SECURITIES PURCHASE AGREEMENT
SECURITIES
PURCHASE AGREEMENT (this “Agreement”),
dated
as of February 21, 2008, by and among Xxxxxxxx Xxxxxxx (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 1.0 per share (“Ordinary
Shares”),
of
Nur Macroprinters Ltd., a company organized under the laws of the State of
Israel (the “Company”),
and
warrants to purchase Ordinary Shares of the Company (the “Warrants”
and
together with the Ordinary Shares, the “Securities”)
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, as set forth on Schedule
I
hereto, 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, Saturday, Sunday or other day on which banks
in
the State of Israel or the State of New York 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 each Seller and each Seller shall 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 per Ordinary Share shall be $0.75 and the purchase price per
Warrant is set forth on Schedule
I
hereto
(subject, in each case, to equitable adjustment for stock splits, recombinations
and similar events occurring between the date hereof and the Closing)
(collectively, the “Purchase
Price”).
Except as otherwise indicated, all references in this Agreement to “$” or
“dollars” shall be to US dollars (US$).
2.2 Closing.
(a) The
closing of the sale and purchase of the Securities (the “Closing”)
shall
take place on the date hereof, subject to the satisfaction or waiver (by the
applicable party) of all the conditions set forth in Sections 6 and 7, or such
other date as the parties may agree in writing (the “Closing
Date”),
at
the offices of Xxxxxx, Xxxxxxx & Xxxx LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx,
X.X. 00000, or such other location as the parties shall mutually
agree.
(b) At
the
Closing, each Seller shall deliver or shall cause to be delivered to the
Purchaser copies of an Escrow Agreement in the form set forth as Exhibit A
hereto among the Purchaser, the Sellers and the designated Escrow Agent (the
“Escrow
Agreement”)
duly
executed by such Seller and the Escrow Agent. Pursuant to the terms of the
Escrow Agreement, each Seller shall deliver or cause to be delivered to the
Escrow Agent: (A) any and all original certificates and instruments
evidencing the Securities and (B) Deeds of Transfer of Shares and Deeds of
Transfer of Warrants relating to the Securities duly executed by the applicable
Seller and witnessed (the items mentioned in sub-clauses (A) and (B) shall
be
referred to collectively as the “Conveyance
Documents”).
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(c) At
the
Closing, the Purchaser shall deliver or cause to be delivered to the Sellers
copies of the Escrow Agreement duly executed by the Purchaser. Pursuant to
the
terms of the Escrow Agreement and subject to Section 2.2(d)(i) below, the
Purchaser shall transfer or cause to be transferred its aggregate respective
Purchase Price as set forth on Schedule
I
to the
Escrow Agent within 4 Business Days from the date hereof, and pursuant to the
terms of the Escrow Agreement, the Escrow Agent shall release the Conveyance
Documents to the Purchaser upon receipt of the Purchase Price, and, subject
to
Section 2.2(d)(ii) below, the Escrow Agent shall thereafter distribute to each
Seller its respective share of the Purchase Price as set forth in Schedule
I
to the
account of such Seller; provided, however, that such released Purchase Price
shall not, in any event, be made with respect to Securities for which Conveyance
Documents have not been provided to the Escrow Agent. Purchaser recognizes
that
the Sellers are not in possession of a stock certificate representing 81,897
shares and Purchaser waives presentation of same, provided however that Sellers
execute and furnish a Share Transfer Deed regarding same.
(d) Notwithstanding
anything to the contrary herein, (i) the Purchase Price payable to Xxx Xxxxxx
shall be reduced by $2,000 to cover half the cost of a legal opinion (ii)
$61,423 of the Purchase Price payable to Xxx Xxxxxx shall remain in escrow
and
shall be released by the Escrow Agent only upon the delivery to the Escrow
Agent
for the benefit of the Purchaser of stock powers executed by the Sellers with
respect to all the Securities transferred pursuant to this Agreement with the
signature of the respective Sellers guaranteed by an eligible guarantor
institution with membership in an approved signature guarantee medallion
program. . In order to allay doubt it is clarified and agreed that the
furnishing of a stock certificate in respect of the aforesaid 81,897 shares
is
not a pre-condition to the release from escrow into the hands of the Sellers
of
the $61,423.00.
