SHAREHOLDERS AGREEMENT
Execution
Version
This
AGREEMENT (the
“Agreement”)
is
made as of March 24, 2008, by and between Xxxxx Joint Investments (2005)
Limited
Partnership (“Xxxxx”),
and
S. Xxxxxxx Investments (2008) Ltd. (“Xxxxxxx”)
(each
of Xxxxx and Xxxxxxx is referred to herein as a “Party”
and
collectively as the “Parties”).
WHEREAS,
Xxxxx
owns 13,649,148 ordinary shares of Nur Macroprinters Ltd. (the “Company”)
and
10,483,424 warrants of the Company; and
WHEREAS,
the
Parties contemplate entering into several transactions so that immediately
following such transactions each Party will own approximately 22.7 million
ordinary shares of the Company, Xxxxx will own approximately 13.5 million
warrants of the Company and Xxxxxxx (directly or by an Affiliate) will own
approximately 10.1 million warrants of the Company; and
WHEREAS,
the
Parties wish to set forth within the framework of this Agreement (a) the
terms
and conditions under which the Parties shall hold the Company shares and
warrants, and (b) their respective relations in their capacity as shareholders
of the Company.
NOW
THEREFORE, in
consideration of the mutual promises and covenants set forth herein, the
Parties
hereby agree as of the date first mentioned above as follows:
| 1. |
Preamble.
The Preamble to this Agreement constitutes an integral part of this
Agreement.
|
| 2. |
Sales
by Parties; Minimum Holdings:
|
| 2.1. |
Notwithstanding
anything to the contrary in this Agreement, except for the provisions
of
Section 4.6,
6
and 7.4
below,
until 31.3.2010 (the "Lock-Up
Period"),
none of the Parties shall sell, assign, transfer, pledge, hypothecate,
mortgage or dispose of, by gift or otherwise, or in any way encumber
any
Restricted Shares held by it, except that each Party shall be entitled
to
pledge the Restricted Shares held by such Party to a bank in order
to
finance the purchase thereof. “Restricted
Shares” shall
mean, for each Party (together with its Permitted Transferees pursuant
to
Section 4.6 below), such number of the Company’s shares constituting
25.05% of the total outstanding shares of the Company. The number
of
Restricted Shares shall be adjusted upon any issuance by the Company
of
any shares, including without limitation, upon the exercise of options,
rights or warrants, upon the issuance of bonus shares or upon the
consummation of stock splits, combinations and the like.
|
| 2.2. |
During
the Lock-up Period, except as set forth in Section 6
and 7.4
below,
and following the Lock-up Period for so long as neither Party has
sold or
otherwise transferred its Restricted Shares to a Proposed Purchaser
(as
defined in 4.1 below), each Party (together with its Permitted Transferees
pursuant to Section 4.6 below) shall hold such number of shares of
the
Company constituting, at all times, at least 25.05% of the total
outstanding shares of the Company. Accordingly, during the periods
described in the immediately preceding sentence, if any Party’s share
holding in the Company shall decrease below such threshold by dilution
or
otherwise, then promptly upon learning thereof, such Party shall
acquire
at least such number of additional shares of the Company to cause
such
Party to comply with this Section 2.2, by exercising options or warrants
or purchasing shares from third parties or otherwise.
|
| 3. |
Purchase
and Sale of Shares by Parties:
|
Following
the date hereof and during the Term (as defined below), each Party shall
be
entitled to (i) directly or indirectly purchase additional Shares, warrants
or
other securities of the Company (“Securities”);
and
(ii) sell Securities other than Restricted Shares (which Restricted Securities
may only be sold in accordance with other provisions of this Agreement),
following the provision of a seven (7) days prior written notice to the other
Party.
| 4. |
Right
of First Refusal:
|
| 4.1. |
If,
following the Lock-Up Period, Xxxxxxx or Xxxxx (the “Selling
Party”)
wishes to sell or otherwise transfer all of such Party’s Restricted Shares
(the “Offered
Shares”)
and shall obtain a bona fide offer (the “Third
Party Offer”)
from a non-Affiliated potential purchaser (the “Proposed
Purchaser”)
to purchase all such Offered Shares, then in such an event the Selling
Party shall be required to first offer such Offered Shares to the
other
Party (the “Offeree”).
