Exhibit 4.6
WARRANT AGREEMENT
Dated as of November , 1996
by and among
ACCENT SOFTWARE INTERNATIONAL LTD.
a corporation organized under the
laws of the State of Israel
and
SANDS BROTHERS & CO., LTD.
Representative
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
Warrant Agent
Table of contents
Section Page
1. Appointment of Warrant Agent............................................. 1
2. Form of Warrant.......................................................... 2
3. Countersignature and Registration........................................ 3
4. Transfers and Exchanges.................................................. 3
5. Exercise of Warrants; Payment of Warrant
Solicitation Fee....................................................... 4
6. Payment of Taxes......................................................... 8
7. Mutilated or Missing Warrants............................................ 9
8. Reservation of Ordinary Shares........................................... 9
9. Warrant Price; Adjustments............................................... 11
10. Fractional Interest..................................................... 18
11. Notices to Warrantholders............................................... 19
12. Disposition of Proceeds on Exercise of
Warrants............................................................... 21
13. Redemption of Warrants.................................................. 22
14. Merger or Consolidation or Chance of Name of
Warrant Agent.......................................................... 22
15. Duties of Warrant Agent................................................. 23
16. Change of Warrant Agent................................................. 27
17. Identity of Transfer Agent.............................................. 28
18. Notices................................................................. 28
19. Supplements and Amendments.............................................. 30
20. Governing Law........................................................... 31
21. Benefits of this Agreement.............................................. 31
22. Successors.............................................................. 31
Exhibit A - Form of Warrant
WARRANT AGREEMENT dated as of November , 1996, by and among Accent
Software International Ltd., a corporation organized under the laws of the State
of Israel (the "Company"), Sands Brothers & Co., Ltd. (the "Representative") and
American Stock Transfer & Trust Company, as warrant agent (hereinafter called
the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell to the public up to
1,800,000 Units (the "Units"), each consisting of one share of the ordinary
shares, nominal value NIS .01 per share, of the Company (hereinafter, together
with the stock of any other class to which such shares may hereafter have been
changed, called "Ordinary Shares"), and one redeemable warrant to purchase an
Ordinary Share (the "Warrants");
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange and exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints
the Warrant Agent to act as Warrant Agent for the Company in accordance with the
instructions hereinafter set forth
in this Agreement, and the Warrant Agent hereby accepts such appointment.
Section 2. FORM OF WARRANT. The text of the Warrants and of the form
of election to purchase Ordinary Shares to be printed on the reverse thereof
shall be substantially as set forth in Exhibit A attached hereto. The
securities comprising the Units are not separable or separately transferable
prior to _____, 1997, without the consent of the Representative. Each Warrant
shall entitle the registered holder thereof to purchase one (1) Ordinary Share
at a purchase price of Dollars and Cents ($ ), at any time after
they are separated from the Unit until 5:00 p.m. Eastern time, on November ,
2001 (the "Warrant Exercise Period"). The warrant price and the number of
Ordinary Shares issuable upon exercise of the Warrants are subject to adjustment
upon the occurrence of certain events, all as hereinafter provided. The
Warrants shall be executed on behalf of the Company by the manual or facsimile
signature of the present or any future President or Vice President of the
Company, attested to by the manual or facsimile signature of the present or any
future Secretary or Assistant Secretary of the Company.
Warrants shall be dated as of the issuance by the Warrant Agent either
upon initial issuance or upon transfer or exchange.
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In the event the aforesaid expiration dates of the Warrants fall on a
Saturday or Sunday, or on a legal holiday on which the New York Stock Exchange,
the American Stock Exchange or The Nasdaq Stock Market is closed, then the
Warrants shall expire at 5:00 p.m. Eastern time on the next succeeding business
day.
Section 3. COUNTERSIGNATURE AND REGISTRATION. The Warrant Agent
shall maintain books for the transfer and registration of Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof. The Warrants shall be
countersigned manually or by facsimile by the Warrant Agent (or by any successor
to the Warrant Agent then acting as warrant agent under this Agreement) and
shall not be valid for any purpose unless so countersigned. Warrants may,
however, be so countersigned by the Warrant Agent (or by its successor as
Warrant Agent) and be delivered by the Warrant Agent, notwithstanding that the
persons whose manual or facsimile signatures appear thereon as proper officers
of the Company shall have ceased to be such officers at the time of such
countersignature or delivery.
