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 JANUARY 2008
MER TELEMANAGEMENT SOLUTIONS LTD.
(Name of Registrant)
22 Zarhin Street, Ra'anana 43662, Israel
(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 REGISTRANT'S FORM F-3
REGISTRATION STATEMENT FILE NO. 333-128225 AND FORM S-8 REGISTRATION STATEMENTS
FILE NOS. 333-12014 AND 333-123321.
MER Telemanagement Solutions Ltd.
6-K Items
1. Press Release re MTS Announces $750,000 Private Equity Financing dated
January 28, 2008.
2. Form of Purchase Agreement dated as of January 24, 2008, by and
between Mer Telemanagement Solutions Ltd. and Lior Salansky.
ITEM 1
PRESS RELEASE Source: MTS-MER Telemanagement Solutions Ltd
MTS ANNOUNCES $750,000 PRIVATE EQUITY FINANCING
Monday January 28, 12:57 pm ET
RA'ANANA, Israel, January 28 /PRNewswire-FirstCall/ -- MTS - Mer Telemanagement
Solutions Ltd. (Nasdaq Capital Market: MTSL), a global provider of business
support systems (BSS) for comprehensive telecommunication management and
customer care & billing (CC&B) solutions, today announced a private placement of
750,000 of its ordinary shares at a price of $1.00 per share, pursuant to a
definitive agreement dated as of January 24, 2008 with Mr. Lior Salansky. The
closing will take place within two business days following the Company's
compliance with the notification provisions of The NASDAQ Stock Market.
Following the closing, Mr. Salansky will join the Company as its President.
Mr. Salansky brings with him a wealth of knowledge and over 15 years of
experience in the CC&B market and the call accounting business. Mr. Salansky was
a founder of MIND C.T.I. Ltd. and served in a number of positions, including
Co-CEO, Vice President of Business Development and R&D Manager. He also served
as a director of MIND CTI from its inception until 2004. Mr. Salansky holds a
B.Sc. in Computer Science from the Technion, Israel Institute of Technology and
an M.B.A. from Tel Aviv University.
"We are pleased to welcome Lior to the MTS team," said Eytan Bar, chief
executive officer. "We are confident that Lior's experience and managerial
skills will be a valuable asset to MTS's management team and will assist the
company to expand its business. In his new role as the company's President, Lior
will be responsible for business development, marketing and managing our Israeli
operations. Lior's investment in our company reflects his confidence in our
technology and business model and strengthens the company's cash and working
capital position," added Mr. Bar.
About MTS
Mer Telemanagement Solutions Ltd. (MTS) is a worldwide provider of innovative
solutions for comprehensive telecommunications expense management (TEM) used by
enterprises, and for business support systems (BSS) used by information and
telecommunication service providers.
Since 1984, MTS Telecommunications' expense management solutions have been used
by thousands of enterprises and organizations to ensure that their
telecommunication services are acquired, provisioned, and invoiced correctly. In
addition, the MTS's Application Suite has provided customers with a unified view
of telecommunication usage, proactive budget control, personal call management,
employee cost awareness and more.
MTS's solutions for Information and Telecommunication Service Providers are used
worldwide by wireless and wireline service providers for interconnect billing,
partner revenue management and for charging and invoicing their customers. MTS
has pre-configured solutions to support emerging carriers of focused solutions
(e.g. IPTV, VoIP, MVNO) to rapidly install a full-featured and scaleable
solution. MTS's unique technology reduces integration risks and lessens revenue
leakage by using the very same system to manage retail and wholesale business as
well as supporting multiple business units. Total cost of ownership (TCO) is
reduced by providing web-based customer self-care and provisioning.
Headquartered in Israel, MTS markets its solutions through wholly owned
subsidiaries in the United States, Hong Kong, The Netherlands, and Brazil, as
well as through OEM partnerships with Siemens, Phillips, NEC and other vendors.
MTS shares are traded on the NASDAQ Capital Market (symbol MTSL). For more
information please visit the MTS web site: http://www.mtsint.com.
Certain matters discussed in this news release are forward-looking statements
that involve a number of risks and uncertainties including, but not limited to,
risks in product development plans and schedules, rapid technological change,
changes and delays in product approval and introduction, customer acceptance of
new products, the impact of competitive products and pricing, market acceptance,
the lengthy sales cycle, proprietary rights of the Company and its competitors,
risk of operations in Israel, government regulations, dependence on third
parties to manufacture products, general economic conditions and other risk
factors detailed in the Company's filings with the United States Securities and
Exchange Commission.
