Form of Warrant Agreement, dated March 31, 2004 between the Registrant and the Placement Agent (Matthew Norton)
Exhibit 4.14
Form of Warrant Agreement, dated March 31, 2004
between the Registrant and the Placement Agent (Xxxxxxx Xxxxxx)
WARRANT
THIS WARRANT AND THE ORDINARY SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT (the "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (the "SECURITIES ACT") OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAW, AND THE WARRANT MAY NOT BE EXERCISED AND THE WARRANT AND THE ORDINARY SHARES ISSUABLE UPON EXERCISE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, ASSIGNED OR HYPOTHECATED, UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT COVERING THIS WARRANT AND/OR SUCH SECURITIES, OR THE HOLDER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THE WARRANT AND/OR SUCH SECURITIES SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, TRANSFER, PLEDGE, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE LAW.
to purchase
Ordinary Shares
of
NUR MACROPRINTERS LTD.
at a price of $0.62 per share
VOID AFTER 17:00 p.m. (prevailing Tel Aviv time)
On the Expiration Date (as hereinafter defined)
in favor of
March 31, 2004
NUR MACROPRINTERS LTD., an Israeli company with its principal offices at 00 Xxxx Xxxxxx Xxxxxx Xxxxxx, Xxx, Xxxxxx (the "Company"), hereby grants to Xxxxxxx Xxxxxx (the "Holder"), the right to purchase, subject to the terms and conditions hereof, up to three thousand (3,000) of the Company's Ordinary Shares, par value NIS 1.00 per share ("Ordinary Shares"), exercisable at any time from time to time, on or after the date hereof (the "Effective Date"), and until the fifth anniversary of such date (the "Expiration Date").
Hereinafter: (i) the Ordinary Shares purchasable hereunder or any other securities which may be issued by the Company in substitution therefor, are referred to as the "Warrant Shares"; (ii) the price of sixty two cents ($0.62) payable hereunder for each of the Warrant Shares, as adjusted in the manner set forth hereinafter, is referred to as the "Exercise Price" and (iii) this Warrant and all warrants hereafter issued in exchange or substitution for this Warrant are referred to as the "Warrants". The Exercise Price and the number of Warrant Shares are subject to adjustment as hereinafter provided.
1. Warrant Period; Exercise of Warrant
1.1. (a) |
This Warrant may
be exercised in whole at any time, or in part from time to time, beginning
on the date hereof
until the Expiration Date (the "Warrant Period"),
by the surrender of this Warrant (with a duly executed exercise form
in the form attached at the end hereof as Exhibit
A), along with the Exercise Certificate
or the Exercise Opinion (each as defined in Section 1.1(b) below), at the
principal office of the Company, set forth above, together with proper
payment of the Exercise Price multiplied by the number of Warrant Shares
for which the Warrant is being exercised. Payment for Warrant Shares shall
be made by certified or official bank check or checks, payable to the order
of the Company or by wire transfer to an account to be designated in writing
by the Company. Payments shall be made in United States dollars. |
(b) |
In addition
to the method of exercise set forth in Section 1.1(a) hereof, each Holder
shall have the right to exercise the Warrant in whole or in part and,
upon such exercise, to receive for each Warrant surrendered a fraction
of one Ordinary Share as shall be determined by the formula set forth
below, with no cash payment required other than a payment of Equivalent
Par Value (as defined below) for each Ordinary Share issued upon the
exercise of the
Warrant in accordance with this Section 1.1(b). The number of Ordinary Shares
the Holder shall be entitled to receive shall upon the exercise of the
Warrant and surrender of the related warrant certificate in accordance
with this Section 1.1(b) shall be equal to the product of (x) the total
number of Ordinary Shares exchangeable for the Warrants being exercised
(assuming exercise in accordance with Section 1.1(a)) multiplied by
(y) a fraction, the numerator of which is the aggregate Market
Price (as defined below) of such Ordinary Shares plus Equivalent Par Value
less the aggregate Exercise Price therefore, and the denominator of
which is such aggregate Market Price. Upon exercise of the Warrants
pursuant to this Section 1.1(b), the warrants so exercised shall no
longer be exercisable. Solely for the purpose of this paragraph, "Equivalent Par Value" shall
be an amount in U.S. Dollars equal to NIS 1.0 based on the Representative
Rate of the U.S. Dollar as published by the Bank of Israel on the date
of payment. Solely for the purposes of this paragraph, Market Price
shall be calculated as the average of the five trading days immediately
preceding the date on
which the form of exercise attached (Exhibit A) is deemed to have been sent
to the Company. For the purposes of this paragraph, "Market Price" shall
be deemed to be the last reported sale price of the Ordinary Shares,
or if no such reported sale takes place on such day, the average of
the last reported sale prices for the last three (3) trading days. |
(c) |
The Holder of a Warrant, by its acceptance thereof, covenants and agrees that the Warrants described herein are being acquired as an investment and not with a view to the distribution thereof and such Holder
further covenants |
| and agrees that
it will not sell, transfer, pledge, assign, or hypothecate the Warrant
or the ordinary shares issueable upon exercise of the Warrant unless
there is an effective registration statement under the Securities Act
of 1933 covering the Warrant or the ordinary shares issueable upon
exercise of the Warrant, or the Holder of the Warrant and/or the ordinary
shares receives an opinion of counsel satisfactory to the Company stating
that such sale, transfer, pledge, assignment, or hypothecation is exempt
from the registration and prospectus delivery requirements of the Securities
Act of 1933 and the qualification requirements under applicable law. |
|
1.2. |
If this Warrant should be exercised
in part, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the Holder
to purchase the remainder of the Ordinary Shares purchasable hereunder.