Section 4. TRANSFERS AND EXCHANGES. The Warrant Agent shall
transfer, from time to time, any outstanding Warrants upon the books to be
maintained by the Warrant Agent for that purpose, upon surrender thereof for
transfer properly endorsed or accom-
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panied by appropriate instructions for transfer. Upon any such transfer, a new
Warrant shall be issued to the transferee and the surrendered Warrant shall be
cancelled by the Warrant Agent. Warrants so cancelled shall be delivered by the
Warrant Agent to the Company from time to time upon request. Warrants may be
exchanged at the option of the holder thereof, when surrendered at the office of
the Warrant Agent, for another Warrant, or other Warrants of different
denominations of like tenor and representing in the aggregate the right to
purchase a like number of Ordinary Shares.
Section 5. EXERCISE OF WARRANTS; PAYMENT OF WARRANT SOLICITATION FEE.
(a) Subject to the provisions of this Agreement, each
registered holder of Warrants shall have the right, which may be exercised
commencing at the opening of business on the first day of the Warrant Exercise
Period, to purchase from the Company (and the Company shall issue and sell to
such registered holder of Warrants) the number of fully paid and non-assessable
Ordinary Shares specified in such Warrants upon surrender of such Warrants to
the Company at the office of the Warrant Agent, with the form of election to
purchase on the reverse thereof duly filled in and signed, and upon payment to
the Company of the warrant price, determined in accordance with the provisions
of Sections 9 and 10 of this Agreement, for the
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number of Ordinary Shares in respect of which such Warrants are then exercised.
Payment of such warrant price shall be made in cash or by certified check or
bank draft to the order of the Company. Subject to Section 6, upon such
surrender of Warrants and payment of the warrant price, the Company shall issue
and cause to be delivered with all reasonable dispatch to or upon the written
order of the registered holder of such Warrants and in such name or names as
such registered holder may designate, a certificate or certificates for the
number of full Ordinary Shares so purchased upon the exercise of such Warrants.
Such certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become a holder
of record of such Ordinary Shares as of the date of the surrender of such
Warrants and payment of the warrant price as aforesaid. The rights of purchase
represented by the Warrants shall be exercisable, at the election of the
registered holders thereof, either as an entirety or from time to time for a
portion of the shares specified therein and, in the event that any Warrant is
exercised in respect of less than all of the Ordinary Shares specified therein
at any time prior to the date of expiration of the Warrants, a new Warrant or
Warrants will be issued to the registered holder for the remaining number of
Ordinary Shares specified in the Warrant so surrendered, and the Warrant Agent
is hereby irrevocably authorized to countersign
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and to deliver the required new Warrants pursuant to the provisions of this
Section and of Section 3 of this Agreement and the Company, whenever requested
by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed
on behalf of the Company for such purpose. Anything in the foregoing to the
contrary notwithstanding, no Warrant will be exercisable unless at the time of
exercise the Company has filed with the Securities and Exchange Commission a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), covering the Ordinary Shares issuable upon exercise of such
Warrant and such shares have been so registered or qualified or deemed to be
exempt under the securities laws of the state of residence of the holder of such
Warrant. The Company shall use its best efforts to have all shares so
registered or qualified on or before the date on which the Warrants become
exercisable.
(b) If at the time of exercise of any Warrant after
November , 1997 (i) the per share market price of the Company's Ordinary
Shares is equal to or greater than the then purchase price of the Warrant; (ii)
the exercise of the Warrant is solicited by the Representative (it being
presumed that such exercise was not solicited unless the holder states in
writing that such exercise was solicited by the Representative) at such time
while the Representative is a member of the National Association of Securities
Dealers, Inc. ("NASD"); (iii) the
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Warrant is not held in a discretionary account; (iv) disclosure of the Exercise
Fee (as defined below) is made in documents provided to the holders of the
Warrants at the time of exercise; and (v) the solicitation of the exercise of
the Warrant is not in violation of Rule 10b-6 (as such rule or any successor
rule may be in effect as of such time of exercise) promulgated under the
Securities Exchange Act of 1934, as amended, then the Representative shall be
entitled to receive from the Company upon exercise of each of the Warrant(s) so
exercised a fee of five percent (5%) of the aggregate price of the Warrants so
exercised (the "Exercise Fee"). The procedures for payment of the warrant
solicitation fee are set forth in Section 5(c) below.