Contact:
Alon Mualem
CFO
Tel: +972-9-762-1733
Email: Alon.Mualem@mtsint.com
ITEM 2
EXECUTION COPY
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PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT (this "Agreement") is made as of the 24th day of
January, 2008, by and between Mer Telemanagement Solutions Ltd. (the "Company"),
a company organized under the laws of the State of Israel, with its principal
offices at 22 Zarhin Street, Ra'anana 43662, Israel, and Lior Salansky of 3 Odem
Street, Caesarea 30889, Israel (the "Purchaser"). The Company and the Purchaser
also intend to enter into an employment agreement pursuant to which the
Purchaser will agree to serve as the President of the Company.
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company has authorized the issuance and sale
of 750,000 ordinary shares, par value NIS 0.01 per share, of the Company (the
"Shares").
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing, the
Company shall, subject to the terms of this Agreement, issue and sell to the
Purchaser and the Purchaser shall buy from the Company, upon the terms and
conditions hereinafter set forth, the Shares at a price per share of $1, for the
aggregate purchase price of $750,000 (the "Aggregate Purchase Price").
SECTION 3. Delivery of the Shares at the Closing.
3.1 The Closing. The completion of the purchase and sale of the
Shares (the "Closing") shall be at the offices of the Company.
3.2 The Closing. (a) The Closing shall occur, as agreed to by
the parties hereto, within two Business Days following the Company's compliance
with the notification provisions of The NASDAQ Stock Market.
(b) The Purchaser shall deliver, in immediately available funds, the
Aggregate Purchase Price, as set forth in Section 2, for the Shares being
purchased, by wire transfer to an account designated by the Company and the
Company shall deliver to the Purchaser one or more stock certificates for the
Shares, registered in the name of the Purchaser, or in such nominee name(s) as
designated by the Purchaser in writing, and bearing an appropriate legend
referring to the fact that the Shares were sold in reliance upon the exemption
from registration under the Securities Act of 1933, as amended (the "Securities
Act"), provided by Regulation S and Section 4(2) thereof and Rule 506
promulgated thereunder.
(c) The Company's obligation to complete the purchase and sale of the
Shares and deliver such stock certificate(s) to the Purchaser at the Closing
shall be subject to the following conditions, any one or more of which may be
waived by the Company:
(i) receipt by the Company of same-day funds equal to
the Aggregate Purchase Price, as set forth in Section 2, for the Shares being
purchased at the Closing;
(ii) each of the representations and warranties of the
Purchaser made herein were accurate as of and when made; and
(iii) the fulfillment in all material respects of those
undertakings of the Purchaser to be fulfilled at or prior to the Closing.
(d) The Purchaser's obligation to accept delivery of such stock
certificate(s) at the Closing and to pay for the Shares evidenced thereby shall
be subject to the following conditions, any one or more of which may be waived
by the Purchaser:
(i) each of the representations and warranties of the Company
made herein were accurate as of and when made;
(ii) the fulfillment in all material respects of those
undertakings of the Company to be fulfilled at or prior to the Closing;
(iii) the delivery to the Purchaser by the Israeli counsel to
the Company of a legal opinion in a form reasonably satisfactory to him;
(iv) no judgment, writ, order, injunction, award or decree of
or by any court, or judge, justice or magistrate, including any bankruptcy court
or judge, or any order of or by any governmental authority, shall have been
issued, and no action or proceeding shall have been instituted by any
governmental authority, in each case that is in effect and enjoins or prevents
the consummation of the transactions contemplated hereby and there shall be no
current stop order or ongoing suspension, the Securities and Exchange Commission
(the "Commission") or any other governmental or regulatory body with respect to
public trading in the Shares; and
(v) The Company shall have delivered a certificate, executed
on behalf of the Company by its Secretary, dated as of the date of the Closing,
certifying the resolutions adopted by the Board of Directors of the Company
approving the transactions contemplated by this Agreement and the issuance of
the Shares (subject to conditions set forth herein) and certifying as to the
signatures and authority of persons signing this Agreement and any other related
documents on behalf of the Company.