The Company shall pay any and all expenses, taxes and other charges that
may be payable in connection with the issuance of the Warrant Shares
and the preparation and delivery of share certificates pursuant to this
Section 1 in the name of the Holder (including without limitation the
applicable stamp duty), and to the extent required, the execution and
delivery of a new Warrant, provided, however, that the Company shall
only be required to pay taxes which are due as a direct result of the
issuance of the Ordinary Shares or other securities, properties or rights
underlying such Warrants (such as the applicable stamp duty), and will
not be required to pay any tax which may be (i) due as a result of the
specific identity of the Holder or (ii) payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name
other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company
that such tax has been paid. |
1.3. |
No fractions of Ordinary Shares shall be issued in connection with the exercise of this Warrant, and the number of Ordinary Shares issued shall be rounded down to the nearest whole number. Upon the issuance of Ordinary Shares resulting from the exercise in whole or in part of this Warrant, the Company shall deliver to the Holder an irrevocable letter of instructions to the Company's transfer agent to issue as soon as is reasonably practicable to the Holder share certificates reflecting the Warrant Shares exercised thereby, together with any and all other documents required for the issuance of such certificates by the transfer agent. |
| 2. Reservation of Shares | |
The Company covenants that: (i) at all times during
the Warrant Period it shall have in reserve, and will keep available solely
for issuance or delivery upon exercise of the Warrant, such number of Ordinary
shares as shall be issuable upon the exercise thereof, and (ii) upon exercise
of the Warrant and payment of the Exercise Price therefor, the Warrant
Shares issuable upon such exercise will be validly issued, fully paid,
non |
|
| assessable, free and clear from any lien, encumbrance, pledge or any other third party right and not subject to any preemptive rights. |
3. Adjustments to Exercise Price and Number of Securities
3.1.
|
Subdivision and Combination.
In case the Company shall at any time subdivide or combine the outstanding
Ordinary Shares, the Exercise Price shall forthwith be proportionately
decreased in the case of subdivision or increased in the case of combination. |
| 3.2. | Stock Dividends and Distributions.
In case the Company shall pay a dividend on, or make a distribution of,
Ordinary Shares or of the Company's capital stock convertible into Ordinary
Shares, the Exercise Price shall forthwith be proportionately decreased.
An adjustment made pursuant to this Section 3.2 shall be made as of the
record date for the subject stock dividend or distribution. |
| 3.3. | Adjustment in Number of Securities.
Upon each adjustment of the Exercise Price pursuant to the provisions
of this Section 3, the number of Ordinary Shares issuable upon the exercise
of each Warrant shall be adjusted to the nearest full amount by multiplying
a number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Ordinary Shares issuable upon exercise of
the Warrants immediately prior to such adjustment and dividing the product
so obtained by the adjusted Exercise Price. |
| 3.4. | Definition of Ordinary Shares.
For the purpose of this Warrant, the term "Ordinary Shares" shall mean
(i) the class of stock designated as Ordinary Shares in the Articles
of Association of the Company as may be amended as of the date hereof,
or (ii) any other class of stock resulting from successive changes
or reclassifications of such Ordinary Shares consisting solely of changes
in nominal value, or from nominal value to no nominal value, or from
no nominal value to nominal value. |
| 3.5. | No Adjustment of Exercise Price in Certain Cases. No
adjustment of the Exercise Price shall be made if the amount of said
adjustment shall be less
than 2 cents ($.02) per Ordinary Share, provided, however, that 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 of and
together with the next subsequent adjustment which, together with
any
adjustment so carried forward, shall amount to at least 2 cents ($.02)
per Ordinary Share. |
| 3.6. | Merger or Consolidation.
