SECURITIES PURCHASE AGREEMENT
Exhibit
8
SECURITIES
PURCHASE AGREEMENT (this “Agreement”),
dated
as of February 21, 2008, by and among Xxxxx Joint Investments (2005) Limited
Partnership, a limited partnership organized under the laws of the State of
Israel (the “Purchaser”),
and
Xx. Xxxxxxx Xxxxxxx (the “Seller”).
W
I T N E
S S E T H:
WHEREAS,
the parties desire that the Purchaser purchase the Securities (as defined below)
from the holders thereof;
WHEREAS,
the Purchaser currently does not have the funds available to finance the
purchase of the Securities;
WHEREAS,
the parties desire that the Seller purchase the Securities and immediately
sell
them to the Purchaser as the same price;
WHEREAS,
in order to effectuate the foregoing, the Seller (i) signed a share purchase
agreement on the date hereof with Xxx Xxxxxx and certain affiliates of his
(the
“Purjes
Group”)
to
purchase the Ordinary Shares, par value $1.00 per share (“Ordinary
Shares”),
and
warrants to purchase Ordinary Shares (“Warrants”)
of Nur
Macroprinters Ltd., a company organized under the laws of the State of Israel
(the “Company”),
as
set forth on Schedule
1
hereto
and (ii) will soon sign a share purchase agreement with Xxxxx Xxxxxxxxxxx and
certain affiliates of his (the “Xxxxxxxxxxx
Group”)
to
purchase the Ordinary Shares and Warrants set forth on Schedule
2
hereof
(collectively with the Ordinary Shares and Warrants set forth on Schedule 1,
the
“Securities”);
WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Purchaser
desires to purchase the Securities from the Seller and the Seller desires to
sell the Securities to the Purchaser.
NOW,
THEREFORE, in consideration of the mutual representations, warranties and
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Purchaser and the Seller agrees as follows:
SECTION
1. DEFINITIONS
As
used
in this Agreement, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
“Affiliate”
of
a
specified Person shall mean a Person that directly or indirectly controls or
is
controlled by, or is under common control with, such specified Person. For
this
purpose, “control” shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract or
otherwise.
“Business
Day”
shall
mean a day other than a Friday or Saturday or other day on which banks in the
State of Israel are not required or authorized to close.
“Encumbrances”
shall
mean mortgages, charges, pledges, security interests, liens, encumbrances,
actions, claims, demands, voting trusts, voting agreements, rights of first
offer or refusal and equities of any nature whatsoever and howsoever arising
and
any rights or privileges capable of becoming any of the foregoing.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
“Governmental
Authority”
shall
mean any agency, department, court or any other administrative, legislative
or
regulatory authority of any U.S., Israeli or other governmental
body.
“Person”
shall
mean an individual, partnership, joint-stock company, corporation, limited
liability company, trust or unincorporated organization, and a government or
agency or political subdivision thereof.
“SEC”
shall
mean the Securities and Exchange Commission.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
SECTION
2. PURCHASE
AND SALE OF SECURITIES
2.1 Purchase
and Sale of the Securities.
(a) Subject
to the terms and conditions set forth in this Agreement and in reliance upon
each party’s representations set forth below, on the Closing Date, the Purchaser
shall Purchase from the Seller and the Seller shall sell, transfer, convey
and
deliver to the Purchaser, free and clear of all Encumbrances, the Securities
for
the consideration specified in Section 2.1(b) below.
(b) The
purchase price for the Ordinary Shares shall be $0.75 per share and the purchase
price for the Warrants shall be as set forth on Schedule
1
and
Schedule
2
hereto
(subject to equitable adjustment for stock splits, recombinations and similar
events occurring between the date hereof and the Closing Date) (collectively,
the “Purchase
Price”).
Except as otherwise indicated, all references in this Agreement to “$” or
“dollars” shall be to US dollars (US$).
2.2 Closing.
(a) Transfer
of Ownership.
The
closing of the sale and purchase of any Securities between the parties hereto
(the “Closing”)
shall
take place on the day on which such Securities are purchased by the Seller
from
the Purjes Group or the Wittenstein Group(the “Closing
Date”).
