SECURITIES PURCHASE AGREEMENT
SECURITIES
PURCHASE AGREEMENT (this “Agreement”),
dated
as of February 24, 2008, by and among Xxxxx Joint Investments (2005) Limited
partnership, organized under the laws of the State of Israel (the “Purchaser”)
and
the sellers listed on Schedule
I
hereto
(each a “Seller”
and
collectively, the “Sellers”).
W
I T N E
S S E T H:
WHEREAS,
the Sellers own ordinary shares, par value NIS 1.00 per share (the “Securities”),
of
Nur Macroprinters Ltd., a company organized under the laws of the State of
Israel (the “Company”),
as
set forth on Schedule
I
hereto;
and
WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Purchaser
desires to Purchase the Securities from the Sellers and the Sellers desire
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 Sellers agree 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, the Purchaser hereby agrees to
purchase from each Seller and each Seller agrees to sell, transfer, convey
and
deliver to the Purchaser, free and clear of all Encumbrances, the Securities
set
forth opposite such Seller’s name on Schedule
I
hereto
for the consideration specified in Section 2.1(b) below.
(b) The
purchase price for the Securities shall be $0.75 per share (subject to equitable
adjustment for stock splits, recombinations and similar events occurring between
the date hereof and the Closing Date) (collectively, the “Purchase
Price”).
Except as otherwise indicated, all references in this Agreement to “$” or
“dollars” shall be to US dollars (US$).
(c) Concurrently
with the execution of this Agreement, each
Seller shall (i) deliver or shall cause to be delivered to the Purchaser
copies of an Escrow Agreement in substantially the form set forth as
Exhibit
A
hereto
among the Purchaser, the Sellers and the designated Escrow Agent (the
“Escrow
Agreement”)
duly
executed by the Seller and (ii) deliver or cause to be delivered to the Escrow
Agent: (A) any and all original certificates and instruments evidencing the
Securities, (B) a transfer deed in respect of the Securities executed in
blank 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”).
(d) Concurrently
with the execution of this Agreement, the Purchaser shall deliver or cause
to be
delivered to the Sellers (i) copies of the Escrow Agreement duly executed by
Purchaser and (ii) funds in US dollars equal to five percent (5%) of the
aggregate Purchase Price as set forth on Schedule
I
(the
“Down
Payment”),
by
way of
wire transfer to the account set forth on Schedule
I
or
designated in writing by the applicable Seller.
-2-
(e)
Within
30
days following the date hereof, the Purchaser shall transfer or cause to be
transferred to the Sellers the balance of the aggregate Purchase Price (i.e.,
ninety-five percent (95%) of the aggregate Purchase Price as set forth on
Schedule
I)
(the
“Final
Payment”),
by
way of wire transfer to the account set forth on Schedule
I
or
designated in writing by the applicable Seller, and pursuant to the terms of
the
Escrow Agreement, the Escrow Agent shall release the Conveyance Documents to
the
Purchaser. The date of such release shall be referred to herein as the
“Closing
Date”.
(f) If
the
Purchaser shall not have so transferred the Final Payment to any Sellers by
30-day deadline, such Sellers shall be entitled to demand the return of the
applicable Conveyance Documents from the Escrow Agent and to retain the
applicable Down Payment.
SECTION
3. REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
Each
Seller, for itself and for no other Seller, hereby represents and warrants
to
the Purchaser as of the date hereof and the Closing Date, as
follows:
3.1 Organization;
Authorization; Enforcement.
If such
Seller is an entity, such Seller is an entity duly organized and validly
existing under the laws of the jurisdiction of its organization and has 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 execution and delivery by such Seller of this Agreement and
the
consummation by it of the transactions contemplated hereby has been duly
authorized by all necessary action on the part of such Seller and no further
action is required by such Seller. This Agreement has been duly executed by
such
Seller and constitutes the valid and legally binding obligation of such 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.
Such
Seller (i) is the sole record owner and legal owner of the Securities set forth
opposite such Seller’s name on Schedule
I,
and
(ii) has 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 (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 Seller is
subject or (B) if such Seller is an entity, any provision of such Seller’s
organizational documents (each as amended through the date hereof) or (ii)
require any notice or consent under, any agreement to which such Seller is
a
party or by which such 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 or (C) require the Seller to give any notice to, make any filings
with, or obtain any authorization of any Governmental Authority.
-3-
3.6 Exempt
Offering.
Assuming the accuracy of the representations and warranties of the Purchaser
set
forth in Section 4.2, the offer and sale of the Securities as contemplated
hereby are, to the best knowledge of the Sellers, exempt from the registration
requirements of the Securities Act. Neither such Seller nor any Person acting
on
its behalf has taken or is, to the knowledge of such Seller, contemplating
taking any action which could subject the offering or sale of such Securities
to
the registration requirements of the Securities Act. Neither such 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 such 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 such Seller.