SECTION 4. Representations, Warranties and Covenants of the Company. The
Company hereby represents and warrants to, and covenants with, the Purchaser
that:
4.1 Organization and Qualification. The Company has been duly
incorporated and is validly existing under the laws of the State of Israel and
the Company is duly qualified to do business as a foreign corporation in each
jurisdiction in which qualification is required, except where failure to so
qualify would not have a Material Adverse Effect (as defined below). The
Company's subsidiaries (each a "Subsidiary" and collectively the "Subsidiaries")
are listed on EXHIBIT A to this Agreement. Each Subsidiary is duly organized,
validly existing and in good standing (where applicable) under the laws of its
jurisdiction of incorporation and is duly qualified to do business as a foreign
corporation in
each jurisdiction in which qualification is required, except where failure to
so qualify would not have a Material Adverse Effect. For the purposes of this
Agreement the term "Material Adverse Effect" shall mean a material adverse
effect on the condition (financial or otherwise), properties, business or
results of operations of the Company and its Subsidiaries, taken as a whole
other than any effect arising from or relating to (A) general economic
conditions, (B) the negotiation, execution, announcement or performance of
this Agreement or the consummation of the transactions contemplated hereunder
or (C) any change in the Company's stock price or trading volume in and of
itself (but not excluding the underlying cause of any such change pursuant to
this clause (C)).
4.2 Authorized Capital Stock. The Company had duly authorized and
validly issued outstanding capitalization as set forth in its Annual Report on
Form 20-F as of the date set forth therein; the issued and outstanding ordinary
shares of the Company have been duly authorized and validly issued, are fully
paid and nonassessable, have been issued in compliance in all material respects
with all Israeli, federal and state securities laws, were not issued in
violation of or subject to any preemptive rights or other rights to subscribe
for or purchase securities, and conform in all material respects to the
description thereof contained in the Company's filings with the U.S. Securities
and Exchange Commission since January 1, 2007 (the "SEC Documents"). Except as
described in the SEC Documents and except for shares issuable under this
Agreement, the Company does not have outstanding any options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, shares of its capital stock or any such options, rights,
convertible securities or obligations.
4.3 Shareholder Authorization. Neither the execution, delivery or
performance by the Company of this Agreement nor the consummation by the Company
of the transactions contemplated hereby (including, without limitation, the
issuance of the Shares) requires any consent or authorization of the Company's
shareholders.
4.4 Issuance, Sale and Delivery of the Shares. The Shares have been
duly authorized and, when issued, delivered and paid for in the manner set forth
in this Agreement, will be validly issued, fully paid and nonassessable, and
will conform in all material respects to the description thereof set forth in
the SEC Documents.
4.5 Due Execution, Delivery and Performance of the Agreements. The
Company has full legal right, corporate power and authority to enter into this
Agreement and perform the transactions contemplated hereby and thereby. This
Agreement has been duly authorized, executed and delivered by the Company. This
Agreement constitutes a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting the enforcement of creditors' rights and the application of equitable
principles relating to the availability of remedies, may be limited by Israeli,
U.S. federal or state securities law or the public policy underlying such laws.
The execution and performance of this Agreement by the Company and the
consummation of the transactions herein contemplated will not violate (i) any
provision of the Articles of Association or Memorandum of Association of the
Company or the organizational documents of any Subsidiary and will not result in
the creation of any
lien, charge, security interest or encumbrance upon any material property or
assets of the Company or any Subsidiary pursuant to the terms or provisions of,
or will not conflict with, result in the breach or violation of, or constitute,
either by itself or upon notice or the passage of time or both, a default under
any material agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which either of the Company or any
Subsidiary is a party or by which any of the Company or any Subsidiary or their
respective properties may be bound or affected and, in each case that would have
a Material Adverse Effect, or (ii) any statute or any authorization, judgment,
decree, order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental agency or body applicable to the
Company or any Subsidiary or any of their respective properties and in each case
that would have a Material Adverse Effect.
4.6 No Defaults or Consents. Except as set forth in the SEC Documents,
neither the execution, delivery and performance of this Agreement by the Company
nor the consummation of any of the transactions contemplated hereby (including,
without limitation, the issuance and sale by the Company of the Shares) will
give rise to a right to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or both
would constitute a default) under, except such defaults that individually or in
the aggregate would not cause a Material Adverse Effect, or require any consent
or waiver under any material agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other material agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which either
the Company or its Subsidiaries or any of its or their respective properties or
businesses is bound, or any material franchise, license, permit, judgment,
decree, order, statute, rule or regulation applicable to the Company or any of
its Subsidiaries, except for such consents or waivers which have already been
obtained or will be obtained prior to the Closing.