In case of any consolidation of the Company with or merger of the Company
with, or merger of the Company into, (other than a merger which does
not result in any reclassification or change of the outstanding Ordinary
Shares), the Company shall cause the corporation formed by such consolidation
or merger to execute and deliver to the Holder a supplemental warrant
agreement providing that the Holder of the Warrant then outstanding or
to be outstanding shall have the right thereafter (until the expiration
of such Warrant) to receive, upon exercise of such Warrant, the kind
and amount of shares of stock and other |
securities
and property receivable upon such consilidation or merger, by a holder
of the number of Ordinary Shares of the Company for which such Warrant
might have been exercised immediately prior to such consolidation,
merger, sale or transfer. Such supplemental warrant agreement shall
provide for adjustments which shall be identical to the adjustments
provided in Section 3. The above provision of this Subsection shall
similarly apply to successive consolidations or mergers.
|
| 4. |
Notices to Warrant Holders. Nothing contained in this Warrant shall be construed as conferring upon the Holder the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of directors or any other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any time prior to the Expiration Date, any of the following
events shall occur: |
|
(a) |
the Company shall take a record of the holders of its Ordinary Shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or |
|
(b) |
the Company shall offer to all the holders of its Ordinary Shares any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company,
or any option, right or warrant to subscribe therefor; or |
|
(c) |
a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall
be proposed; |
|
| then, in any one or more of said events,
the Company shall give to the Holder written notice of such event at least
fifteen (15) days prior to the date fixed as a record date or the date
of closing the transfer books for the determination of the stockholders
entitled to such dividend, distribution, convertible or exchangeable securities
or subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. |
||
| 5. |
Non-Transferability |
|
| (a) |
The Holder
covenants and agrees that the Warrants are being acquired as an investment
and not with a view to the distribution thereof. The Holder shall not
sell, transfer, assign, encumber, pledge or otherwise dispose or undertake
to dispose of ("Sell")
the Warrants until the first anniversary of the Effective Date. Thereafter,
the Holder may, subject to applicable securities laws, Sell, all or
any portion of the Warrants, provided that the Holder may only Sell
the Warrants on two occasions, to no more than five (5) transferees
on each occasion, provided further that on the second such occasion
the Holder shall reimburse the Company with
any and all direct costs incurred by the Company connected with such sale,
transfer or assignment including any reasonable registration costs. |
|
| (b) |
Unless registered, the Warrant Shares issued upon exercise of the Warrants shall be subject to a stop transfer order and the certificate or certificates evidencing such Warrant Shares shall bear legend substantially similar to the following: |
| "THE SHARES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, PURSUANT TO A REGISTRATION STATEMENT. ACCORDINGLY,
SUCH SHARES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO A REGISTRATION
STATEMENT UNDER SUCH ACT, OR AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT." |
6. |
Loss, etc. of Warrant |
Upon receipt of evidence satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant,
and of indemnity reasonably satisfactory to the Company, if lost, stolen
or destroyed, and upon surrender and cancellation of this Warrant, if
mutilated, and upon reimbursement of the Company's reasonable direct expenses,
the Company shall execute and deliver to the Holder a new Warrant of like
date, tenor and
denomination. |
|
7. |
Registration Rights |
Holders of the Ordinary Shares shall be
entitled to registration rights pursuant to the Registration Rights Agreement
attached hereto as Exhibit B. |
|
8. |
Headings |
The headings of this Warrant have been
inserted as a matter of convenience and shall not affect the construction
hereof. |
|
9. |
Notices |
Unless otherwise provided, any notice
required or permitted under this Warrant shall be given in writing and
shall be deemed effectively given upon personal delivery to the party
to be notified or seven (7) days after deposit with the Post Authority,
for dispatch by registered or certified mail, postage prepaid and addressed
to the Holder at the address set forth in the Company's books and to the
Company at the address of its principal offices set forth above, or when
given by telecopier or other form of rapid written communication, provided
that confirming copies are sent by such airmail. |
| 10. |
Governing Law |
This Warrant shall
be governed by and construed and enforced in accordance with the laws
of the State of Israel
(regardless of the laws that might otherwise govern under applicable
Israel principles of conflicts of law). Anything to the contrary notwithstanding,
the provisions of this Section 10 shall not apply to the Registration
Rights schedule, which shall be subject to the provisions thereof. |
|
| 11. |
Entire Agreement; Amendment and Waiver |
This Warrant and the schedule hereto constitute the
full and entire understanding and agreement between the parties with regard
to the subject matters hereof and thereof. Any term of this Warrant may
be amended and the observance of any term hereof may be waived (either
prospectively or retroactively and either generally or in a particular
instance) only with the written consent of both the Holder
and the Company. |
IN WITNESS WHEREOF, the Company has caused this Ordinary Share Purchase Warrant to be executed as of the date first written above.
