Exhibit 4.6
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "AGREEMENT") made as of 18th day of August, 1999,
by and among NUR MACROPRINTERS LTD., an Israeli company (the "COMPANY"),
DOVRAT & CO. LTD. ("DOVRAT") and ISAL AMLAT INVESTMENT (1993) LTD. ("ISAL").
WHEREAS concurrently with the execution of this Agreement the parties have
executed a Share and Warrant Purchase Agreement, dated August 18,
1999, to which this Agreement is appended to (the "INVESTMENT
AGREEMENT"), according to which Dovrat and Isal were granted warrants
(the "WARRANTS") to purchase up to 15,000 and 135,000 (respectively)
Ordinary Shares of par value NIS 1.00 each of the Company ("ORDINARY
SHARES"); and
WHEREAS the parties wish to determine the terms and conditions of the
Warrants, as set forth herein.
NOW, THEREFORE, in the consideration of the mutual promises and
covenants set forth herein, the parties agree as follows:
1. GRANT.
Subject to the terms and conditions hereof, the Company hereby
grants the Holder (as defined in Section 3 hereof), the right to purchase, at
any time from August 18, 1999 until 5:30 P.M. Israel time, on August 17, 2003
(the "EXERCISE PERIOD"), at the initial exercise price per share of US$8.00
(subject to adjustment as provided in Article 8 hereof), up to such amount of
fully paid and non-assessable Ordinary Shares as set forth opposite the names
of Isal and Dovrat in SCHEDULE 1 ("WARRANT SHARES").
2. WARRANT CERTIFICATES. The warrant certificates (the "WARRANT
CERTIFICATES") delivered and to be delivered pursuant to this Agreement shall
be in the form set forth in EXHIBIT A attached hereto and made a part hereof,
with such appropriate insertions, omissions, substitutions, and other
variations as required or permitted by this Agreement.
3. EXERCISE OF WARRANT.
3.1 DISCRETIONARY EXERCISE. The Warrants are exercisable at an
initial exercise price (subject to adjustment as provided in Section 8
hereof) per Ordinary Share set forth in Section 6 hereof, payable by
certified check. Upon surrender of a Warrant Certificate with the annexed
Form of Election to Purchase duly executed, together with payment of the
Purchase Price (as hereinafter defined) for the Ordinary Shares purchased at
the Company's principal offices (presently located at 0 Xxxxx Xxxxx Xxxxxx,
Xxxxxx Xxxxxxxxx, Israel, 56910) the registered holder of a Warrant
Certificate (the "HOLDER" or "HOLDERS") shall be entitled to receive a
certificate or certificates for the Ordinary Shares so purchased. The
purchase rights represented by each Warrant Certificate are exercisable at
the option of the Holder thereof, in whole or in part (but not as to
fractional Ordinary Shares underlying the Warrants). Warrants may be
exercised to purchase all or part of the total number of Ordinary Shares
requested thereby. In the case of the purchase of less than all the Ordinary
Shares purchasable under any Warrant Certificate, the Company shall cancel
said Warrant Certificate upon the surrender thereof and shall execute and
deliver a new Warrant Certificate of like tenor for the balance of the
Ordinary Shares purchasable thereunder.
3.2 COMPULSORY EXERCISE. Notwithstanding the aforesaid, prior to
the expiry of the Exercise Period, the Company may demand the exercise by the
Holder of the Warrant Shares in the event that: (i) the price of one (1)
Ordinary Shares, as quoted on the Nasdaq National List, is US$11 or more for
a consecutive period of twenty (20) days in which trading was conducted in
the Company's shares on Nasdaq; or (ii) the closing of a public offering by
the Company, at an effective price per Ordinary Share (i.e. taking into
account the economical value of other securities offered, if any) of US$11 or
more (any of the foregoing, an "EXERCISE EVENT"). Upon the occurrence of an
Exercise Event, the company shall send to the Holders written notices of the
particulars of the Exercise Event, after which the Holders shall be entitled,
within 10 days after receipt of such notice (the "COMPULSORY EXERCISE
PERIOD"), transfer to the Company the Exercise Price for any Warrant Share
such Holder wishes to exercise, according to the procedure set forth in
Section 3.1 above.