(c) (1) Within five (5) days of the last day of each month
in which any Warrants are exercised, commencing with November 1997, the Warrant
Agent will notify the Representative of each Warrant Certificate which has been
properly completed for exercise by holders of Warrants during the last month.
The Company and Warrant Agent shall determine, in their sole and absolute
discretion, whether a Warrant Certificate has been properly completed. The
Warrant Agent will provide the Representative with such information, in
connection with the exercise of each Warrant, as the Representative shall
reasonably request.
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(2) The Company hereby authorizes and instructs the
Warrant Agent to deliver to the Representative the Exercise Fee promptly after
receipt by the Warrant Agent from the Company of a check payable to the order of
the Representative in the amount of the Exercise Fee. In the event that an
Exercise Fee is paid to the Representative with respect to a Warrant which the
Company or the Warrant Agent determines is not properly completed for exercise
or in respect of which the Representative is not entitled to an Exercise Fee,
the Representative will return such Exercise Fee to the Warrant Agent which
shall forthwith return such fee to the Company.
The Representative and the Company may at any time, after November
, 1997, and during business hours, examine the records of the Warrant Agent,
including its ledger of original Warrant certificates returned to the Warrant
Agent upon exercise of Warrants. Notwithstanding any provision to the contrary,
the provisions of paragraph 5(b) and 5(c) may not be modified, amended or
deleted without the prior written consent of the Representative.
Section 6. PAYMENT OF TAXES. The Company will pay any documentary
stamp taxes attributable to the initial issuance of Ordinary Shares issuable
upon the exercise of Warrants; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the
8
issue or delivery of any Ordinary Share certificates in a name other than that
of the registered holder of Warrants in respect of which such shares are issued,
and in such case neither the Company nor the Warrant Agent shall be required to
issue or deliver any certificate for Ordinary Shares or any Warrant until the
person requesting the same has paid to the Company the amount of such tax or has
established to the Company's satisfaction that such tax has been paid or that
such person has an exemption from the payment of such tax.
Section 7. MUTILATED OR MISSING WARRANTS. In case any of the
Warrants shall be mutilated, lost, stolen or destroyed, the Company may, in its
discretion, issue and the Warrant Agent shall countersign and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and in substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right or interest, but only
upon receipt of evidence satisfactory to the Company and the Warrant Agent of
such loss, theft or destruction and, in case of a lost, stolen or destroyed
Warrant, indemnity, if requested, also satisfactory to them. Applicants for
such substitute Warrants shall also comply with such other reasonable
regulations and pay such reasonable charges as the Company or the Warrant Agent
may prescribe.
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Section 8. RESERVATION OF ORDINARY SHARES. There have been reserved,
and the Company shall at all times keep reserved, out of the authorized and
unissued Ordinary Shares, a number of Ordinary Shares sufficient to provide for
the exercise of the rights of purchase represented by the Warrants, and the
transfer agent for the Ordinary Shares and every subsequent transfer agent for
any of the Company's Ordinary Shares issuable upon the exercise of any of the
rights of purchase aforesaid are irrevocably authorized and directed at all
times to reserve such number of authorized and unissued Ordinary Shares as shall
be required for such purpose. The Company agrees that all Ordinary Shares
issued upon exercise of the Warrants shall be, at the time of delivery of the
certificates of such shares, validly issued and outstanding, fully paid and
nonassessable and listed on any national securities exchange upon which the
other Ordinary Shares are then listed. So long as any unexpired Warrants remain
outstanding, the Company will file such post-effective amendments to the
registration statement (Form S-1, Registration No. 333-7637) (the "Registration
Statement") filed pursuant to the Securities Act with respect to the Warrants
(or other appropriate registration statements or post-effective amendment or
supplements) as may be necessary to permit it to deliver to each person
exercising a Warrant, a prospectus meeting the requirements of Section 10(a)(3)
of the Act and otherwise
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complying therewith, and will deliver such a prospectus to each such person. To
the extent that during any period it is not reasonably likely that the Warrants
will be exercised, due to market price or otherwise, the Company need not file
such a post-effective amendment during such period. The Company will keep a
copy of this Agreement on file with the transfer agent for the Ordinary Shares
and with every subsequent transfer agent for any of the Company's Ordinary
Shares issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is irrevocably authorized to requisition from time
to time from such transfer agent stock certificates required to honor
outstanding Warrants. The Company will supply such transfer agent with duly
executed stock certificates for that purpose. All Warrants surrendered in the
exercise of the rights thereby evidenced shall be cancelled by the Warrant Agent
and shall thereafter be delivered to the Company, and such cancelled Warrants
shall constitute sufficient evidence of the number of Ordinary Shares which have
been issued upon the exercise of such Warrants. Promptly after the date of
expiration of the Warrants, the Warrant Agent shall certify to the Company the
total aggregate amount of Warrants then outstanding, and thereafter no Ordinary
Shares shall be subject to reservation in respect of such Warrants which shall
have expired.