By: ________________________
Name: Xxxxx Xxxx
Title: Chief Executive Officer
Agreed and Accepted:
_____________________
Xxxxxxx Xxxxxx
Exhibit A
Warrant Exercise Form
Date: ____________________
Re: Exercise of Warrant
The undersigned hereby irrevocably elects to exercise the attached Warrant to the extent of ___________________ Ordinary Shares of Nur Macroprinters Ltd. all in accordance with section 1.1(b) of the Warrant. Payment to the Company of the total purchase price for such shares has been made simultaneously with the delivery of this exercise of warrant. The undersigned requests that certificates for such Ordinary Shares be registered in the name of ____________________ whose address is ____________________ and that such certificates be delivered to whose address is _____________________________ .
By: ___________________
Exhibit B
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of the 31 day of March, 2004 (the "Effective Date") by and among NUR Macroprinters Ltd., a company organized under the laws of the State of Israel, registered under number 00-000000-0, with offices at 00 Xxxx Xxxxxx Xxxxxx Xxxxxx, Xxx, Xxxxxx (the "Company"); and the Investors listed on Schedule 1 hereto, each such Investor being an ‘accredited investor’, as defined in Regulation §230.501 under the Securities Act (defined below). Each Investor is referred to in this Agreement as a "Holder", and collectively as the "Holders".
RECITALS:
WHEREAS |
the Company and Rockwood,
Inc. (the "Placement Agent")
entered on _________ , 2003 into a letter agreement (the "Letter
Agreement") pursuant to which the Placement
Agent rendered to the Company certain financial services in connection
with the Convertible Loan secured by the Company on October 2003 (the "Convertible
Loan"); |
| WHEREAS | the Letter Agreement provides, among others, that upon conversion of the Convertible Loan or a portion thereof, the Company will grant the Placement Agent warrants (the "Warrants") exercisable into Ordinary Shares of the Company, of nominal value NIS 1.00 each (the "Conversion Shares"); and |
| WHEREAS | the Letter Agreement further provides that the Conversion Shares shall have piggyback registration rights; and |
| WHEREAS | the Placement Agent assigned its rights for the Warrants to the Holders; and |
| WHEREAS | the Company hereby undertakes to register the Conversion Shares under the terms and subject to the condition set forth in this Agreement. |
NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows:
| 1. | Definitions. |
Unless otherwise defined herein, all capitalized terms
shall have the meanings ascribed thereto in the Warrants. As used herein,
the following terms have the following meanings: |
|
| "Commission" refers to the Securities and Exchange Commission. | |
| "Effective Date" means the date of the closing of the Convertible Loan. |
"Register", "registered",
and "registration" refer
to a registration effected by filing a registration statement in compliance
with the Securities Act and the declaration or ordering by the Commission
of effectiveness of such registration statement, or the equivalent
actions under the laws of another jurisdiction. |
|
| "Registrable Shares" means
the Conversion Shares issued or issuable to the Holders upon exercise
of the Warrants. |
|
| "Securities Act" shall
mean the U.S. Securities Act of 1933, as amended, or any similar federal
statute, and the rules and regulations of the Commission thereunder,
all as
the same shall be in effect at the time. |
| 2. |
Incidental Registration. |
|
| If the Company at any time following the Effective Date, proposes to register any of its securities, (other than a registration statement on Form S-8 or any successor form for securities to be offered to employees of the Company pursuant to any employee benefit plan or a registration statement on form F-4 or any other successor form), for its own account or for the account of any other person, it shall give notice to the Holders of such intention. Upon the written request of Holders, given within twenty (20) days after receipt of any such notice, the Company shall include in such registration all of the Registrable Shares indicated in such request, so as to permit the disposition of the shares so registered in the manner requested by the Holders. Notwithstanding any other provision of this Section 2, with respect to an underwritten public offering by the Company, if the managing underwriter advises the Company in writing that marketing or other factors require a limitation of the number of shares to be underwritten, then there shall be excluded from such registration and underwriting to the extent necessary to satisfy such limitation, shares held by the Holders and by other shareholders of the Company who are entitled to have their shares included in such registration, pro rata among them to the extent necessary to satisfy such