3.3 Without derogating from the aforesaid, immediately after the
end of the Exercise Period or the Compulsory Exercise Period, as applicable,
the right of the Holders to exercise the Warrants shall automatically expire.
4. ISSUANCE OF CERTIFICATES. Upon the exercise of the Warrants, the
issuance of certificates for Ordinary Shares or other securities, properties
or rights underlying such Warrants, shall be made forthwith (and in any event
within five (5) business days thereafter) without charge to the Holder
thereof, and such certificates shall (subject to the provisions of Sections 5
and 7 hereof) be issued in the name of, or in such names as may be directed
by, the Holder thereof; 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 (e.g. 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.
The Warrant Certificates and the certificates representing the Ordinary
Shares (and/or other securities, property or rights issuable upon the
exercise of the Warrants) shall be executed on behalf of the Company by the
manual or facsimile signature of Company's authorized signatory(ies) under
its corporate stamp reproduced thereon, attested to by the manual or
facsimile signature of the then present Secretary or Assistant Secretary of
the Company. Warrant Certificates shall be dated the date of execution by the
Company upon initial issuance, division, exchange, substitution or transfer.
5. RESTRICTION ON TRANSFER OF WARRANTS. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the
Warrants described therein are being acquired as an investment and not with a
view to the distribution thereof.
The Holder shall not assign or transfer any of the Warrant and/or
Warrant Certificates to any third party, other than following a bona fide
sale or transfer by the Holder to any unaffiliated transferee thereof of all
the Ordinary Shares purchased by such Holder under the Investment Agreement
and/or transfer by each of the Holders of up to 10% of the Warrants to Mt.
Xxxxxxxxx Xxxxx and/or Xx. Xxxxx Peuchas, provided however, that Section 7
below shall not pertain to the Ordinary Shares underlying the Warrant
Certificates transferred as aforesaid. The Holder may assign or transfer any
of the Warrant Certificates to entities controlling, controlled or under
common control with, such Holder. For purpose of this Section 5, "CONTROL"
shall bear the meaning of such term in Section 1 of the Israeli Securities
Law, 1968.
6. EXERCISE PRICE.
6.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise
provided in Section 8 hereof, the initial exercise price of each Warrant
shall be US$8.00 per Ordinary Share. The adjusted exercise price of each
Warrant shall be the price which shall result from time to time from any and
all adjustments of the initial exercise price in accordance with the
provisions of Section 8 hereof.
6.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. REGISTRATION RIGHTS.
7.1 REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(a) The Warrants, and the Ordinary Shares issuable upon
exercise of the Warrants, have not been registered under the Securities Act
of 1933, as amended (the "Act"). Upon exercise, in part or in whole, of the
Warrant certificates representing the Ordinary Shares and any other
securities issuable upon exercise of the Warrants shall bear the following
legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended ("Act"),
and may not be offered or sold except pursuant to (i) an
effective registration statement under the Act, (ii) to the
extent applicable, Rule 144 under the Act (or any similar
rule under such Act relating to the disposition of securities),
or (iii) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel to the issuer, that an
exemption from registration under such Act is available.
(b) Holders of the Ordinary Shares shall be entitled to all of the
rights and privileges relating to registration rights afforded to the Holders
in the Investment Agreement (including the Registration Rights Agreement
attached thereto), which is incorporated herein by reference and expressly
made a part hereof.
8. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES.
8.1 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.
8.2 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 8.2 shall be made as of the record date for the subject stock
dividend or distribution.
8.3 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 8, 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.
8.4 DEFINITION OF ORDINARY SHARES. For the purpose of this
Agreement, the term "Ordinary Shares" shall mean (i) the class of shares
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 shares
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.