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Section 9. WARRANT PRICE; ADJUSTMENTS.
(i) The warrant price at which Ordinary Shares shall be
purchasable upon the exercise of the Warrants shall be $ per share or after
adjustment, as provided in this Section, shall be such price as so adjusted (the
"Warrant Price").
(ii) The Warrant Price shall be subject to adjustment from time
to time as follows:
(I) In case the Company shall at any time after the date
hereof pay a dividend in Ordinary Shares or make a distribution in Ordinary
Shares, then upon such dividend or distribution the Warrant Price in effect
immediately prior to such dividend or distribution shall forthwith be reduced to
a price determined by dividing:
(A) an amount equal to the total number of Ordinary Shares
outstanding immediately prior to such dividend or distribution multiplied by the
Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of Ordinary Shares outstanding
immediately after such dividend or distribution.
For the purposes of any computation to be made in accordance
with the provisions of this clause (I), the following provisions shall be
applicable: Ordinary Shares issuable by way of dividend or other distribution
on any stock of
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the Company shall be deemed to have been issued immediately after the opening of
business on the date following the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution.
(II) In case the Company shall at any time subdivide or
combine the outstanding Ordinary Shares, the Warrant Price shall forthwith be
proportionately decreased in the case of subdivision or increased in the case of
combination to the nearest one cent. Any such adjustment shall become effective
at the time such subdivision or combination shall become effective.
(III) Within a reasonable time after the close of each
quarterly fiscal period of the Company during which the Warrant Price has been
adjusted as herein provided, the Company shall
(A) file with the Warrant Agent a certificate signed by the
President or Vice President of the Company and by the Treasurer or Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company, showing in
detail the facts requiring all such adjustments occurring during such period and
the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to
any such certificate filed with it except to keep the same on file and available
for inspection by holders of Warrants during reasonable business hours, and the
Warrant Agent
13
may conclusively rely upon the latest certificate furnished to it hereunder.
The Warrant Agent shall not at any time be under any duty or responsibility to
any holder of a Warrant to determine whether any facts exist which may require
any adjustment of the Warrant Price, or with respect to the nature or extent of
any adjustment of the Warrant Price when made, or with respect to the method
employed in making any such adjustment, or with respect to the nature or extent
of the property or securities deliverable hereunder. In the absence of a
certificate having been furnished, the Warrant Agent may conclusively rely upon
the provisions of the Warrants with respect to the Ordinary Shares deliverable
upon the exercise of the Warrants and the applicable Warrant Price thereof.
(C) Notwithstanding anything contained herein to the
contrary, no adjustment of the Warrant Price shall be made if the amount of such
adjustment shall be less than $.05, but in such case any adjustment that would
otherwise be required then to be made shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which, together
with any adjustment so carried forward, shall amount to not less than $.05.
(iii) In the event that the number of outstanding Ordinary Shares
is increased by a stock dividend payable in Ordinary Shares or by a subdivision
of the outstanding Ordinary
14
Shares, then, from and after the time at which the adjusted Warrant Price
becomes effective pursuant to Subsection (ii) of this Section by reason of such
dividend or subdivision, the number of Ordinary Shares issuable upon the
exercise of each Warrant shall be increased in proportion to such increase in
outstanding shares. In the event that the number of Ordinary Shares outstanding
is decreased by a combination of the outstanding Ordinary Shares, then, from and
after the time at which the adjusted Warrant Price becomes effective pursuant to
Subsection (ii) of this Section by reason of such combination, the number of
Ordinary Shares issuable upon the exercise of each Warrant shall be decreased in
proportion to such decrease in the outstanding Ordinary Shares.