limitation. To the extent Registrable Shares are excluded from such underwriting, the Holders shall agree not to sell their Registrable Shares included in the registration statement for such period, not to exceed 180 days, as may be required by the managing underwriter, and the Company shall keep effective and current such registration statement for such period as may be required to enable the Holders to complete the distribution and resale of their Registrable Shares. Notwithstanding the provisions of this Section 2, the Company shall have the right at any time after it shall have given notice to the Holders, to elect not to file any such proposed registration statement; provided, however, that each key officer and director of the Company and each person who, at the time of the proposed filing of such public offering, beneficially owns 1% or more of the outstanding capital stock of the Company, on a fully-converted, fully-diluted basis, shall enter into the same agreement. | ||
| 3. |
Termination of Registration Rights. |
|
| 3.1. | The Holders shall not be entitled to exercise
any right provided for in Section 2 hereof, after four (4) years following
the Effective Date. |
|
| 3.2. | In addition, the right of
the Holders to request registration pursuant to Section 2 shall terminate
upon such date that all Registrable Shares held or entitled to be held
upon exercise by the Holders may be sold under Rule 144(k) (or any successor
rule). |
| 4. |
Designation of Underwriter. |
|
The Company
shall have the right to designate the managing underwriter. |
||
| 5. |
Expenses. |
|
| All expenses incurred in connection with any registration under Section 2 shall be borne by the Company, provided however, that the Holders shall pay their pro rata portion of the discounts payable to any underwriter. | ||
| 6. |
Indemnities. If any Registrable Shares are included in a registration statement pursuant to this Agreement: |
|
| 6.1. |
The Company
will indemnify and hold harmless, to the fullest extent permitted by
law,
each Holder, any underwriter (as
defined in the Securities Act) for such Holder, and each person, if
any, who controls such Holder or such underwriter (collectively and individually
referred to as the "Indemnified Party"),
from and against any and all losses, damages, claims, liabilities, joint
or several, costs, and expenses (including any amounts paid in any settlement
effected with the Company’s consent, which consent will not be
unreasonably withheld) to which such Indemnified Party may become subject
under applicable
law or otherwise, insofar as such losses, damages, claims, liabilities
(or actions or proceedings in respect thereof), costs, or expenses
arise out of are based upon (i) any untrue statement or alleged untrue
statement
of any material fact contained in the registration statement or included
in the prospectus, as amended or supplemented (including, in each case,
all documents incorporated by reference therein, as such documents
may have been updated by later dated documents), or (ii) the omission
or
alleged omission to state therein a material fact required to be stated
therein
or necessary to make the statements therein, in light of the circumstances
in which they are made, not misleading or
(iii) any violation or alleged violation by the Company of the Securities
Act or the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), or any rules or regulations promulgated
thereunder, and the Company will reimburse each Indemnified Party,
promptly upon demand, for any reasonable legal or any other expenses
incurred
by them in connection with investigating, preparing to defend, or defending
against, or appearing as a third-party witness in connection with such
loss, claim, damage, liability, action, or proceeding; provided, however, that
the Company will not be liable in any such case to the extent that any
such loss, damage, liability, cost, or expense arises solely out of or
is based solely upon an untrue statement or alleged untrue statement, or
omission or alleged omission, so made in conformity with information furnished
to the Company by the Indemnified Party, in writing, |
|
specifically for inclusion therein; provided, further, that
this indemnity shall not be deemed to relieve any underwriter of any
of its due diligence obligations; and provided, further, that
the indemnity agreement contained in this Section 6.1 shall not apply
to amounts paid in settlement of any such claim, loss, damage, liability,
or action if such settlement is effected without the Company’s
consent, which consent will not be unreasonably withheld. Such indemnity
shall
remain in full force and effect regardless of any investigation made
by or on behalf of the Indemnified Party, and regardless of any sale
in connection with such offering by such Holder. Such indemnity shall
survive the transfer of securities by a Holder. |
||
|
6.2.