The Selling Party shall send the Offeree a written offer (the
“Offer”)
in which the Selling Party shall specify the following information:
(i)
the number of Offered Shares that the Selling Party proposes to sell
or
transfer to the Proposed Purchaser, the identity of the Proposed
Purchaser, the price and payment terms and the other terms and conditions
contained in the Third Party Offer; (ii) a representation and warranty
that the Offered Shares shall, upon their transfer, be free and clear
of
all pledges, debts, security interests and other third party interests
(“Free
and Clear”).
For the avoidance of doubt, (a) a Party shall not be entitled to
sell and
transfer to a Proposed Purchaser part of its Restricted Shares; and
(b) no
sale shall be done for consideration other than cash.
|
| 4.2. |
The
Offer shall constitute an irrevocable offer made by the Selling Party
to
sell and transfer to the Offeree the Offered Shares, upon the terms
specified in the Offer.
|
| 4.3. |
If
the Offeree wishes to purchase all (but not a part) of the Offered
Shares
it shall notify in writing the Selling Party of its intent within
fourteen
(14) days of receipt of the Offer (“Notice
of Acceptance”)
and the closing of such transaction shall take place within thirty
(30)
days of receipt of the Notice of Acceptance and the Offered Shares
shall
be sold and transferred to the Offeree Free and Clear against payment
of
the consideration as specified in the Offer
|
| 4.4. |
If
the Offeree declines to purchase all of the Offered Shares upon the
terms
specified in the Offer or does not respond to the Offer within fourteen
(14) days of its receipt or if the Offeree fails to consummate the
transaction within thirty (30) days of the Notice of Acceptance due
to the
Offeree’s fault, then in any of such events the Selling Party may sell all
(but not a part) of the Offered Shares to the Proposed Purchaser,
provided
that such sale is consummated (i) in a bona fide transaction, (ii)
at a
price that is not lower than that specified in the Offer and (iii)
subject
to payment terms that are no more favorable to the Proposed Purchaser
than
those specified in the Offer, all within ninety (90) days of the
date of
the Offer and provided further that the Proposed Purchaser shall
join this
Agreement in writing and shall assume instead of the Selling Party,
all of
the rights and obligations of the Selling Party in its capacity as
a
shareholder of the Company in accordance with the terms of this Agreement.
In the event that the sale to the Proposed Purchaser in the manner
set
forth above is not effected within said ninety (90) days, the right
of
first refusal described herein shall apply again.
|
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| 4.5. |
A
transfer of Control (as defined below) in any legal way in either
Party
shall be deemed for the purpose of this Agreement as a sale by such
Party
of all of its Restricted Shares and Sections 4
and 5
shall apply, mutatis
mutandis.
Each Party which is subject to such transfer of Control shall have
the
obligation to promptly notify the other Party of such event.
Notwithstanding anything to the contrary, a transfer of interests
in Xxxxx
among its partners as of the date hereof shall not be deemed a transfer
of
Control.
|
| 4.6. |
Notwithstanding
anything to the contrary in this Agreement,
the rights of the Parties pursuant to the aforesaid provisions of
this
Section 4
and Section 5
below
as
well as the restriction under Section 2
above
shall not apply with respect to a Permitted Transfer, provided that:
(A)
the transferee shall join this Agreement in writing and agree to
be bound
by the terms of this Agreement; and (B) the transferor shall continue
to
be bound by this Agreement and guarantee the performance by the transferee
of its obligations under this Agreement.
|
For
the
purpose of this Section 4,
the
term “Permitted
Transfer”
means
a
sale or other transfer of Restricted Shares by a Party to an Affiliate of
such
Party.