Accordingly, the parties may hold more than one Closing with respect to
different Securities.
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(b) Seller
Deliverables.
At each
Closing, the Seller shall deliver or cause to be delivered to an escrow agent
for the benefit of the Purchaser: (A) any and all original certificates and
instruments evidencing the Securities, to the extent that they have been issued
by the Company or its transfer agent, (B) transfer deeds in respect of the
Securities and (C) assignment documents evidencing the assignment of any and
all
registration rights relating to the Securities (the items mentioned in
sub-clauses (A), (B) and (C) shall be referred to collectively as the
“Conveyance
Documents”).
(c)
Payment.
Promptly following the receipt of financing by the Purchaser, provided that
one
or more Closings shall have occurred, the Purchaser shall transfer or cause
to
be transferred to the Seller the Purchase Price set forth on Schedule
1
and
Schedule
2
hereto
with respect to the applicable Securities, by way of wire transfer to the
account designated in writing by the Seller. Upon the payment of the Purchase
Price with respect to any Securities, the Conveyance Documents in respect of
such Securities shall be released from escrow and transferred to the Purchaser.
If the Purchase Price with respect to any Securities shall not be paid withing
30 days of the date hereof, the Seller shall have the right to rescind the
sale
of such Securities by written notice to the Purchaser.
SECTION
3. REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller hereby represents and warrants to the Purchaser as of the date hereof
and
the Closing Date, as follows:
3.1 Enforcement.
This
Agreement has been duly executed by the Seller and constitutes the valid and
legally binding obligation of the Seller, enforceable against it in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors.
3.3 Ownership
of Securities.
The
Seller is, or at the applicable Closing will be, (i) the sole legal owner of
the
Securities, and (ii) the holder of good, valid and marketable title to such
Securities free and clear of all Encumbrances. Seller has no reason to believe
that the Securities have not been duly and validly issued. When delivered to
the
Purchaser pursuant to the terms hereof, the Securities shall be fully paid
and
nonassessable, free and clear of all Encumbrances.
3.4 No
Conflicts.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will require any notice or consent under,
any
agreement to which the Seller is a party or by which the Seller is bound or
to
which the Securities are or may be bound or affected or result in the imposition
of any Encumbrance upon the Securities orrequire the Seller to give any notice
to, make any filings with, or obtain any authorization of any Governmental
Authority, other than the filing of a Schedule 13D.
-3-
3.6 Exempt
Offering.
Assuming the accuracy of the representations and warranties of the Purchaser
set
forth in Section 4.4, the offer and sale of the Securities as contemplated
hereby are, to the best knowledge of the Seller, exempt from the registration
requirements of the Securities Act. The Seller has not taken nor is, to the
knowledge of the Seller, contemplating taking any action which could subject
the
offering or sale of such Securities to the registration requirements of the
Securities Act. Neither the Seller, nor any of its Affiliates, nor any Person
acting on their behalf, has engaged, nor will they engage, in any “direct
selling efforts” (within the meaning ascribed to such term in Regulation S
promulgated under the Securities Act (“Regulation
S”))
with
respect to the sale of the Securities. The sale of the Securities by the Seller
is not part of a plan or scheme to evade the registration requirements of the
Securities Act.
3.7 Fees.
No fees
or commissions will be payable by the Purchaser to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement based on any
arrangement made by or on behalf of the Seller.
SECTION
4. REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
The
Purchaser hereby represents and warrants to the Seller, as of the date hereof
and the Closing Date, as follows:
4.1 Organization;
Authorization; Enforcement.
The
Purchaser is a limited partnership duly organized, validly existing and in
good
standing under the laws of the jurisdiction of its organization with the
requisite power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder. The purchase by the Purchaser of the Securities has been duly
authorized by all necessary action on the part of the Purchaser. This Agreement
has been duly executed by the Purchaser and constitutes the valid and legally
binding obligation of the Purchaser, enforceable against it in accordance with
its terms, subject
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors.
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4.2 Exempt
Offering.
(a) The
Purchaser understands and agrees that the Securities have not been registered
under the Securities Act and may not be offered or sold except pursuant to
an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. The Purchaser warrants that neither it
nor
any of its Affiliates nor any Person acting on their behalf has offered or
sold,
or will offer or sell, any Securities except in an “offshore transaction” in
accordance with Regulation S or otherwise pursuant to an exemption from the
Securities Act.