(iv) In case of any reorganization or reclassification of the
outstanding Ordinary Shares (other than a change in nominal value, or from
nominal value to no nominal value, or as a result of a subdivision or
combination), or in case of any consolidation of the Company with, or merger of
the Company into, another corporation (other than a consolidation or merger in
which the Company is the continuing corporation and which does not result in any
reclassification of the outstanding Ordinary Shares), or in case of any sale or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety, the holder of each Warrant then
15
outstanding shall thereafter have the right to purchase the kind and amount of
Ordinary Shares and other securities and property receivable upon such
reorganization, reclassification, consolidation, merger, sale or conveyance by a
holder of the number of Ordinary Shares which the holder of such Warrant shall
then be entitled to purchase; such adjustments shall apply with respect to all
such changes occurring between the date of this Warrant Agreement and the date
of exercise of such Warrant.
(v) In case the Company shall at any time after the date hereof
pay a dividend in Ordinary Shares or make a distribution in Ordinary Shares,
then upon such dividend or distribution, the Warrant Price in effect immediately
prior to such dividend or distribution shall be reduced to a price determined by
dividing an amount equal to the total number of Ordinary Shares outstanding
immediately prior to such dividend or distribution multiplied by the Warrant
Price in effect immediately prior to such dividend or distribution, by the total
number of Ordinary Shares outstanding immediately after such issuance or sale.
For purposes of any computation to be made in accordance with the provisions of
this Section (v), the Ordinary Shares issuable by way of dividend or
distribution shall be deemed to have been issued immediately after the opening
of business on the date following the date fixed for determination of
shareholders entitled to receive such dividend or distribution.
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(vi) In case of the dissolution, liquidation or winding up of the
Company, all rights under the Warrants shall terminate on a date fixed by the
Company, such date to be no earlier than ten (10) days prior to the
effectiveness of such dissolution, liquidation or winding up and not later than
five (5) days prior to such effectiveness. Notice of such termination of
purchase rights shall be given to the last registered holder of the Warrants, as
the same shall appear on the books of the Company maintained by the Warrant
Agent, by registered mail at least fifteen (15) days prior to such termination
date.
(vii) In case the Company shall, at any time prior to the
expiration of the Warrants and prior to the exercise thereof, offer to the
holders of its Ordinary Shares any rights to subscribe for additional shares of
any class of the Company, then the Company shall give written notice thereof to
the last registered holder thereof not less than thirty (30) days prior to the
date on which the books of the Company are closed or a record date is fixed for
the determination of the shareholders entitled to such subscription rights.
Such notice shall specify the date as to which the books shall be closed or
record date fixed with respect to such offer of subscription and the right of
the holder thereof to participate in such offer of subscription shall terminate
if the Warrant shall not be exercised on or before the date of such closing of
the books or such record date.
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(viii) Any adjustment pursuant to the aforesaid provisions shall
be made on the basis of the number of Ordinary Shares which the holder thereof
would have been entitled to acquire by the exercise of the Warrant immediately
prior to the event giving rise to such adjustment.
(ix) Irrespective of any adjustments in the Warrant Price or the
number or kind of shares purchasable upon exercise of the Warrants, Warrants
previously or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the similar Warrants initially
issuable pursuant to this Warrant Agreement.
(x) The Company may retain a firm of independent public
accountants (who may be any such firm regularly employed by the Company) to make
any computation required under this Section, and any certificate setting forth
such computation signed by such firm shall be conclusive evidence of the
correctness of any computation made under this Section.
(xi) If at any time, as a result of an adjustment made pursuant
to paragraph (iv) above, the holders of a Warrant or Warrants shall become
entitled to purchase any securities other than Ordinary Shares, thereafter the
number of such securities so purchasable upon exercise of each Warrant and the
Warrant Price for such shares shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as
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practicable to the provisions with respect to the Ordinary Shares contained in
paragraphs (ii) and (iii).
Section 10. FRACTIONAL INTEREST. The Warrants may only be exercised
to purchase full Ordinary Shares and the Company shall not be required to issue
fractions of Ordinary Shares on the exercise of Warrants. However, if a Warrant
holder exercises all Warrants then owned of record by him and such exercise
would result in the issuance of a fractional share, the Company will pay to such
Warrant holder, in lieu of the issuance of any fractional share otherwise
issuable, an amount of cash based on the market value of the Ordinary Shares of
the Company on the last trading day prior to the exercise date.
Section 11. NOTICES TO WARRANTHOLDERS.