|
Each
Holder participating in a registration hereunder will indemnify and
hold harmless the Company its Executive Officers, Directors, any underwriter
for the Company, and each person, if any, who controls the Company
or such
underwriter (collectively and individually, the "Indemnifiable
Parties"), from and against any and all losses,
damages, claims, liabilities, costs, or expenses (including any amount paid in
any settlement effected with such Holder’s consent, which consent will not
be unreasonably withheld) to any Indemnifiable Party may become subject under
applicable law or otherwise, insofar as such losses, damages, claims, liabilities
(or actions or proceedings in respect thereof), costs, or expense arise out of
or are based on (i) any untrue statement or
alleged untrue statement of any material fact contained in the registration statement
or included in the prospectus, as amended or supplemented (including,
in each case, all documents incorporated by reference therein, as such documents
may have been updated by later dated documents), or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they are
made, not
misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act
or the Securities and Exchange Act, or any rules or regulations promulgated thereunder
and such Holder will reimburse each Indemnifiable Party, promptly upon demand,
for any reasonable legal or other expenses incurred by such Indemnifiable Party
in connection with investigating, preparing to defend, or defending against,
or appearing as a third-party witness in connection with such loss, claim, damage,
action, or proceeding; in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged omission
was so made in conformity with written information furnished by such Holder specifically
for inclusion therein. The foregoing indemnity agreement is subject to the condition
that, insofar as it relates to any such untrue statement (or alleged untrue statement),
or omission (or alleged omission) made in the preliminary prospectus but eliminated
or remedied in the amended prospectus at the time the registration statement
becomes effective in the final prospectus, such indemnity agreement shall not
inure to the benefit of (i) the Company, and (ii) any underwriter, if a copy
of the final prospectus was not furnished to the person or entity asserting the
loss, liability, claim, or damage at or prior to the time such furnishing is
required by the Security
Act; provided, further,
that this indemnity shall not be deemed to relieve any underwriter of any of
its due diligence obligations; provided,
further, that the indemnity agreement contained
in this
|
Section 6.2 shall
not apply to amounts paid in settlement of any such claim loss, damage,
liability, or action if such settlement is effected without the consent
of such Holder, as the case may be, which consent shall not be unreasonably
withheld; and provided, further, that the maximum amount of liability
in respect of such indemnification shall be limited, in the case of
each Holder, to an amount equal to the net proceeds actually received
by such Holder from the sale of Registrable Shares sold pursuant to
such registration.
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6.3.
|
Promptly after receipt by an Indemnified and/or Indemnifiable Party pursuant to the provisions of Section 6.1 or 6.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such Indemnified and/or Indemnifiable Party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 6.1 or 6.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party shall only relieve it from any liability which it may have to any Indemnified and/or Indemnifiable Party to the extent that such indemnifying party has been damaged by such omission to notify hereunder. In case such action is brought against any Indemnified and/or Indemnifiable party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such Indemnified or Indemnifiable Party; provided, however, that if the defendants in any action include both the Indemnified or Indemnifiable Party and the indemnifying party and if in the reasonable judgment of the Indemnified or Indemnifiable party there are separate defenses that are available to the Indemnified or Indemnifiable party or there is a conflict of interest which would prevent counsel for the indemnifying party from also representing the Indemnified or Indemnifiable party, the Indemnified or Indemnifiable Party(ies) shall have the right to select, at the expense of the indemnifying party, separate counsel to participate in the defense of such action; provided, further, however, that if the Holders are the Indemnified Party, the Holders shall be entitled to one (1) separate counsel at the expense of the Company and if underwriters are also Indemnified parties who are entitled to counsel separate from the indemnifying party, then all underwriters as a group shall be entitled to one (1) separate counsel at the expense of the Company. After notice from the indemnifying party of its election so to assume the defense thereof, the indemnifying party will not be liable to such Indemnified or Indemnifiable Party pursuant to the provisions of said Section 6.1 or 6.2 above for any legal or other expense subsequently incurred by such Indemnified or Indemnifiable Party in connection with the defense thereof, unless (i) the Indemnified or Indemnifiable Party shall have employed counsel in accordance with the provision of the preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the Indemnified or Indemnifiable Party to represent the same within a reasonable time after the notice of the commencement of the action and within fifteen (15) days after written notice of the Indemnified or Indemnifiable Party’s intention to employ separate counsel pursuant to the |
previous sentence,
(iii) the indemnifying party has authorized the employment of counsel
for the Indemnified or Indemnifiable Party at the expense of the indemnifying
party, or (iv) the indemnifying party has authorized the employment
of counsel but such party or counsel fails to vigorously defend the
action. No indemnifying party will consent to entry of any judgment
or enter into any settlement, which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified
or Indemnifiable Party of a release from all liability in respect to
such claim or litigation.