3.8 Adequacy
of Purchase Price.
Such
Seller is aware that the Purchaser in the future may generate greater value
with
respect to its Securities than such Seller will receive for such Securities
pursuant to this Agreement, especially since the Purchaser is a member of the
controlling group of the Company and the Securities may be added to the control
block. Such Seller is also aware that the Purchaser may purchase securities
of
the Company from other shareholders of the Company, including large
shareholders, either alone or together with other purchasers, for consideration
that may exceed the consideration payable pursuant to this Agreement and/or
pursuant to other terms and conditions that may be more favorable to the sellers
than the terms and conditions of this Agreement. Such Seller waives any right
to
receive any consideration for selling its Securities to the Purchaser (other
than the consideration specifically payable pursuant to this Agreement) and
waives any possible claim against the Purchaser with respect to the fairness
of
the purchase price payable hereunder.
SECTION
4. REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
The
Purchaser hereby represents and warrants to the Sellers, 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.
-4-
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 Sellers 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 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.
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-
5.3 Dividends
and Distributions.
The
Sellers will promptly pay or transfer to or to the order of the Purchaser,
upon
receipt by the Sellers, 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 Sellers after the Closing Date.
5.4 Withholding
Tax.
The
Purchaser shall be entitled to deduct and withhold from the Purchase Price
otherwise payable pursuant to this Agreement to any Seller the amounts required
to be deducted and withheld from any payment pursuant to this Agreement under
any applicable law, provided, however, that if the Sellers obtain a tax ruling
and/or exemption from any applicable Governmental Authority in a form reasonably
satisfactory to the Purchaser, deduction and withholding of any amounts under
the tax laws of such Governmental Authority’s jurisdiction shall be made only in
accordance with the provisions of such ruling and/or exemption. To the extent
that amounts are so withheld by the Purchaser, such withheld amounts (i) shall
be remitted by the Purchaser to the applicable Governmental Authority, and
(ii)
shall be treated for all purposes of this Agreement as having been paid to
the
applicable Seller in respect of which such deduction and withholding was made
by
the Purchaser.
5.5 Severability
Among the Sellers.
This
Agreement is drafted as one Agreement between the Purchaser and the Sellers
as a
group, for the sake of convenience only. However, subject to the following
sentence, it is confirmed and agreed that there shall be no joint liability
among the Sellers, and a failure to perform by one Seller shall not be attached
to any other Seller, and that, subject to the other terms of this Agreement,
the
Purchaser shall not be entitled to rescind or terminate this Agreement as to
those Sellers who have performed their obligations hereunder.
SECTION
6. MISCELLANEOUS
6.1 Survival
of Representations and Warranties.
The
representations and warranties of the Sellers and the Purchaser contained in
Sections 3 and 4, respectively, shall survive the Closing Date.
6.2 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.
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6.3 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.
6.4 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:
if
to the
Purchaser:
Xxxxx
Joint Investments (2005) Limited partnership
c/o
Goldfarb, Levy, Eran, Meiri & Co.
0
Xxxxxxxx Xxxxxx
Xxx-Xxxx
00000, Xxxxxx
Facsimile:
x000-0-000-0000
Attention:
Xxxx X. Xxxxx, Adv.
each
notice to the Purchaser, with a copy to (which shall not constitute
notice):
Goldfarb,
Levy, Eran, Meiri & Co.
0
Xxxxxxxx Xxxxxx
Xxx-Xxxx
00000, Xxxxxx
Facsimile:
x000-0-000-0000
Attention:
Xxxx X. Xxxxx, Adv.
if
to the
Sellers: to the addresses set forth in Schedule
II.
(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.
6.5 Expenses.
The
parties acknowledge that, unless otherwise provided herein, all costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby are the sole responsibility
of each respective party and the parties will pay their respective costs and
expenses.
6.6 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-
6.7 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 Sellers 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) each 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 6.7 and (ii) each
assignee shall furnish the Sellers 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 each
Seller.
6.8 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.
6.9 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.
6.10 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, the Purchaser and the Sellers will be
entitled to specific performance under this Agreement.
6.11 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/
Ran Xxxxxxxx
|
||
|
Name:
|
Ran
Xxxxxxxx
|
||
|
Title:
|
Director
|
||
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
||
|
Name:
|
Xxxxxxx
Xxxxxxx
|
||
|
Title:
|
Director
|
||
THE
SELLERS:
|
/s/
Xxxxxxx Xxxxx
|
|
|
Name:
Xxxxxxx Xxxxx
|
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Schedule
I
The
Sellers
|
Seller
Name
and Address
|
No.
of Shares
|
Aggregate
Purchase Price ($)
|
Down
Payment ($) (5%)
|
Final
Payment ($) (95%)
|
Wire
Instructions for Seller’s Account
|
|
Xxxxxxx
Xxxxx
|
162,500
|
121,875
|
6,094
|
115,781
|
-10-