“Affiliate”
means,
with respect to any Party, any person or legal entity (i) in which such Party,
directly or indirectly, owns at least majority (more than 50%) interest (both
economic and voting), or (ii) which directly or indirectly owns a majority
(more
than 50%) interest (both economic and voting) in such Party, or (iii) which,
directly or indirectly, is in Control of or is Controlled by such
Party.
“Control”
means
in relation to a person that is a corporation, the ownership, directly or
indirectly, of voting securities of such person carrying more than 50% of
the
voting rights attaching to all voting securities of such person which are
sufficient, if exercised, to elect a majority of its board of directors;
and
(ii) in relation to a person that is a partnership, limited partnership,
business trust or other similar entity, the ownership, directly or indirectly,
of voting securities of such person carrying more than 50% of the voting
rights
attaching to all voting securities of the person or the ownership of other
interests entitling the holder to exercise control and direction over the
activities of such person;
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| 5. |
Tag
Along:
|
| 5.1. |
Notwithstanding
the provisions of Section 4
above,
the Offeree shall, during the fourteen (14) day period in which the
Offeree could have provided the Notice of Acceptance pursuant to
Section
4
above,
have the right to notify the Selling Party of its intent to exercise
the
Tag Along Right pursuant to this Section 5
above
(the “Tag
Along Notice”).
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| 5.2. |
Following
the Tag Along Notice, the Selling Party shall not sell any of the
Offered
Shares to the Proposed Purchaser, unless the Proposed Purchaser shall
purchase from both the Offeree and the Selling Party, at the Offeree’s
discretion, either (i) all of their respective Restricted Shares;
or (ii)
such a number of Restricted Shares equal to the product obtained
by
multiplying (i) the aggregate number of the Offered Shares, by (ii)
a
fraction the numerator of which is the number of Restricted Shares
owned
by the Offeree at the time of the proposed sale to the Proposed Purchaser
and the denominator of which is the total number of Restricted Shares
owned by both the Offeree and the Selling Party at the time of the
proposed sale to the Proposed Purchaser; such sale to be upon the
same
terms and conditions under which the Selling Party’s Offered Shares shall
be sold.
|
| 6. |
Buy
Me Buy You:
|
| 6.1. |
If
following January 1, 2009 (but (subject to Section 7.4
below)
there shall be any disagreements between the Parties in relation
to the
Company or its business activities, then the Parties shall make their
best
efforts to resolve all such disagreements within thirty (30) days
of a
notice submitted by any of them to the other Party so requesting.
If all
the disagreements are not resolved within such thirty (30)-day period,
the
Parties shall make their best efforts to resolve all such disagreements
by
mediation. The Parties have selected Ram Caspi and Xxxx Xxxx as the
mediators for any unresolved disagreements under this Agreement.
In the
event that any of the said mediators becomes unwilling or unable
to serve,
his respective firm shall appoint a senior partner as a successor
mediator.
|
| 6.2. |
If
all the disagreements are not resolved by mediation within thirty
(30) day
period as provided in Section 6.1
above,
then each of the Parties (the “Offering
Party”)
shall have the right to notify the other
Party (the “Receiving
Party”),
in writing (the“Notice“)
of its demand to purchase all (but not a part) of the other Party’s
Restricted Shares, or to sell all (but not a part) of its Restricted
Shares to the other Party, at a price per share to be specified in
the
Notice, payable in cash against the transfer of the relevant shares
Free
and Clear. Issuing the said Notice shall constitute an irrevocable
offer
by the Offering Party for all intents and
purposes.
|
| 6.3. |
Within
thirty (30) days from the date of receipt of Notice, the Receiving
Party
shall be obligated to send to the Offering Party a notice indicating
whether it shall sell all (but not a part) of its Restricted Shares
to the
Offering Party or purchase all (but not a part) of the Restricted
Shares
of the Offering Party, in accordance with the terms set forth in
the
Notice.
|
-4-
| 6.4. |
Failure
on the Receiving Party to respond to the Notice within thirty (30)
days
from the date of receipt thereof, shall be the same as the Receiving
Party’s consent to sell all of its Restricted Shares to the Offering
Party, in accordance with the terms set forth in the
Notice.