4.7 No Material Adverse Change. Except as set forth in the SEC
Documents: (i) the Company and its Subsidiaries have not incurred any material
liabilities or obligations, indirect, or contingent, or entered into any
material contract, agreement or other transaction that is not in the ordinary
course of business or that could reasonably be expected to result in a Material
Adverse Effect; (ii) the Company and its Subsidiaries have not sustained any
material loss or interference with their businesses or properties from fire,
flood, windstorm, accident or other calamity; (iii) neither the Company nor its
Subsidiaries have paid or declared any dividends or other distributions with
respect to their capital stock and none of the Company or any Subsidiary is in a
default in the payment of principal or interest on any material outstanding debt
obligations; (iv) there has not been any change in the capital stock of the
Company or its Subsidiaries other than the sale of the Shares hereunder and
shares or options issued pursuant to employee equity incentive plans or purchase
plans approved by the Company's Board of Directors, or indebtedness material to
the Company or its Subsidiaries (other than in the ordinary course of business
and any required scheduled payments); and (v) there has not occurred any event
that has caused or could reasonably be expected to cause a Material Adverse
Effect.
4.8 SEC Documents. To the extent that any SEC Document is available
under the Commission's EDGAR (Electronic Data Gathering, Analysis, and
Retrieval)
system, such SEC Document shall be deemed to have been delivered to the
Purchaser. None of the SEC Documents, at the time they were filed with the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Since January 1, 2007, the Company has timely filed
(within applicable extension periods) all reports, schedules, forms, statements
and other documents required to be filed by it with the Commission pursuant to
the reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
4.9 Absence of Litigation. Except as disclosed in the SEC Documents
filed prior to the date hereof, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency,
self-regulatory organization or body, including, without limitation, the SEC or
the NASDAQ Stock Market, pending or, to the knowledge of the Company or any of
its Subsidiaries, threatened against or affecting the Company, any of its
Subsidiaries, or any of their respective directors or officers in their
capacities as such.
4.10 Foreign Corrupt Practices. Neither the Company, nor any of its
Subsidiaries, nor, to the knowledge of the Company, any director, officer,
agent, employee or other person acting on behalf of the Company or any
Subsidiary has, in the course of his actions for, or on behalf of, the Company,
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expenses relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign or
domestic government official or employee.
4.11 Financial Statements. The consolidated financial statements of the
Company and the related notes and schedules thereto included in its Exchange Act
filings comply as to form in all material respects with the requirements of the
Exchange Act and fairly present the financial position, results of operations,
shareholders' equity and cash flows of the Company and its consolidated
Subsidiaries at the dates and for the periods specified therein. Such financial
statements and the related notes and schedules thereto have been prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as otherwise noted
therein); provided, however, that the unaudited financial statements are subject
to normal year-end audit adjustments (which are not expected to be material) and
do not contain all footnotes required under generally accepted accounting
principles.
4.12 Listing Compliance. The Company is not currently in compliance
with the requirements of the NASDAQ Capital Market for continued listing of its
ordinary shares thereon and no assurance can be given that it will regain
compliance with such requirements. The transactions contemplated by this
Agreement will not contravene the rules and regulations of the NASDAQ Capital
Market. The Company will comply with all requirements of the NASDAQ Capital
Market with respect to the issuance of the Shares and shall use its best efforts
to cause the Shares to be listed on the NASDAQ Capital Market on or before the
date of the Closing.
4.13 No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would cause this offering of Shares to
be integrated with any prior offering of securities of the Company for purposes
of any applicable stockholder approval provisions.
4.14 No Brokers. The Company has taken no action which would give rise
to any claim by any person for brokerage commissions, finder's fees or similar
payments by the Purchaser relating to this Agreement or the transactions
contemplated hereby.