(i) Upon any adjustment of the Warrant Price and the number of
Ordinary Shares issuable upon exercise of a Warrant, then and in each such case
the Company shall give written notice thereof to the Warrant Agent, which notice
shall state the Warrant Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. The Company
shall also mail such notice to the holders of the Warrants at their addresses
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appearing in the Warrant register. Failure to give or mail such notice, or any
defect therein, shall not affect the validity of
the adjustments.
(ii) In case at any time:
(I) the Company shall pay dividends payable in stock upon
its Ordinary Shares or make any distribution (other than regular cash dividends)
to the holders of its Ordinary Shares; or
(II) the Company shall offer for subscription pro rata to
the holders of its Ordinary Shares any additional shares of stock of any class
or other rights; or
(III) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with, or sale of substantially all of its assets to another
corporation; or
(IV) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then in any one or more of such cases, the Company shall give written notice in
the manner set forth in Section 11(a) of the date on which (A) a record shall be
taken for such dividend, distribution or subscription rights, or (B) such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up shall take place, as the case may be.
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Such notice shall also specify the date as of which the holders of Ordinary
Shares of record shall participate in such dividend, distribution or
subscription rights, or shall be entitled to exchange their Ordinary Shares for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be. Such notice shall be given at least fifteen
(15) days prior to the action in question and not less than fifteen (15) days
prior to the record date in respect thereof. Failure to give such notice, or
any defect therein, shall not affect the legality or validity of any of the
matters set forth in this Section 11(ii).
(iii) The Company shall cause copies of all financial statements
and reports, proxy statements and other documents that are sent to its
shareholders to be sent by first class mail, postage prepaid, on the date of
mailing to such shareholders, to each registered holder of Warrants at his
address appearing in the warrant register as of the record date for the
determination of the shareholders entitled to such documents.
Section 12. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS.
(i) The Warrant Agent shall promptly forward to the Company all
monies received by the Warrant Agent for the
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purchase of Ordinary Shares through the exercise of such Warrants.
(ii) The Warrant Agent shall keep copies of this Agreement
available for inspection by holders of Warrants during normal business hours.
Section 13. REDEMPTION OF WARRANTS. The Warrants are redeemable by
the Company upon the consent of the Representative, in whole or in part, on not
less than thirty (30) days' prior written notice at a redemption price of $
per Warrant at any time commencing upon the date hereof, provided that the
closing bid price of the Ordinary Shares on all twenty (20) trading days ending
on the third day prior to the day on which the Company gives notice of
redemption has been at least 130% of the then effective exercise price of the
Warrants. The redemption notice shall be mailed to the holders of the Warrants
at their addresses appearing in the Warrant register. Holders of the Warrants
will have exercise rights until the close of business on the date fixed for
redemption.
Section 14. MERGER OR CONSOLIDATION OR CHANCE OF NAME OF WARRANT
AGENT. Any corporation or company which may succeed to the corporate trust
business of the Warrant Agent by any merger or consolidation or otherwise shall
be the successor to the Warrant Agent hereunder without the execution or filing
of any paper or any further act on the part of any of the parties
22
hereto, provided that such corporation would be eligible as a successor Warrant
Agent under the provisions of Section 16 of this Agreement. In case at the time
such successor to the Warrant Agent shall succeed to the agency created by this
Agreement, any of the Warrants shall have been countersigned but not delivered,
any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrants so countersigned.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrants so countersigned. In all such cases such Warrants shall
have the full force provided in the Warrants and in the Agreement.
Section 15. DUTIES OF WARRANT AGENT. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Warrants, by
their acceptance thereof, shall be bound:
(i) The statements of fact and recitals contained herein and in
the Warrants shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The Warrant
23
Agent assumes no responsibility with respect to the distribution of the Warrants
except as herein expressly provided.
(ii) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants in this Agreement or in the
Warrants to be complied with by the Company.
(iii) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(iv) The Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant for any action taken in reliance
on any notice, resolution, waiver, consent, order, certificate or other
instrument believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(v) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges incurred by the Warrant Agent in the
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execution of this Agreement and to indemnify the Warrant Agent and save it
harmless against any and all liabilities, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent in
the execution of this Agreement except as a result of the Warrant Agent's
negligence, willful misconduct or bad faith.
(vi) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expenses unless the Company or one or more registered holders of
Warrants shall furnish the Warrant Agent with reasonable security and indemnity
for any costs and expenses which may be incurred, but this provision shall not
affect the power of the Warrant Agent to take such action as the Warrant Agent
may consider proper, whether with or without any such security or indemnity.
All rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrants or
the production thereof at any trial or other proceeding, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable benefit
of the registered holders of the Warrants, as their respective rights and
interests may appear.
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(vii) The Warrant Agent and any shareholder, director, officer,
partner or employee of the Warrant Agent may buy, sell or deal in any of the
Warrants or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with or lend
money to or otherwise act as fully and freely as though it were not the Warrant
Agent under this Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company or for any other legal entity.
(viii) The Warrant Agent shall act hereunder solely as agent and
its duties shall be determined solely by the provisions hereof.
(ix) The Warrant Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys, agents or employees, and the Warrant Agent shall not
be answerable or accountable for any such attorneys, agents or employees or for
any loss to the Company resulting from such neglect or misconduct, provided
reasonable care had been exercised in the selection and continued employment
thereof.
(x) Any request, direction, election, order or demand of the
Company shall be sufficiently evidenced by an instrument signed in the name of
the Company by its President or a Vice President or its Secretary or an
Assistant Secretary or
26
its Treasurer or an Assistant Treasurer (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Warrant Agent by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company.
Section 16. CHANGE OF WARRANT AGENT. The Warrant Agent may resign
and be discharged from its duties under this Agreement by giving to the Company
notice in writing, and to the holders of the Warrants notice by mailing such
notice to the holders at their addresses appearing on the Warrant register, of
such resignation, specifying a date when such resignation shall take effect.
The Warrant Agent may be removed by like notice to the Warrant Agent from the
Company and the like mailing of notice to the holders of the Warrants. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of thirty (30) days
after such removal or after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Warrant Agent or after the
Company has received such notice from a registered holder of a Warrant (who
shall, with such notice, submit his Warrant for inspection by the Company), then
the registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a
27
successor to the Warrant Agent. Any successor Warrant Agent, whether appointed
by the Company or by such a court, shall be a bank or trust company, in good
standing, incorporated under New York or federal law. After appointment, the
successor Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed and the former Warrant Agent shall deliver and transfer to
the successor Warrant Agent all cancelled Warrants, records and property at the
time held by it hereunder, and execute and deliver any further assurance or
conveyance necessary for the purpose. Failure to file or mail any notice
provided for in this Section, however, or any defect therein, shall not affect
the validity of the resignation or removal of the Warrant Agent or the
appointment of the successor Warrant Agent, as the case may be.
Section 17. IDENTITY OF TRANSFER AGENT. Forthwith upon the
appointment of any transfer agent for the Ordinary Shares or of any subsequent
transfer agent for the Ordinary Shares or other Ordinary Shares issuable upon
the exercise of the rights of purchase represented by the Warrants, the Company
will file with the Warrant Agent a statement setting forth the name and address
of such transfer agent.
Section 18. NOTICES. Any notice pursuant to this Agreement to be
given by the Warrant Agent, or by the registered
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holder of any Warrant to the Company, shall be sufficiently given if sent by
first-class mail, postage prepaid, addressed (until another is filed in writing
by the Company with the Warrant Agent) as follows:
Accent Software International Ltd.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Israel
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
and copies thereof to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Israel
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder of any Warrant to the Warrant Agent shall be sufficiently
given if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) as follows:
American Stock Transfer and Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Any notice pursuant to this Agreement to be given by the Warrant Agent
or by the Company to the Representative shall
29
be sufficiently given if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Warrant Agent) as follows:
Sands Brothers & Co., Ltd.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and copies thereof to:
▇▇▇▇▇▇▇ Krooks & ▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Naschitz, ▇▇▇▇▇▇▇ & Co.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Israel
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Section 19. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not be inconsistent with the provisions of the Warrants and which shall not
adversely affect the interest of the holders of Warrants.
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Section 20. GOVERNING LAW. This Agreement and each Warrant issued
hereunder shall be deemed to be a contract made under the laws of the State of
New York and shall be construed in accordance with the laws of New York
applicable to agreements to be performed wholly within New York.
Section 21. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrants any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the
registered holders of the Warrants.
Section 22. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company, the Warrant Agent or the
Representative shall bind and inure to the benefit of their respective
successors and assigns hereunder.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on
the date first above written.
ACCENT SOFTWARE INTERNATIONAL LTD.
By:
--------------------------------------------------
Name:
Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
--------------------------------------------------
Name:
Title:
SANDS BROTHERS & CO., LTD.
By:
--------------------------------------------------
Name:
Title:
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