8.5 MERGER OR CONSOLIDATION. In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
or sale by the Company of all or substantially all of its assets to another
corporation (other than a consolidation or merger which does not result in
any reclassification or change of the outstanding Ordinary Shares), the
corporation
formed by such consolidation or merger or acquiror of such assets shall
execute and deliver to the Holder a supplemental warrant agreement providing
that the Holder of each 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 consolidation 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 8. The above provision of this Subsection shall similarly apply to
successive consolidations or mergers.
8.6 NO ADJUSTMENT OF EXERCISE PRICE IN CERTAIN CASES. No adjustment
of the Exercise Price shall be made.
(a) Upon the issuance or sale of the Warrants or the Ordinary
Shares issuable upon the exercise of the Warrants or the options, rights and
Warrants issued and outstanding on the date hereof; or
(b) 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.
9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by
the registered Holder at the principal executive office of the Company, for a
new Warrant Certificate of like tenor and date representing in the aggregate
the right to purchase the same number of Ordinary Shares in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of the
Warrants, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu therof.
10. ELIMINATION OF PRACTICAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of Ordinary Shares upon
the exercise of the Warrants, nor shall it be required to issue scrip or pay
cash in lieu of fractional interests, it being the intent of the parties that
all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of Ordinary Shares, or other securities, properties
or rights
11. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized Ordinary Shares,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of Ordinary Shares or other securities, properties or rights as shall
be issuable upon the exercise thereof. The Company covenants and agrees that,
upon exercise of the Warrants and payment of the Exercise Price therefor, all
Ordinary Shares and other securities issuable upon such exercise shall be
duly and validly issued, full paid, non-assessable and not subject to the
preemptive rights of any stockholder. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause all Ordinary
Shares issuable upon the exercise of the Warrants to be listed (subject to
official notice of issuance) on all securities exchanges, if any, on which
the Ordinary Shares issued to the public in connection herewith may then be
listed and/or quoted on NASDAQ.
12. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement
shall be construed as conferring upon the Holders 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 of the Warrants and their exercise, 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 than 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 thereof; 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 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.
13. NOTICES. All notices, requests, consents and other communications
hereunder shall in writing, and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt
requested;
(a) If to the registered Holder of the Warrants, to the address of such
Holder as shown on the books of the Company; or
(b) If to the Company, at X.X. Xxx 0000, Xxxxxx Xxxxxxxxx, Xxxxxx, 00000
or to such other address as the Company may designate by notice to the
Holders.
14. SUPPLEMENTS AND AGREEMENTS. The Company and the Holder may from time
to time supplement or amend this Agreement without the approval of any
Holders of Warrant Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and
Josephthal may deem necessary or desirable and which the Company and
Xxxxxxxxxx xxxx shall not adversely affect the interests of the Holders of
Warrant Certificates.
15. SUCCESSORS. All the covenants and provisions of this Agreement shall
be binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
16. TERMINATION. This Agreement shall terminate at the close of business
on August 17, 2003.
17. GOVERNING LAW: SUBMISSION TO JURISDICTION. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Israel and for all purposes shall be construed
in accordance with the laws of said State, without giving effect to the rules
of said State governing the conflicts of laws.
The Company and the Holders hereby agree that any action, proceeding or
claim against it arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the State of New York or of
the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company and the Holders hereby irrevocably waive any objection
to such exclusive jurisdiction or inconvenient forum. Any such process or
summons to be served upon any of the Company and the Holders (at the option
of the party bringing such action, proceeding or claim) may be served by
transmitting a copy thereof, by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in
Section 13 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the party so served in any action, proceeding or
claim. The Company and the Holders agree that the prevailing party(ies) in
any such action or proceeding shall be entitled to recover from the other
party(ies) all of its/their reasonable legal costs and expenses relating to
such action or proceeding and/or incurred in connection with the preparation
therefor.