(b) No
Persons acting on behalf of the Purchaser or any of its Affiliates has engaged
or will engage in any “directed selling efforts” (as such term is defined in
Regulation S) with respect to the Securities.
(c) The
Purchaser is an experienced investor and is purchasing the Securities for the
purpose of investment for its own account and not with a view to distribution
or
resale, directly or indirectly, to United States persons, in the United States
or otherwise in violation of the United States securities laws, without
prejudice, however, to the Purchaser’s right at all times to sell or otherwise
dispose of all or any part of the Securities in compliance with applicable
securities laws. The Purchaser is not located in the United States and is not
a
“U.S. person” (as defined in Regulation S).
(d) The
contemplated purchase of the Securities is not part of a plan or scheme to
evade
the registration provisions of the Securities Act.
4.3 Fees.
No fees
or commissions will be payable by the Seller to any broker, financial advisor
or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement based on any
arrangement made by or on behalf of the Purchaser.
4.4 Purchaser
Status.
Since
the Purchaser is a member of the controlling group of the Company and is
therefore fully and intimately aware of the legal, financial and business status
and affairs of the Company, the Purchaser has not found it necessary to conduct
any “due diligence” examination of the Company. Further, the Purchaser has
expressly waived the receipt of any warranties and representations from the
Seller as to the Company. The Purchaser waives any right to rescind this
Agreement and/or to obtain any refund or reduction in the consideration to
be
paid to the Seller hereunder for the Securities and waives any possible claim
against the Seller with respect to the fairness of the purchase price payable
hereunder, even in the event that following the Closing of the sale transaction
hereunder, any additional or new facts shall come to the attention of Purchaser
regarding the Company of which the Purchaser may not have been aware at time
of
execution of this Agreement.
4.5 No
Conflicts.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with or violate any (A)
statute, law regulation, rule, injunction, judgment, order, decree, ruling,
charge or other restriction of any Governmental Authority to which the Purchaser
is subject or (B) any provision of the Purchaser’s organizational documents
(each as amended through the date hereof) or (ii) require any notice or consent
under, any agreement to which the Purchaser is a party or by which the Purchaser
is bound.
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SECTION
5. ADDITIONAL
COVENANTS OF THE PARTIES
5.1 Further
Assurance.
Each of
the parties shall promptly execute such documents and other papers and take
such
further actions as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby.
5.2 Publicity
and Confidentiality.
The
parties shall not disclose the terms of this Agreement to any third party,
nor
issue any press release, publicity statement or other public notice relating
to
this Agreement or the transactions contemplated by this Agreement without first
obtaining the prior consent of the other parties to this Agreement, provided
that a party shall not be precluded from making such filings or giving such
notices as may be required by law or the rules of any stock market, including
without limitation, with an amendment to the Purchaser’s Schedule
13D.
5.3 Dividends
and Distributions.
The
Seller will promptly pay or transfer to or to the order of the Purchaser, upon
receipt by the Seller, any dividend or distribution declared or other rights
declared or distributed by the Company in respect of the Securities for which
a
record date occurs on or after the Closing Date and which are paid or
distributed by the Company to the Seller after the Closing Date.
SECTION
6. THE
SELLER’S CLOSING CONDITION
The
obligation of the Seller to sell any Securities on the Closing Date, as provided
in Section 2 hereof, shall be subject to the occurrence of the closing of the
purchase by the Seller from the Purjes Group or the Xxxxxxxxxxx Group, as the
case may be, of such Securities.
SECTION
7. MISCELLANEOUS
7.1 Survival
of Representations and Warranties.
The
representations and warranties of the Seller and the Purchaser contained in
Sections 3 and 4, respectively, shall survive the Closing Date.
7.2 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced solely in
accordance with the internal laws of the State of Israel, without regard to
the
principles of conflicts of law thereof. Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of either the Tel-Aviv courts for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of this Agreement), and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is improper.
-6-
7.3 Paragraph
and Section Headings.
The
headings of the sections and subsections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part
thereof.
