
the Holder so specifies in an Exercise Notice or otherwise in writing on or
before the Exercise Date, the Company shall effect delivery of Warrant Shares by
delivering to the Holder or its nominee physical certificates representing such
Warrant Shares, no later than the close of business on such Delivery Date.
3. Failure to Deliver Warrant Shares.
(a) In the event that the Company fails for any reason to deliver to
the Holder the number of Warrant Shares specified in the applicable Exercise
Notice on or before the Delivery Date therefor (an "Exercise Default"), the
Company shall pay to the Holder payments ("Exercise Default Payments") in the
amount of (i) (N/365) multiplied by (ii) the aggregate Exercise Price of the
Warrant Shares which are the subject of such Exercise Default multiplied by
(iii) the lower of fifteen percent (15%) and the maximum rate permitted by
applicable law (the "Default Interest Rate"), where "N" equals the number of
days elapsed between the original Delivery Date of such Warrant Shares and the
date on which all of such Warrant Shares are issued and delivered to the Holder.
Cash amounts payable under this Section 3(a) shall be paid on or before the
fifth (5th) Business Day of each calendar month following the calendar month in
which such amount has accrued.
(b) In the event of an Exercise Default, the Holder may, upon written
notice to the Company (an "Exercise Default Notice"), regain on the date of such
notice the rights of the Holder under the exercised portion of this Warrant that
is the subject of such Exercise Default (it being understood that the Holder may
deliver an Exercise Notice at any time following delivery of an Exercise Default
Notice to the Company). In the event that the Holder delivers an Exercise
Default Notice, the Holder shall retain all of the Holder's rights and remedies
with respect to the Company's failure to deliver such Warrant Shares prior to
delivery of such Notice (including without limitation the right to receive the
cash payments specified in Section 3(a) above).
(c) The Holder's rights and remedies hereunder are cumulative, and no
right or remedy is exclusive of any other. In addition to the amounts specified
herein, the Holder shall have the right to pursue all other remedies available
to it at law or in equity (including, without limitation, a decree of specific
performance and/or injunctive relief). Nothing herein shall limit the Holder's
right to pursue actual damages for the Company's failure to issue and deliver
Warrant Shares on the applicable Delivery Date.
4 Payment of the Exercise Price. The Holder shall pay the Exercise
Price through a cash exercise by delivering to the Company immediately available
funds.
5. Anti-Dilution Adjustments; Distributions; Other Events. The Exercise
Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to
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time as provided in this Section 5. In the event that any adjustment of the
Exercise Price required herein results in a fraction of a cent, the Exercise
Price shall be rounded up or down to the nearest one hundredth of a cent.
(a) Subdivision or Combination of Ordinary Shares. If the Company, at
any time after the Issue Date, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) the outstanding
Ordinary Shares into a greater number of shares, then effective upon the close
of business on the record date for effecting such subdivision, the Exercise
Price in effect immediately prior to such subdivision will be proportionately
reduced. If the Company, at any time after the Issue Date, combines (by reverse
stock split, recapitalization, reorganization, reclassification or otherwise)
the outstanding Ordinary Shares into a smaller number of shares, then, effective
upon the close of business on the record date for effecting such combination,
the Exercise Price in effect immediately prior to such combination will be
proportionally increased.