|
| 6.5. |
If
the Receiving Party issues a notice indicating that it wishes to
purchase
all (but not a part) of the Offering Party's Restricted Shares, as
set
forth in the Notice, the Parties shall be deemed to have entered
into a
binding agreement whereby the Receiving Party shall purchase all
of the
Offering Party’s Restricted Shares in accordance with the terms set forth
in the Notice.
|
| 6.6. |
If
the Receiving Party issues a notice indicating that it wishes to
sell all
(but not a part) of the Receiving Party's Restricted Shares, as set
forth
in the Notice, the Parties shall be deemed to have entered into a
binding
agreement whereby the Offering Party shall purchase all of the Receiving
Party’s Restricted Shares in accordance with the terms set forth in the
Notice.
|
| 6.7. |
The
consummation of the sale transaction shall take place not later than
hundred and twenty (120) days from the date of receipt of the Notice
(the
“Closing
Date”).
On the Closing Date, the Parties shall simultaneously perform all
the acts
required for transferring all of the selling party’s Restricted Shares to
the purchasing party Free and Clear, in accordance with the terms
set
forth in the Notice.
|
| 7. |
Board
of Directors
and General Meetings:
|
For
the
purpose of this Section 6, the following definitions shall apply:
Organizational
Documents shall
mean the memorandum of association, articles of association, certificate
of
incorporation, by laws, certificate of designation or other similar
constitutional documents of an entity.
Related
Party shall
mean (1)
a
director or an officer of the Company or a nominee to become a director of
the
Company; (2) a shareholder of the Company which owns 5% or more of its issued
share capital; (3) a family member of the first degree of any of the foregoing
persons; and (4) an Affiliate of any of the foregoing.
Related
Party Transaction shall
mean any transaction of the Company or of a subsidiary of the Company with
a
Related Party.
| 7.1. |
Composition
of the Board of Directors.
The Board of Directors of the Company shall consist of 6 members.
Each
Party shall be entitled to recommend the appointment of two (2) directors
and one (1) independent director to the Board of Directors of the
Company
and to recommend removing and replacing its respective proposed
directors, subject to any applicable law.
|
| 7.2. |
The
Parties shall use their best efforts to ensure that the candidates
recommended pursuant to Section 7.1
above
shall be appointed as directors of the Company or be removed, as
the case
may be, and that such recommended directors shall constitute the
only
members of the Board of Directors of the
Company.
|
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| 7.3. |
Chairman
of the Board.
During a period of five (5) years commencing on the date in which
the
Parties jointly acquire Control over the Company, Mr. Xxxxxx Xxxxxxx
shall
be appointed as the Chairman of the Board of the Company. At the
expiration of such five (5) years period the Parties shall agree
upon the
identity of the successor Chairman of the Board of the Company. If
Mr.
Xxxxxxx is unable to perform his duty due to physical or mental incapacity
and such inability continues for a period of at least 6 consecutive
months, then in such an event the Parties shall agree upon the identity
of
the successor Chairman of the Board of the Company.
|
| 7.4. |
Casting
Vote.
In the event the number of Directors voting for the adoption of a
resolution by the Board of Directors equals the number of Directors
voting
against such resolution, then so long as (i) Xxxxxxx holds Restricted
Shares constituting at least 25.05% of the outstanding shares of
the
Company; and (ii) Mr. Xxxxxx Xxxxxxx serves as the Chairman of the
Board,
the Chairman of the Board shall have a casting vote (the “Casting
Vote”).