4.15 Tax Status. Except as set forth in the SEC Documents, the Company
and each of its Subsidiaries has made or filed all Israeli, U.S. federal, state
and local income and all other tax returns, reports and declarations required by
any jurisdiction to which it is subject (unless and only to the extent that the
Company and each of its Subsidiaries has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) and has
paid all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set aside on
its books provisions reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations
apply. Except as set forth in the SEC Documents, there are no unpaid taxes in
any material amount claimed to be due by the tax authority of any jurisdiction,
and to the knowledge of the Company, the officers of the Company know of no
basis for any such claim. Except as set forth in the SEC Documents, the Company
has not executed a waiver with respect to any statute of limitations relating to
the assessment or collection of any federal, state or local tax. Except as set
forth in the SEC Documents, the Company has received no notice that any of its
tax returns is presently being audited by any tax authority.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
The Purchaser represents and warrants to, and covenants with, the Company that:
5.1 Experience. (i) The Purchaser is knowledgeable, sophisticated and
experienced in financial and business matters, in making, and is qualified to
make, decisions with respect to investments in shares representing an investment
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company and comparable entities, and the Purchaser
has undertaken an independent analysis of the merits and the risks of an
investment in the Shares, based on the Purchaser's own financial circumstances;
(ii) the Purchaser has had the opportunity to request, receive, review and
consider all information it deems relevant in making an informed decision to
purchase the Shares and to ask questions of, and receive answers from, the
Company concerning such information; (iii) the Purchaser is acquiring the Shares
in the ordinary course of his business and for his own account for investment
only and with no present intention of distributing any of such Shares or any
arrangement or understanding with any other persons regarding the distribution
of such Shares; (iv) the Purchaser will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares, nor will
the Purchaser engage in any short sale that results in a disposition of any of
the Shares by the Purchaser, except in compliance with
the Securities Act and the rules and regulations promulgated thereunder and any
applicable state securities or "blue sky" laws, including the laws of the State
of Israel, if applicable; and (vi) the Purchaser has had an opportunity to
discuss this investment with representatives of the Company and ask questions of
them.
5.2 Reliance on Exemptions. The Purchaser understands that the Shares
are being offered and sold to it in reliance upon specific exemptions from the
registration requirements of the Securities Act, the rules and regulations
thereunder and state securities or "blue sky" laws and that the Company is
relying upon the truth and accuracy of, and the Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
the Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of the Purchaser to acquire the Shares.
5.3 Confidentiality. The Purchaser agrees to keep confidential all
information concerning this private placement. The Purchaser is prohibited from
reproducing or distributing this Agreement or any other offering materials or
other information provided by the Company in connection with the Purchaser's
consideration of its investment in the Company, in whole or in part, or
divulging or discussing any of their contents, except to its financial,
investment or legal advisors in connection with its proposed investment in the
Shares. Further, the Purchaser understands that the existence and nature of all
conversations and presentations, if any, regarding the Company and this offering
must be kept strictly confidential.
5.4 Investment Decision. The Purchaser understands that nothing in the
Agreement or any other materials presented to the Purchaser in connection with
the purchase and sale of the Shares constitutes legal, tax or investment advice.
The Purchaser has consulted such legal, tax and investment advisors as it, in
its sole discretion, has deemed necessary or appropriate in connection with his
purchase of the Shares. The Purchaser is not purchasing the Shares as a result
of any advertisement, article, notice or other communication regarding the
Shares published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general
solicitation or general advertisement.
5.5 Risk of Loss. The Purchaser understands that its investment in the
Shares involves a significant degree of risk, including a risk of total loss of
the Purchaser's investment, and the Purchaser has full cognizance of and
understands all of the risk factors related to the Purchaser's purchase of the
Shares, including, but not limited to, those set forth under the caption "Risk
Factors" in certain SEC Documents. The Purchaser understands that the market
price of the Company's ordinary shares has been volatile and that no
representation is being made as to the future value of the ordinary shares.
5.6 Legend. The Purchaser understands that, until such time as the
Shares may be sold pursuant to Rule 144 under the Securities Act without any
restriction as to the number of securities as of a particular date that can then
be immediately sold, the Shares will bear a restrictive legend in substantially
the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. THE SHARES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE STATE SECURITIES LAWS AND THE SECURITIES
LAWS OF OTHER JURISDICTIONS AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT,
THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY."
5.7 Stop Transfer. The certificates representing the Shares will
be subject to a stop transfer order with the Company's transfer agent.
5.8 Residency. The Purchaser resides in and is a citizen of the
State of Israel.