(b) Distributions. If the Company shall declare or make any
distribution of cash or any other assets (or rights to acquire such assets) to
holders of Ordinary Shares, as a partial liquidating dividend or otherwise,
including without limitation any dividend or distribution to the Company's
shareholders in shares (or rights to acquire shares) of capital stock of a
subsidiary) (a "Distribution"), the Company shall deliver written notice of such
Distribution (a "Distribution Notice") to the Holder at least thirty (30) days
prior to the earlier to occur of (i) the record date for determining
shareholders entitled to such Distribution and (ii) the date on which such
Distribution is made (the earlier of such dates being referred to herein as the
"Determination Date"). In the Distribution Notice to a Holder, the Company must
indicate whether the Company has elected (A) to deliver to such Holder the same
amount and type of assets being distributed in such Distribution as though the
Holder were a holder on the Determination Date therefor of a number of Ordinary
Shares into which this Warrant is exercisable as of such Determination Date
(such number of shares to be determined at the Exercise Price then in effect and
without giving effect to any limitations on such exercise) or (B) to reduce the
Exercise Price as of the Determination Date therefor by an amount equal to the
fair market value of the assets to be distributed divided by the number of
Ordinary Shares as to which such Distribution is to be made, such fair market
value to be reasonably determined in good faith by the independent members of
the Company's Board of Directors. If the Company does not notify the Holders of
its election pursuant to the preceding sentence on or prior to the Determination
Date, the Company shall be deemed to have elected clause (A) of the preceding
sentence.
(c) Major Transactions. In the event of a merger, consolidation,
business combination, tender offer, exchange of shares, recapitalization,
reorganization, redemption or other similar event, as a result of which Ordinary
Shares shall be changed into the same or a different number of shares of the
same or another class or classes of stock or securities or other assets of the
Company or another entity or the Company shall sell all or substantially all of
its assets (each of the foregoing being a "Major Transaction"), the Company will
give the Holder at least thirty (30) days written notice prior to the earlier of
(I) the closing or effectiveness of such Major Transaction and (II) the record
date for the receipt of such shares of stock or securities or other assets, and:
(i) the Holder shall be permitted to exercise this Warrant in whole or in part
at any time prior to the record date for the receipt of such shares of stock or
securities or other
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assets and shall be entitled to receive, for each share of Ordinary Shares
issuable to the Holder for such exercise, the same per share consideration
payable to the other holders of Ordinary Shares in connection with such Major
Transaction, and (ii) if and to the extent that the Holder retains any portion
of this Warrant following such record date, the Company will cause the surviving
or, in the event of a sale of assets, purchasing entity, as a condition
precedent to such Major Transaction, to assume the obligations of the Company
under this Warrant, with such adjustments to the Exercise Price and the
securities covered hereby as may be necessary in order to preserve the economic
benefits of this Warrant to the Holder.
(d) Adjustments; Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 5,
the Holder of this Warrant shall, upon exercise of this Warrant, become entitled
to receive securities or assets (other than Ordinary Shares) then, wherever
appropriate, all references herein to Ordinary Shares shall be deemed to refer
to and include such shares and/or other securities or assets; and thereafter the
number of such shares and/or other securities or assets shall be subject to
adjustment from time to time in a manner and upon terms as nearly equivalent as
practicable to the provisions of this Section 5. Any adjustment made pursuant to
this Section 5 that results in a decrease in the Exercise Price shall also
effect a proportional increase in the number of Ordinary Shares into which this
Warrant is exercisable.
6. Fractional Interests.
No fractional shares or scrip representing fractional shares
shall be issuable upon the exercise of this Warrant, but on exercise of this
Warrant, the Holder hereof may purchase only a whole number of Ordinary Shares.
If, on exercise of this Warrant, the Holder hereof would be entitled to a
fractional share of Ordinary Shares or a right to acquire a fractional share of
Ordinary Shares, the Company shall, in lieu of issuing any such fractional
share, pay to the Holder an amount in cash equal to the product resulting from
multiplying such fraction by the Market Price as of the Exercise Date.
7. Transfer of this Warrant.
The Holder may sell, transfer, assign, pledge or otherwise
dispose of this Warrant, in whole or in part, as long as such sale or other
disposition is made pursuant to an effective registration statement or an
exemption from the registration requirements of the Securities Act. Upon such
transfer or other disposition, the Holder shall deliver this Warrant to the
Company together with a written notice to the Company, substantially in the form
of the Transfer Notice attached hereto as Exhibit B (the "Transfer Notice"),
indicating the person or persons to whom this Warrant shall be transferred and,
if less than all of this Warrant is transferred, the number of Warrant Shares to
be covered by the part of this Warrant to be transferred to each such person.