SECTION
3. REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
Each
Seller, for itself and for no other Seller (subject to Section 5.7 with respect
to Xxx Xxxxxx), hereby represents and warrants to the Purchaser as of the date
hereof and the Closing Date, as follows:
3.1 Organization.
If such
Seller is an entity, such Seller is an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization.
3.2 Authorization;
Enforcement.
If such
Seller is an entity, such Seller 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.
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3.3 Ownership
of Securities.
Such
Seller (i) is the sole legal owner of the Securities set forth opposite such
Seller’s name on Schedule
I,
(ii)
has good, valid and marketable title to such Securities free and clear of all
Encumbrances and (iii) is conveying such Securities to the Purchaser free and
clear of all Encumbrances that it may have created or suffered to exist. Such
Seller has neither previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, any of the Securities or any rights
thereunder, nor is such Seller party to any agreement other than this Agreement
to sell, assign, convey, transfer or otherwise dispose of, in whole or in part,
any of the Securities or any rights thereunder. Such Seller does not hold,
and
at any time during the past 12 months did not hold, directly or indirectly,
shares of the Company possessing 10% or more of the voting power of the Company
(without giving effect to any voting trust or voting agreement that gives voting
power to another party and without giving effect to any warrants of the Company
held by such Seller). 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. Such Seller has delivered to the Purchaser true
and
complete copies of the Warrants being sold by such Seller pursuant to this
Agreement.
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.
3.5 Governmental
Consents.
Such
Seller is not required to give any notice to, make any filings with, or obtain
any authorization of any Governmental Authority in order for the parties to
execute, deliver or consummate the transactions contemplated by this
Agreement.
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 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 such 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. The Purchaser
shall have no obligation with respect to any fees or with respect to any claims
made by or on behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by
this
Agreement based on any arrangement made by or on behalf of such
Seller.
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3.8 Future
Profits.
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 or a related entity
thereof 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
or a related party thereof 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.
3.9 Residency.
Such
Seller, and each owner of such Seller, including without limitation, any limited
partner, general partner, member of an LLC, shareholder or beneficial owner
of
any incorporated or other legally formed entity, represents that he/it is a
resident of the United States for tax purposes, is entitled to benefit as such
from the provisons of the U.S.-Israel Tax Treaty and will report as and when
required the transaction contemplated by this Agreement to the U.S. Internal
Revenue Service in accordance with applicable law and regulations. Such Seller
is not a resident of the State of Israel for tax purposes and did not spend
more
than an aggregate of 183 days in Israel during 2007.
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
execution and delivery by such Purchaser 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 Purchaser and no further action is required
by such Purchaser. This Agreement has been duly executed by such Purchaser
and
constitutes the valid and legally binding obligation of such Purchaser,
enforceable against it in accordance with its terms.
4.2 Exempt
Offering.
(a) Such
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. Such 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.
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(b) No
Persons acting on behalf of such 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) Such
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 such 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. Such 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 such 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. The
Sellers shall have no obligation with respect to any fees or with respect to
any
claims made by or on behalf of other Persons for fees of a type contemplated
in
this Section that may be due in connection with the transactions contemplated
by
this Agreement based on any arrangement made by or on behalf of a
Purchaser.
4.4 Purchaser
Status.
Since
such Purchaser or an entity related to such 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, such
Purchaser has not found it necessary to conduct any “due diligence” examination
of the Company. Further, such Purchaser has expressly waived the receipt of
any
warranties and representations from the Sellers as to the Company. Such
Purchaser waives any right to rescind this Agreement and/or to obtain any refund
or reduction in the consideration to be paid to the Sellers hereunder for the
Securities and waives any possible claim against the Sellers 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 such Purchaser regarding the Company of
which such 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 statute,
law regulation, rule, injunction, judgment, order, decree, ruling, charge or
other restriction of any Governmental Authority to which such Purchaser is
subject or (ii) require any notice or consent under, any agreement to which
such
Purchaser or an Affiliate thereof is a party or by which such Purchaser is
bound.