5.9 Short Sales. Since the time the Purchaser was first contacted about
the offering of the Shares and the transaction contemplated hereby, the
Purchaser has not taken, and prior to the public announcement of the transaction
to be made after the Closing the Purchaser shall not take, any action that has
caused or will cause the Purchaser to have, directly or indirectly, sold or
agreed to sell any of the Company's ordinary shares, effected any short sale,
whether or not against the box, established any "put equivalent position" (as
defined in Rule 16a-1(h) under the Exchange Act with respect to the Company's
ordinary shares, granted any other right (including, without limitation, any put
or call option) with respect to the Company's ordinary shares or with respect to
any security that includes, relates to or derived any significant part of its
value from the Company's ordinary shares.
5.10 Disclosure. The Purchaser acknowledges and agrees that the Company
does not make nor has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in
Section 4.
SECTION 6. Notices: All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, e-mail, confirmed facsimile or nationally
recognized overnight express courier postage prepaid, and shall be deemed given
on the earliest of (a) the next Business Day after the date of transmission, if
such notice or communication is delivered via facsimile with confirmation of
receipt at the facsimile number set forth below prior to 5:00 p.m. (Israel time)
on a Trading Day, (b) two Trading Days after the date of transmission, if such
notice or communication is delivered via facsimile with confirmation of receipt
at the facsimile number set forth on the signature pages attached hereto on a
day that is not a Trading Day or later than 5:00 p.m. (Israel time) on any
Trading Day, (c) the second Trading Day following the date of mailing (fifth
Trading Day if sent internationally), if sent by a nationally recognized
overnight courier service in the United States,
or (d) upon actual receipt by the party to whom such notice is required to be
given, and shall be delivered as addressed as follows:
if to the Company, to:
Mer Telemanagement Solutions Ltd.
22 Zarhin St.
Ra'anana 43662, Israel
Attn: Alon Mualem, Chief Financial Officer
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and if to the Purchaser, at its address as set forth
at the end of this Agreement, or at such other address or addresses as may have
been furnished to the Company in writing.
SECTION 7. Changes. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Purchaser.
SECTION 8. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
SECTION 9. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 10. Governing Law; Jurisdiction. This Agreement is to be construed
in accordance with and governed by the laws of the State of Israel (without
regard to conflict of law principles). Each of the Company and the Purchaser
submits to the exclusive jurisdiction of the competent court in Israel for
purposes of all legal proceedings arising out of or relating to this Agreement
and the transactions contemplated hereby.
SECTION 11. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument, and shall become effective when
one or more counterparts have been signed by each party hereto and delivered to
the other parties. Facsimile signatures shall be deemed original signatures.
SECTION 12. Entire Agreement. This Agreement and the instruments referenced
herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither the Company nor the Purchaser makes any representation,
warranty, covenant or undertaking with respect to such matters. Each party
expressly represents and warrants that it is not relying on any oral or written
representations, warranties, covenants or agreements outside of this Agreement.
SECTION 13. Fees and Expenses. Except as set forth herein, each of the
Company and the Purchaser shall pay its respective fees and expenses related to
the transactions contemplated by this Agreement.
SECTION 14. Further Assurances. Each party agrees to cooperate fully with
the other parties and to execute such further instruments, documents and
agreements and to give such further written assurance as may be reasonably
requested by any other party to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and purposes
of this Agreement.
SECTION 15. Construction. (a) For purposes of this Agreement, whenever the
context requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation".
(d) Except as otherwise indicated, all references in this Agreement to
"Sections", "Schedules" and "Exhibits" are intended to refer to Sections of this
Agreement and Schedules and Exhibits to this Agreement. The term "Business Day"
means any day other than Saturday or other day on which commercial banks in Tel
Aviv, Israel are authorized or required by law to remain closed. The term
"Trading Day" means any day on which the Company's ordinary shares are traded on
the NASDAQ Capital Market, or, if the NASDAQ Capital Market is not the principal
trading market for the Company's ordinary shares, then on the principal
securities exchange or securities market on which the ordinary shares are then
traded.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first above
written.
MER TELEMANAGEMENT SOLUTIONS LTD.
By: ___________________________
Name:
Title:
Purchaser:
___________________________
Lior Salansky
Address: 3 Odem Street, Caesarea 30889
Israel
Telephone: _______________________
Facsimile: _______________________
E-mail: _______________________
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.
MER TELEMANAGEMENT SOLUTIONS LTD.
(Registrant)
By: /s/Eytan Bar
------------
Eytan Bar
President and
Chief Executive Officer
Date: January 28, 2008