Within three (3) Business Days of receiving a Transfer Notice and the original
of this Warrant, the Company shall deliver to the each transferee designated by
the Holder a Warrant or Warrants of like tenor and terms for the appropriate
number of Warrant Shares and, if less than all this Warrant is transferred,
shall deliver to the Holder a Warrant for the remaining number of Warrant
Shares.
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8. Benefits of this Warrant.
This Warrant shall be for the sole and exclusive benefit of
the Holder of this Warrant and nothing in this Warrant shall be construed to
confer upon any person other than the Holder of this Warrant any legal or
equitable right, remedy or claim hereunder.
9. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity reasonably satisfactory to the Company, and upon
surrender of this Warrant, if mutilated, the Company shall execute and deliver a
new Warrant of like tenor and date.
10. Notice or Demands.
Any notice, demand or request required or permitted to be
given by the Company or the Holder pursuant to the terms of this Warrant shall
be in writing and shall be deemed delivered (i) when delivered personally or by
verifiable facsimile transmission, unless such delivery is made on a day that is
not a Business Day, in which case such delivery will be deemed to be made on the
next succeeding Business Day, (ii) on the next Business Day after timely
delivery to an overnight courier and (iii) on the Business Day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
If to the Company:
Mer Telemanagement Solutions Ltd.
00 Xxxxxx Xxxxxx
Xx'xxxxx 00000, Xxxxxx
Tel: 000-000-0-000-0000
Fax: 000-000-0-000-0000
Att: Shlomi Hagai
With copies (which shall not constitute notice) to:
Xxxx Mer, Law Office
124 Ibn Xxxxxx Xxxxxx
Xxx Xxxx 00000, Xxxxxx
Tel: 000-000-0-000-0000
Fax: 000-000-0-000-0000
Att: Xxxx Mer, Esq.
and
Xxxxxx Xxxxxxx & Xxxxxxx LLP
0 Xxxx Xxxxxx
0
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
and if to the Holder, to such address as shall be designated by the Holder in
writing to the Company.
11. Applicable Law.
This Warrant is issued under and shall for all purposes be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within the State of
New York.
12. Amendments.
No amendment, modification or other change to, or waiver of
any provision of, this Warrant may be made unless such amendment, modification
or change is set forth in writing and is signed by the Company and the Holder.
13. Entire Agreement.
This Warrant constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and thereof. There are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein and therein. This Warrant supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
14. Headings.
The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Company has duly executed and delivered this
Warrant as of the Issue Date.
MER TELEMANAGEMENT SOLUTIONS LTD.
By: __________________________
Name: __________________________
Title: __________________________
EXHIBIT A to WARRANT
--------------------
EXERCISE NOTICE
---------------
The undersigned Holder hereby irrevocably exercises the right to
purchase _______ of the Ordinary Shares ("Warrant Shares") of MER TELEMANAGEMENT
SOLUTIONS LTD. evidenced by the attached Warrant (the "Warrant"). Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Warrant.
1. Warrant Exercise. The Holder intends that payment of the Exercise
Price shall be made with respect to _________________ Warrant Shares.
2. Payment of Exercise Price. The Holder shall pay the sum of
US$________________ to the Company in accordance with the terms of the Warrant.
Date: ______________________
____________________________________
Name of Registered Holder
By: _______________________________
Name:
Title:
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EXHIBIT B to WARRANT
--------------------
TRANSFER NOTICE
---------------
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant hereby sells,
assigns and transfers unto the person or persons named below the right to
purchase ________ shares of the Ordinary Shares of MER TELEMANAGEMENT SOLUTIONS
LTD. evidenced by the attached Warrant.
Date: ______________________
________________________________
Name of Registered Holder
By: _______________________________
Name:
Title:
Transferee Name and Address:
_____________________________
_____________________________
_____________________________
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