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4.6 Receipt
of Certain Agreements.
Such
Purchaser confirms that is has been provided with copies of the Voting Trust
Agreement and the Voting Agreement to which certain of the Sellers and members
thereof are a party.
SECTION
5. ADDITIONAL
COVENANTS OF THE PARTIES
5.1 Further
Assurance.
Each of
the parties shall 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 as promptly as practicable.
Without derogating from the generality of the foregoing, each Seller as promptly
as practicable following the Closing shall deliver to the Escrow Agent for
the
benefit of the Purchaser executed stock powers with respect to all the
Securities transferred by it pursuant to this Agreement with the signature
of
such Seller guaranteed by an eligible guarantor institution with membership
in
an approved signature guarantee medallion program. Each such party shall use
its
reasonable efforts (i) to fulfill or obtain the fulfillment of the conditions
to
the Closing as promptly as practicable and (ii) to assist each of the other
parties, to the extent practicable and reasonable under the circumstances,
to do
the same. Each Seller hereby appoints the Purchaser as its attorney in fact
to
take any action in the name and on behalf of such Seller that may be required
to
register the transfer of the Securities to the Purchaser in the books of the
Company or its transfer agent following the Closing.
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 (or that
of a related party).
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 purchased
by
such Purchaser 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. To allay any doubt that may arise by a delay in registering any securities
in the name of the Purchaser following the Closing, effective from the Closing,
each Seller hereby appoints the Purchaser as its proxy to vote the Ordinary
Shares subject to this Agreement on any matter coming before the shareholders
of
the Company. The aforesaid proxy shall immediately expire in the event that
this
Agreement is terminated by the Sellers in accordance with Section 5.6 below.
Purchaser is aware that the Company disputes the right of Sellers to vote the
Securities prior to the Closing with respect to such Securities.
5.4 No
Deductions.
No
Purchaser shall withhold, decduct or set-off any withholding taxes, or other
taxes, fees, levies, bank transfer fees or any any other sums whatsoever from
the Purchase Price transferred to the Escrow Agent.
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5.5 Notice
of Changes.
The
parties undertake to notify each other promptly upon any change affecting any
of
their respective representations and warranties in this Agreement or their
ability to perform any of their respective obligations hereunder.
5.6 Termination.
This
Agreement may be terminated by the Purchaser, on the one hand, or the Sellers,
on the other hand, if the Closing shall not have occurred by no later than
60
days from the date of this Agreement, or such later date as may be agreed upon
in writing by the parties hereto; provided, however, that the right to terminate
this Agreement under this Section 5.6 shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of,
or
resulted in the failure of the Closing to occur on or before such date. No
such
termination shall relieve any party from liability for any prior breach of
this
Agreement. Sellers shall have the right to immediately terminate this Agreement
in the event that the Purchaser shall fail within 4 Business Days of the date
of
signature of this Agreement to transfer to the Escrow Agent the full aggregate
Purchase Price payable to the Sellers pursuant to Section 2.2 in relation to
the
Conveyance Documents which have deposited with the Escrow Agent and which have
been presented to Purchaser.
5.7 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. Notwithstanding
anything else to the contrary herein, Xxx Xxxxxx shall be jointly and severally
liable with the other Sellers with respect to all of the Sellers’ obligations
hereunder.
5.8 Seller
Representative.