7.4 Notices
(a) All
communications under this Agreement shall be in writing and shall be delivered
by hand or facsimile or mailed by a U.S.- based overnight courier or by
registered mail or certified mail, postage prepaid.
(b) Any
notice so addressed shall be deemed to be given: if delivered by hand or
facsimile, on the date of such delivery (of if such date is not a Business
Day,
on the next Business Day); if mailed by courier, on the second Business Day
following the date of such mailing; and if mailed by registered or certified
mail, on the fifth Business Day after the date of such mailing.
7.5 Expenses.
All
costs and expenses (including legal fees and expenses and including interest
charges) incurred by the Purchaser or by the Seller in connection with this
Agreement and the transactions contemplated hereby or in connection with the
transaction in which the Seller purchased the Securities from the Purjes Group
and the Wittenstein Group, shall be borne by the Purchaser.
7.6 Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties. No party shall be entitled to assign this
Agreement without the consent of the other parties.
7.7 Entire
Agreement; Amendment and Waiver.
This
Agreement constitutes the entire understandings of the parties hereto and
supersedes all prior agreements or understandings with respect to the subject
matter hereof among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with)
the
written consent of the Seller and the Purchaser. Notwithstanding the foregoing,
subject to the applicable securities law, the Purchaser shall be entitled to
assign this Agreement to any Affiliates of the Purchaser without such consent,
provided that at the time of such assignment, (i) the Seller is given written
notice by the Purchaser at the time of such assignment stating the name and
address of such assignee, and the number of Securities with respect to which
such assignment is being made, and that any such assignee shall receive such
assigned rights subject to all the terms and conditions of this Agreement,
including without limitation, the provisions of this Section 7.7 and (ii) each
assignee shall furnish the Seller and with the assignee's written agreement
to
be bound by this Agreement and confirming the accuracy of the representations
and warranties set forth in Section 3 with respect to such assignee.
Notwithstanding any such assignment, the Purchaser shall continue to be
responsible for the timely and full payment of the Purchase Price to the
Seller.
7.8 Severability.
In the
event that any part or parts of this Agreement shall be held illegal or
unenforceable by any court or administrative body of competent jurisdiction,
such determination shall not effect the remaining provisions of this Agreement
which shall remain in full force and effect.
-7-
7.9 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which together shall be considered one and the
same agreement.
7.10 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, the Purchaser and the Seller will be
entitled to specific performance under this Agreement.
7.11 No
Third-Party Beneficiaries.
Except
as otherwise set forth herein, this Agreement shall not confer any rights or
remedies upon any Person other than the parties hereto and their respective
successors and permitted assignees.
[SIGNATURE
PAGES IMMEDIATELY FOLLOW]
-8-
IN
WITNESS WHEREOF the parties have signed this Securities Purchase Agreement
as of
the date first hereinabove set forth.
THE
PURCHASER:
XXXXX
JOINT INVESTMENTS (2005) LIMITED PARTNERSHIP
By:
XXXXX
INVESTMENTS LTD., its General Partner
By:
/s/
Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Director
By:
/s/
Ran Xxxxxxxx
Name:
Ran
Xxxxxxxx
Title:
Director
THE
SELLER:
/s/
Xxxxxxx Xxxxxxx
Xxxxxxx
Xxxxxxx
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Schedule
1
Securities
- Purjes Group
|
Number
of Shares
|
Number
of Warrants (Exercise Price)
|
Purchase
Price per Warrant
|
Aggregate
Purchase Price for Shares and Warrants
|
|
|
3,687,854
|
422,077
($0.52)
79,145
($0.62)
3,000,000
($0.75)
20,474
($1.54)
129,310
($1.16)
|
$0.23
$0.13
$0.05
$1.00
for all
$0.03
|
||
|
Total
|
3,687,854
|
3,651,006
|
$3,027,136
|
-10-
Schedule
2
Securities
- Wittenstein Group
|
Number
of Shares
|
Number
of Warrants
(Exercise
Price)
|
Purchase
Price Per Warrant
|
Aggregate
Purchase Price for Shares and Warrants
|
|
|
1,129,865
|
403,846
($0.52)
|
$0.23
|
$940,283
|
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