Notwithstanding anything to the contrary, in case Mr. Xxxxxx Xxxxxxx
elects to exercise his Casting Vote in respect of a specific resolution
brought before the Board of Directors (the “Triggering
Resolution”),
then (i) prior to such exercise, Xxxxxxx shall be required to trigger
the
Buy Me Buy You mechanism provided in Section 6
hereof as an Offering Party, whereby the Triggering Resolution will
be
pending until the consummation of the sale of the Restricted Shares
of one
party to the other party in accordance with such Buy Me Buy You mechanism;
and (b) in the event that three (3) directors of the Company so require,
the Triggering Resolution shall be conditioned upon the approval
of the
General Meeting of the Company. Upon a transfer of the Restricted
Shares
by Xxxxx to third party in accordance with the terms of
this
Agreement, the Casting Vote shall expire and the provisions of this
Section 7.4
shall be terminated. For the avoidance of doubt it is hereby clarified
that Xxxxxxx shall be entitled to trigger the Buy Me Buy You mechanism
provided in Section 6
hereof as Offering Party, in accordance with this Section 7.4,
even prior to January 1, 2009.
|
| 7.5. |
Scope
of Authority of the General Meeting.
In addition to those decisions which, under the Organizational Documents
of a Company, require approval of the General Meeting of its shareholders,
the Parties shall use their best efforts to cause the Articles of
the
Company to be amended so that a decision or action by or on behalf
of the
Company on any of the following matters, shall require the approval
of
holders of 50.1% or more of the outstanding shares of the Company,
if so
requested by any two (2) members of the Company’s Board of
Directors:
|
| 7.5.1. |
Related
Party Transactions;
|
| 7.5.2. |
any
amendment of the Company’s incorporation documents;
|
| 7.5.3. |
any
merger or consolidation of the Company;
|
| 7.5.4. |
any
material change in the Company’s scope of
business;
|
| 7.5.5. |
the
voluntary liquidation or dissolution of the Company;
|
-6-
| 7.5.6. |
approval
of the Company’s annual budget and business plan, and any material
deviation therefrom; and
|
| 7.5.7. |
any
change of the signatory rights on behalf of the
Company.
|
| 7.6. |
The
Parties shall vote all the Company’s shares held by them (whether
Restricted Shares or otherwise) as provided in this Agreement and
where
this Agreement is silent as the Parties shall agree prior to any
General
Meeting of the Company as to their vote. In the event the Parties
do not
reach an agreement regarding certain resolution proposed to the General
Meeting, The Parties shall vote all of their respective Shares against
such proposed resolution.
|
| 8. |
No
Agreements with Other Shareholders:
|
During
the Term, each Party shall be prohibited from entering into, or otherwise
being
a party to, any Shareholders Agreement with any direct or indirect shareholder
of the Company. Each Party represents to the other Party that as of the date
of
closing of the purchase of the Company’s shares by the parties from the
Fortissimo Entities it shall not be a party to any other Shareholders Agreement.
“Shareholders
Agreement”
means
any voting or similar agreement, or any agreement relating to the exercise
of
voting rights in the Company, or any similar undertaking or commitment
(including a unilateral commitment), whether in the form of a written instrument
or otherwise.
| 9. |
Term
of the Agreement:
|
| 9.1. |
This
Agreement shall come into effect as of the date hereof and shall
be in
full force and effect so long as (a) the Parties hold controlling
interest
in the Company, or (b) each of the Parties or its successor as provided
in
Section 4.4
hold all (but not a part) of its Restricted Shares (the “Term”).
|
| 9.2. |
Upon
exercise of the pledge on each Party’s Restricted Shares provided by such
Party to Discount Bank for financing the purchase thereof, this Agreement
shall be automatically terminated.
|
| 10. |
Miscellaneous:
|
| 10.1. |
The
Parties undertake that as soon as possible after the acquisition
of the
Control over the Company, they shall cause the Articles of the Company
to
be amended so that the revised Articles shall reflect the applicable
provisions of this Agreement.
|
| 10.2. |
Unless
the context otherwise requires, this Agreement shall apply to all
Securities which are or may be held by either Party during the term
of
this Agreement.
|
| 10.3. |
Each
of the Parties shall perform such further acts and execute such further
documents as may reasonably be necessary to carry out and give full
effect
to the provisions of this Agreement and the intentions of the parties
as
reflected hereby.
|
| 10.4. |
This
Agreement shall be governed by the laws of the State of Israel, without
regard to the conflict of law provisions thereof. Any dispute arising
under or with respect to this Agreement shall be resolved exclusively
in
the appropriate court in Tel Aviv,
Israel.