(a) Xxx
Xxxxxx is hereby appointed as the representative of the Sellers (the
“Seller
Representative”)
in
connection with this Agreement and the consummation of the transactions
contemplated hereby, and is authorized to act for the Sellers and in the
Sellers’ name, place and stead, in any and all capacities to do and perform
every act and thing required or permitted to be done in connection with the
transactions contemplated hereby, including to: (i) deliver all notices required
to be delivered by the Sellers under this Agreement, including any notice of
a
claim for which indemnification is sought under Section 8 and any notice of
a
third party claim under Section 8.3; (ii) receive all notices required to be
delivered to the Sellers under this Agreement, including any notice of a claim
for which indemnification is sought under Section 8 and any notice of a third
party claim under Section 8.3.
(b) A
decision, act, consent or instruction of the Seller Representative (an
“Authorized
Action”)
shall
constitute a decision, act, consent or instruction of all the Sellers and shall
be final, binding and conclusive upon each such Seller, and the Purchaser may
rely upon any Authorized Action of the Seller Representative as being the
decision, act, consent or instruction of each and every Seller. The Purchaser
is
hereby relieved from any liability to any Seller for any acts done by it in
accordance with such Authorized Action.
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5.9 Fees
of the Escrow Agent.
The
Sellers will be solely responsible for the fees and costs of the Escrow Agent
incurred in connection with this Agreement and pursuant to the terms and
conditions of the Escrow Agreement.
5.10 Purjes
Lawsuit.
Promptly following the Closing, Xxx Xxxxxx hereby covanants to irrevocably
and
unconditionally withraw and forever waive any and all pending lawsuits, claims
for any damages, expenses and legal fees of any kind, and dismissing or ceasing
the conduct of any proceedings initiated by him or his Affiliates against the
Company. The aforesaid is contingent, however, on the Company executing,
simultaneously, the same waiver toward Xxx Xxxxxx.
5.11 Legal
Opinion Invoice.
Within
seven Business Days following the date hereof, the Purchaser shall deliver
to
Xxx Xxxxxx a copy of the invoice for the legal opinion obtained by the Purchaser
in connection with this Agreement.
SECTION
6. THE
PURCHASER’S CLOSING CONDITIONS
The
obligation of the Purchaser to purchase the Securities on the Closing Date,
as
provided in Section 2 hereof, shall be subject, in the absence of a written
waiver by such Purchaser, to the performance by each Seller of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto
or
concurrently therewith, of the following further conditions:
6.1 Representations
and Warranties.
The
representations and warranties of each Seller contained in this Agreement shall
be true and correct in all respects on and as of the Closing Date as though
such
warranties and representations were made at and as of such date.
6.2 Compliance
with Agreement.
Each
Seller shall have performed and complied in all respects with all agreements,
covenants and conditions contained in this Agreement which are required to
be
performed or complied with by it prior to or on the Closing Date.
6.3 Injunction.
There
shall be no effective injunction, writ, preliminary restraining order or any
order of any nature issued by a court of competent jurisdiction directing that
the transactions provided for herein or any of them not be consummated as herein
provided.
6.4
Closing Documents.
The
Sellers shall have delivered to the Purchaser all instruments and documents
required to be delivered by them pursuant to Section 2.2(b) and all such
instruments and documents shall be in form and substance reasonably satisfactory
to the Purchasers.
SECTION
7. THE
SELLERS’ CLOSING CONDITIONS
The
obligation of the Sellers to sell the Securities on the Closing Date, as
provided in Section 2 hereof, shall be subject, in the absence of a written
waiver by the Sellers, to the performance by the Purchaser of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto
or
concurrently therewith, of the following further conditions:
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7.1 Representations
and Warranties.
The
representations and warranties of the Purchaser contained in this Agreement
shall be true on and as of the Closing Date in all respects as though such
warranties and representations were made at and as of such date.
7.2 Compliance
with Agreement.
The
Purchaser shall have performed and complied in all respects with all agreements,
covenants and conditions contained in this Agreement which are required to
be
performed or complied with by it prior to or on the Closing Date.
7.3 Injunction.
There
shall be no effective injunction, writ, preliminary restraining order or any
order of any nature issued by a court of competent jurisdiction directing that
the transactions provided for herein or any of them not be consummated as herein
provided.