|
||
|
6.4.
|
If recovery is not available under the foregoing indemnification provisions, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the parties’ relative knowledge and access to information concerning the matter with respect to which the right to indemnification was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable consideration appropriate under the circumstances. In no event shall any party that is found liable for fraudulent misrepresentation within the meaning of Section 1(f) of the Securities Act be entitled to contribution hereunder from any party not found so liable. |
|
| 7. | Obligations of the
Company. Whenever
required under this Agreement to effect the registration of any Registrable
Shares, the Company shall, as
expeditiously as possible: |
|
| 7.1. | Prepare and file with the Commission
a registration statement with respect to such Registrable Shares and
use its best efforts to cause such
registration statement to become effective with
the Commission or pursuant to the Blue Sky laws of such jurisdictions as shall
be reasonably requested by the Holders, and, upon the request of the Holders
of the majority of the Registrable Shares registered thereunder, keep such registration
statement effective for a period of up to two (2) years for any registration
under Form F-3 (which shall be kept effective subject to the provisions of Rule
415), or for nine (9) months for any registration under F-1, or if sooner until
the distribution contemplated in the registration statement has been completed. |
|
| 7.2. | Prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may
be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Shares covered by such
registration statement. |
|
| 7.3. | Furnish to the Holders and each duly
authorized underwriter such numbers of copies of a prospectus, including
a preliminary prospectus, in conformity with the requirement of the Securities
Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable
Shares owned by the Holders. |
|
| 7.4. | In the event of any underwritten
public offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter
of such offering. Each Holder participating in such underwriting shall
also enter into and perform its obligations under
such agreement. |
|
| 7.5. | Notify each Holder of Registrable Shares covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly amend such prospectus by filing a post effective supplement so that such prospectus does not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and deliver copies thereof to the Holder. | |
| 7.6. | Cause all Registrable Shares registered
pursuant hereunder to be listed on each securities exchange or Nasdaq
on which similar securities
issued by the Company are then listed. |
|
| 7.7. | Provide a transfer agent and registrar
for all Registrable Shares registered pursuant to this Agreement and
a CUSIP number for all such Registrable Shares, in each case not later
than the effective date of such registration. |
|
| 7.8. | Furnish, at the request of any Holder,
on the date that such Registrable Shares are delivered to the underwriters
for sale in connection with a registration pursuant to this Agreement,
if such securities are being sold through underwriters, or, if such securities
are not being sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective, (i) an opinion,
dated such date, of the counsel representing the Company for the purposes
of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to such Holder, and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering addressed to the underwriters,
if any, and to such
Holder. |
|
| 7.9. | Promptly notify each Holder, if the
Holder is selling Registrable Shares covered by a registration statement,
of the issuance by the Commission of any stop order suspending the effectiveness
of the registration statement or the initiation of any proceedings for
that purpose. The Company shall use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of the registration
statement. |
|
| 7.10. | Conditions to Registration. The Company shall not be obligated to effect the registration of the Registrable Shares pursuant to this Agreement unless the Holders participating therein consent to customary conditions of a reasonable |
| nature that are imposed by
the Company, including, but no limited to, the following: |
|||
(a) |
Conditions requiring the Holders to comply with all applicable provisions of the Securities Act and the Exchange Act, including, but not limited to, the prospectus delivery requirements; and |
||
(b) |
Conditions prohibiting the Holders, upon receipt of written notice from the Company that it is required by law to correct or update the registration statement or prospectus, from effecting sales of the
Registrable Shares until the Company has completed the necessary correction or updating. |
||
| 8. |
Customary Arrangements. Each
Holder may not participate in any underwritten offering pursuant to
a registration filed hereunder unless such person (a) agrees to sell
such person’s securities on the basis provided in customary underwriting arrangements, and (b) provides all relevant information and completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, and other documents required under the terms of such underwriting arrangements; provided, however, that the Holders participating in the underwritten registration may appoint one legal or other representative to
negotiate the underwriting arrangements, at such Holder’s expense. |
||
| 9. |
Public Information. The Company shall undertake to make publicly available and available to the Holders adequate current public