|
-7-
| 10.5. |
All
notices required or permitted hereunder to be given to a Party pursuant
to
this Agreement shall be in writing and shall be deemed to have been
duly
given to the addressee thereof (i) if hand delivered, on the day
of
delivery, (ii) if given by facsimile transmission, on the business
day on
which such transmission is sent and confirmed, or (iii) if delivered
by
air mail, five business days following the date it was sent, to such
Party’s address as set forth below or at such other address as such Party
shall have furnished to the other Party in writing in accordance
with this
provision:
|
If
to
Xxxxx:
Xxxxx
Joint Investments (2005) Limited Partnership
00
Xxxxxxxx Xxxxxx
Xxx
Xxxx
00000
Israel
(c/o Erdinast, Xxx Xxxxxx & Co., Advocates)
Attention:
Xxxxxxx Xxxxxxx
Fax:
(000) 0-000-0000
With
a
Copy to:
Goldfarb,
Levy, Eran, Meiri, Tzafrir & Co.
0
Xxxxxxxx Xxxxxx
Xxx
Xxxx
00000
Xxxxxx
Attention:
Xxxx Xxxxx, Adv. & Ido Gonen, Adv.
Fax:
(000) 0-0000000
If
to
Xxxxxxx:
x/x
Xxxxx
& Xx. Xxx Xxxxxxx
00Xxxxxxx
Xxxxxx
Xxx
Xxxx
00000
Israel
Attention:
Ram Caspi, Adv.
Fax:
x000-0-000-0000
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| 10.6. |
Subject
to Sections 7.3
and 7.4
above,
nothing contained in this Agreement shall be deemed to grant any
right to
any person or entity that is not a party to this
Agreement.
|
| 10.7. |
Whenever
possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law but if any
provision of this Agreement is held by a court of competent jurisdiction
to be unenforceable under applicable law, then such provision shall
be
excluded from this Agreement and the remainder of this Agreement
shall be
interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms; provided, however, that in such event
this
Agreement shall be interpreted so as to give effect, to the greatest
extent consistent with and permitted by applicable law, to the meaning
and
intention of the excluded provision as determined by such court of
competent jurisdiction.
|
| 10.8. |
Section
headings contained in this Agreement are inserted for convenience
of
reference only, shall not be deemed to be a part of this Agreement
for any
purpose, and shall not in any way define or affect the meaning,
construction or scope of any of the provisions
hereof.
|
| 10.9. |
This
Agreement together with the documents expressly referred to herein,
constitute the entire agreement among the Parties with respect to
the
subject matter contained herein and supersedes all prior agreements
and
understandings among the Parties with respect to such subject
matter.
|
| 10.10. |
No
modification, amendment or waiver (each, a “Modification”)
of any provision of this Agreement will be effective unless such
Modification is approved in writing by all Parties. The failure of
any
Party to enforce any of the provisions of this Agreement will in
no way be
construed as a waiver of such provisions and will not affect the
right of
such Party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
|
| 10.11. |
This
Agreement may be executed in any number of counterparts, each of
which
shall be deemed to be an original and all of which together shall
constitute one and the same document.
|
[Signature
Page Follows]
-9-
IN
WITNESS WHEREOF,
the
Parties have executed this Agreement as of the date first above
written.
| Xxxxx Joint Investments (2005) Limited Partnership | ||||
| By:
XXXXX INVESTMENTS LTD. Its General Partner |
||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
|
Name: Xxxxxxxx Xxxxxxx |
||||
| Title: Director | ||||
| By: | /s/ Ran Xxxxxxxx | |||
|
Name: Ran Xxxxxxxx |
||||
| Title: Director |
| S.Xxxxxxx Investments (2008) Ltd. | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
|
Name: Xxxxxx Xxxxxxx |
||||
| Title: Director | ||||
[Signature
Page to Shareholders Agreement dated March 24, 2008]
-10-