SECTION
8. INDEMNIFICATION
8.1 Indemnification
by the Sellers.
The
Sellers shall, subject to Section 5.7, severally, indemnify, defend and hold
harmless the Purchaser, its affiliates and their respective directors, officers,
employees or representatives, from and against any and all claims, costs,
expenses, damages, liabilities or losses (including, without limitation, from
and against any judgment, settlement, reasonable attorneys’ fees and other
reasonable out-of-pocket costs or expenses incurred in connection with the
defense of any action or threatened action or proceeding) (collectively,
“Claims”)
to the
extent relating to or arising out of any breach of any representation, warranty,
covenant or agreement of the Sellers contained in this Agreement.
8.2 Indemnification
by the Purchasers.
The
Purchaser agrees to indemnify, defend and hold harmless the Sellers from and
against any and all Claims to the extent relating to or arising out of any
breach of any representation, warranty, covenant or agreement of such Purchaser
contained in this Agreement.
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8.3 Third
Party Claims Relating to Representations and Warranties.
Promptly after the receipt by any of the Sellers or the Purchaser of notice
of
any claim, action, suit or proceeding by any person or entity who is not a
party
to this Agreement (collectively, an “Action”)
relating to an representation or warranty given by a party under this Agreement
and which is subject to indemnification hereunder, such party (the “Indemnified
Party”)
shall
give written notice of such Action to the party from whom indemnification is
claimed (the “Indemnifying
Party”).
The
Indemnified Party’s failure to so notify the Indemnifying Party of any such
matter shall not release the Indemnifying Party, in whole or in part, from
its
obligations to indemnify under this Section 8, except to the extent the
Indemnified Party’s failure to so notify actually and materially prejudices the
Indemnifying Party’s ability to defend against such Action. Unless otherwise
agreed by the parties, the Indemnified Party shall be entitled, at the sole
expense and liability of the Indemnifying Party, to exercise full control of
the
defense, compromise or settlement of any such Action unless the Indemnifying
Party, within a reasonable time after the giving of such notice by the
Indemnified Party, shall: (i) admit in writing to the Indemnified Party, the
Indemnifying Party’s liability to the Indemnified Party for such Action under
the terms of this Section 8; (ii) notify the Indemnified Party in writing of
the
Indemnifying Party’s intention to assume the defense thereof; and (iii) retain
legal counsel reasonably satisfactory to the Indemnified Party to conduct the
defense of such Action. The Indemnified Party and the Indemnifying Party shall
cooperate with the party assuming the defense, compromise or settlement of
any
such Action in accordance herewith in any manner that such party reasonably
may
request. If the Indemnifying Party so assumes the defense of any such Action,
the Indemnified Party shall have the right to employ separate counsel and to
participate in (but not control) the defense, compromise, or settlement thereof,
but the fees and expenses of such counsel shall be the expense of the
Indemnified Party unless (A) the Indemnifying Party has agreed to pay such
fees
and expenses, (B) any relief other than the payment of money damages is sought
against the Indemnified Party or (C) the Indemnified Party shall have been
advised by its counsel that there may be one or more legal defenses available
to
it which are different from or additional to those available to the Indemnifying
Party, and in any such case the reasonable fees and expenses of such separate
counsel shall be borne by the Indemnifying Party. No Indemnified Party shall
settle or compromise or consent to entry of any judgment with respect to any
such Action for which it is entitled to indemnification hereunder without the
prior written consent of the Indemnifying Party. No Indemnifying Party shall,
without the written consent of the Indemnified Party, settle or compromise
or
consent to entry of any judgment with respect to any such Action in which any
relief is sought against any Indemnified Party unless such settlement,
compromise or consent includes as an unconditional term thereof the giving
by
the claimant, petitioner or plaintiff, as applicable, to such Indemnified Party
of a release from all liability with respect to such Action. It is hereby
clarfied and agreed that the Indemnifying Party’s admission referred to in
clause (i) above of its liability to the Indemnified Party for an Action filed
on the grounds set forth in this Section 8.3 shall not be deemed as an admission
that any liablity exists by the Indemnifying Party toward any party other than
toward the Indenminfied Party.