information within the meaning of, and as required pursuant to, Rule 144 and shall use its reasonable best efforts to satisfy the Registrant Requirements for the use of Form F-3 during the term of this Agreement. |
||
| 10. |
Non-United States Offering. In the event of a public offering of securities of the Company outside of the United States, the Company
will afford the Holders registration rights in accordance with applicable law and comparable in substance to the foregoing registration rights. |
||
| 11. |
Assignment of Registration Rights. The
rights to cause the Company to register Registrable Shares pursuant
to this Agreement may only be assigned by a Holder (the "Assignment")
under the following conditions: |
||
(i) |
The Assignment shall be concurrent with the sale or transfer of Registrable Shares and only with respect to the transferred Registrable Shares; |
||
(ii) |
Pursuant to the Assignment, a Holder may only assign the registration rights contained herein on up to two (2) occasions, to no more than five (5) transferees on each occasion; |
||
(iii) |
The assignees of the registration
rights may not further assign the registration rights. |
||
| Provided, (a) the Company,
is upon such transfer, furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to which |
|||
| such registration rights are being assigned,
and (b) such transferee or assignee agrees in writing to be bound by and
subject to the terms and conditions of this Agreement. |
|
12. |
Changes in Registrable Shares. If, and as often as, there are any changes in the Registrable Shares by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions of this Agreement, as may be required, so that the rights and
privileges granted hereby shall continue with respect to the Registrable Shares as so changed. |
13. |
Entire Agreement. This Agreement constitutes the full and entire understanding and agreement among the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements (including, without limitation, the Letter Agreement entered into between the Company and the Holders, and any and all negotiations and oral understandings with respect thereto) and any and
all registration rights that the Company had previously granted to any party hereto in any capacity whatsoever. Nothing in this Agreement, express or implied, is intended to confer upon any Person, other than the parties hereto and their respective
successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein. |
14. |
Governing Law. This Agreement shall be governed in all respects by the laws of the State of New York, as such laws are applied to agreements
between State of New York residents entered into and to be performed entirely within State of New York, whether or not all parties hereto are residents of State of New York. |
15. |
Successors and Assigns. Subject to the provisions of Section 11 above, the provisions hereof shall inure to the benefit of, and be binding upon,
the successors, assigns, heirs, executors and administrators of the parties hereto. |
16. |
Notices. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and if: (i) served or sent
by post shall be deemed to have been served or delivered ten (10) days after the time when the letter was deposited in the mail, postage prepaid for first class mail or airmail, as applicable, or (ii) sent via facsimile or electronic mail, shall be
deemed to have been served or delivered on the first business day following the date that the facsimile or electronic mail was sent, provided that, if no electronic mail confirmation is delivered by the recipient of such notice to the sender thereof
within twenty-four (24) hours following the delivery of such notice, such notice has to be resent via facsimile and shall be deemed to have been served or delivered on the first business day following the date that such notice was resent via
facsimile, all to the addresses of the Holders as set forth on Schedule 1 hereto, or to such other address as such party shall furnish the Company in
writing, and if to the Company, at its address |
| set forth in the preamble to this Agreement or at such other address as the Company shall have furnished to the parties in writing. | |
| 17. |
Severability. Any invalidity, illegality or limitation on the enforceability of this Agreement or any part thereof, by any party whether arising
by reason of the law of the respective party's domicile or otherwise, shall in no way affect or impair the validity, legality or enforceability of this Agreement with respect to other parties. If any provision of this Agreement shall be judicially
determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. |
| 18. |
Titles and Subtitles. The titles of the Sections of this Agreement are for convenience of reference only and are not to be considered in
construing this Agreement. |
| 19. |
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall
constitute one instrument. This Agreement may be executed by exchange of signatures via facsimile. |
IN WITNESS WHEREOF, the parties have signed this Agreement, as of the date first appearing above.
X Securities Ltd. |
|
| By: ____________________ | By: ____________________ |
| Title: ____________________ | Title: ____________________ |
| __________________________________ | |
| Xxxxx Xxxxx | |
| __________________________________ | |
| Xxxxxxx Xxxxxx |
Schedule 1
List of Holders
Name of Holder |
Address |
| Xxxxx Xxxxx | 000 Xxxxxx Xxxxx |
| Xxx Xxxxxxxx, XX 00000 | |
| Xxxxxx Xxxxxx | |
| Fax: +1- _________________ | |
| X Securities, Ltd. | 000 0xx Xxx. 00xx Xxxxx |
| Xxx Xxxx, XX 00000 | |
| Xxxxxx Xxxxxx | |
| Fax: +1- _________________ | |
| Xxxxxxx X. Xxxxxx | 00-00 00xx Xxxxxx Xxx. 0X |
| Xxxxxxxxx, XX 00000 | |
| Xxxxxx Xxxxxx | |
| Fax: +1- _________________ | |