8.4 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.
-11-
8.5 Other
Third Party Claims.
Promptly after the receipt by any of the Sellers or the Purchaser of notice
of
any Action not relating to a representation or warranty given by a party under
this Agreement, which is subject to indemnification hereunder, such party shall
give written notice of such Action to the Indemnified Party. The Indemnified
Party’s failure to so notify the Indemnifying Party of any such matter shall not
release the Indemnifying Party, in whole or in part, from its obligations to
indemnify under this Section 8 except to the extent the Indemnified Party’s
failure to so notify actually and materially prejudices the Indemnifying Party’s
ability to defend against such Action. Unless otherwise agreed by the parties,
the Indemnifying Party shall be entitled, at the sole expense and liability
of
the Indemnifying Party, to exercise full control of the defense, compromise
or
settlement of any such Action, provided that the Indemnifying Party shall (i)
notify the Indemnified Party in writing of the Indemnifying Party’s intention to
assume the defense thereof; and (ii) retain legal counsel reasonably
satisfactory to the Indemnified Party to conduct the defense of such Action.
The
Indemnified Party and the Indemnifying Party shall cooperate with the party
assuming the defense, compromise or settlement of any such Action in accordance
herewith in any manner that such party reasonably may request. If the
Indemnifying Party so assumes the defense of any such Action, the Indemnified
Party shall have the right to employ separate counsel and to participate in
(but
not control) the defense, compromise, or settlement thereof, but the fees and
expenses of such counsel shall be the expense of the Indemnified Party unless
(A) the Indemnifying Party has agreed to pay such fees and expenses, (B) any
relief other than the payment of money damages is sought against the Indemnified
Party or (C) the Indemnified Party shall have been advised by its counsel that
there may be one or more legal defenses available to it which are different
from
or additional to those available to the Indemnifying Party, and in any such
case
the reasonable fees and expenses of such separate counsel shall be borne by
the
Indemnifying Party. No Indemnified Party shall settle or compromise or consent
to entry of any judgment with respect to any such Action for which it is
entitled to indemnification hereunder without the prior written consent of
the
Indemnifying Party. No Indemnifying Party shall, without the written consent
of
the Indemnified Party, settle or compromise or consent to entry of any judgment
with respect to any such Action in which any relief is sought against any
Indemnified Party unless such settlement, compromise or consent includes as
an
unconditional term thereof the giving by the claimant, petitioner or plaintiff,
as applicable, to such Indemnified Party of a release from all liability with
respect to such Action.
SECTION
9. MISCELLANEOUS
9.1 Governing
Law.
(a) With
respect to claims brought against the Purchaser (or its respective affiliates,
directors, officers, shareholders, employees or agents), (i) 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 and (ii) each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement shall be commenced in the competent
courts located in Tel-Aviv, Israel.
(b) With
respect to claims brought against any Seller (or its respective affiliates,
directors, officers, shareholders, employees or agents), (i) 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 New York, without regard to the
principles of conflicts of law thereof and (ii) each party agrees that all
legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement shall be commenced in any competent
Federal or State court located in New York, NY.
-12-
(c) Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of either
the New York, NY or Tel-Aviv courts (as applicable, in accordance with clauses
(a) and (b) above) 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.
9.2 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.
9.3 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:
c/o
Goldfarb, Levy, Eran, Meiri & Co.
0
Xxxxxxxx Xxxxxx
Xxx-Xxxx
00000, Xxxxxx
Facsimile:
x000-0-0000-000
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:
x000-0-0000-000
Attention:
Xxxx X. Xxxxx, Adv.
if
to the
Sellers: to the addresses set forth in Schedule
II.
each
notice to the Sellers, with a copy to (which shall not constitute
notice):
Xxxx
Xxxxx, Adv.
00
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
00000, Xxxxxx
Facsimile:
x000-0-0000000
(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.
-13-
9.4 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.
9.5 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.
9.6 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 9.6 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 the
applicable Seller.
9.7 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.
9.8 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.
9.9 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.
9.10 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.
-14-
IN
WITNESS WHEREOF the parties have signed this Securities Purchase Agreement
as of
the date first hereinabove set forth.
THE
PURCHASER:
|
/s/
Xxxxxxx Xxxxxxx
|
|
|
Xxxxxxx
Xxxxxxx
|
THE
SELLERS:
|
/s/
Xxx Xxxxxx
|
|
|
Xxx
Xxxxxx
|
|
/s/
Xxxx Xxxxxx
|
|
|
Xxxx
Xxxxxx
|
FIRST
PURJES DESCENDANTS, L.P.
|
By:
|
/s/
Xxx Xxxxx
|
||
|
Name:
|
Xxx
Xxxxxx
|
||
|
Title:
|
Chairman
and Managing Member, Purjes Management LLC
|
||
|
General
Partner, First Purjes Descendants, L.P.
|
|||
SECOND
PURJES DESCENDANTS, L.P.
|
By:
|
/s/
Xxx Xxxxxx
|
||
|
Name:
|
Xxx
Xxxxxx
|
||
|
Title:
|
Chairman
and Managing Member, Purjes Management LLC
|
||
|
General
Partner, Second Purjes Descendants, L.P.
|
|||
THE
PURJES FOUNDATION
|
By:
|
/s/
Xxx Xxxxxx
|
||
|
Name:
|
Xxx
Xxxxxx
|
||
|
Title:
|
Chairman
|
||
XXXX
DESCENDANTS, L.P.
|
By:
|
/s/
Xxxx Xxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxx
|
||
|
Title:
|
President
and Managing Member, Purjes Management LLC
|
||
|
General
Partner, Xxxx Descendants, L.P.
|
|||
-15-
Schedule
I
The
Sellers
|
Seller
Name
|
Number
of Shares
|
Number
of Warrants
(Exercise
Price)
|
Purchase
Price Per Warrant
|
Aggregate
Purchase Price for Shares and Warrants (US$)
|
|
Xxx
Xxxxxx or Xxx and Xxxx Xxxxxx
|
3,404,667
|
331,731
($0.52)
|
$0.23
|
2,629,798
|
|
Xxx
Xxxxxx
|
3,000,000
($0.75)
|
$0.05
|
150,000
|
|
|
Xxx
Xxxxxx
|
81,897
|
79,145
($0.62)
32,654
($0.52)
20,474
($1.54)
|
$0.13
$0.23
$1.00
for all
|
79,223
|
|
Xxx
Xxxxxx
|
129,310
($1.16)
|
$0.03
|
3,879
|
|
|
Xxx
Xxxxxx
|
14,423
($0.52)
|
$0.23
|
3,317
|
|
|
First
Purjes Descendants, L.P.
|
80,645
|
14,423
($0.52)
|
$0.23
|
63,801
|
|
Second
Purjes Descendants, L.P.
|
80,645
|
14,423
($0.52)
|
$0.23
|
63,801
|
|
The
Purjes Foundation
|
14,423
($0.52)
|
$0.23
|
3,317
|
|
|
Xxxx
Descendants, L.P.
|
40,000
|
30,000
|
||
|
Total
|
3,687,854
|
3,651,006
|
3,027,136
|
-16-
Schedule
II
Addresses
of the Sellers
|
Seller
Name
|
Seller
Address
|
|
Xxx
Xxxxxx
|
c/o
Xxx Xxxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
|
|
First
Purjes Descendants, L.P.
|
Same
|
|
Second
Purjes Descendants, L.P.
|
Same
|
|
The
Purjes Foundation
|
Same
|
|
Xxxx
Descendants, L.P.
|
Same
|
-17-