18. ENTIRE AGREEMENT: MODIFICATION. This Agreement (including the
Investment Agreement to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to
the subject matter hereof and may not be modified or
amended except by a writing duly signed by the party against whom enforcement
of the modification or amendment is sought.
19. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
20. CAPTIONS. The caption headings of the Sections of this Agreement are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive
effect.
21. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and any
other Holder(s) of the "Warrant Certificates or Ordinary Shares any right,
remedy or claim under this Agreement; and this Agreement shall be for the
sole and exclusive benefit of the Company any other Holder(s) of the Warrant
Certificates or Ordinary Shares.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
NUR MACROPRINTERS LTD.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
President & Chief Executive Officer
DOVRAT & CO. LTD. ISAL AMLAT INVESTMENT (1993) LTD.
By: /s/ Illegible By: /s/ Illegible
----------------------- ----------------------------------
Name: Name
Title: Title:
EXHIBIT A
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES
ISSUABLE UPON EXERCISE HEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO
(i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT
(OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
No. W- Warrants
----------------------- ---------
WARRANT CERTIFICATE
This Warrant Certificate certifies that __________________, or
registered assigns, is the registered holder of a warrant exercisable, at any
time from August ___, 1999 until 5:30 p.m. Israel time on August ___, 2003
(the "EXERCISE PERIOD" and "EXPIRATION DATE"), up to _____ fully-paid and
non-assessable Ordinary Shares, NIS 1.0 nominal value per share (the
"ORDINARY SHARES" and "WARRANT SHARES") of Nur Macroprinters Ltd., an Israeli
corporation (the "COMPANY"), at the initial exercise price, subject to
adjustment in certain events of US$8.00 per Ordinary Share (the "EXERCISE
PRICE"); upon surrender of this Warrant Certificate and payment of the
applicable Exercise Price at an office or agency of the Company, but subject
to the conditions set forth herein and in the Warrant Agreement dated as of
August 18, 1999 between the Company, Dovrat & Co. Ltd. and Isal Amlat
Investment (1993) Ltd. (the "WARRANT AGREEMENT"). Payment of the applicable
Exercise Price shall be made by certified check payable to the order of the
Company.
Notwithstanding the aforesaid, as set forth in the Warrant
Agreement, prior to the expiry of the Exercise Period, the Company may demand
the exercise by the Holder of the Warrant Shares in the event that:
(i) The price of one (1) Ordinary Share, as quoted on the Nasdaq
National List, is US$11 or more for a consecutive period of twenty (20) days
in which trading was conducted in the Company's shares on Nasdaq; or
(ii) The closing of a public offering by the Company, at an
effective price per Ordinary Share (i.e. taking into account the economical
value of other securities offered, if any) of US$11 or more.
No Warrant may be exercised after 5:30 p.m., Israel time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference herein and made a part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "HOLDERS" or "HOLDER" meaning the
registered holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events, the then applicable Exercise Price and the type and/or number of the
Company's securities issuable thereupon may, subject to certain conditions,
be adjusted. In such event, the Company will, at the request of the holder,
issue a new Warrant Certificate evidencing the adjustment in the then
applicable Exercise Price and the number and/or type of securities issuable
upon the exercise of the Warrants; provided, however, that the failure of the
Company to issue such new Warrant Certificates shall not in any way change,
after, or otherwise impair, the rights of the holder as set forth in the
Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate
or Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided herein and in the
Warrant Agreement, without any charge except for any tax or other
governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate stamp.
Dated August 18, 1999
NUR MACROPRINTERS LTD.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
President & Chief Executive Officer
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase [CHECK APPROPRIATE BOX]:
all the Ordinary Shares under the Warrant Certificate; or
part [___________][INDICATE NUMBER] of the Ordinary Shares under the
Warrant Certificate:
and herewith tenders in payment for such securities a certified check payable
to the order of NUR MACROPRINTERS LTD. in the amount of $________, all in
accordance with the terms hereof. The undersigned requests that a certificate
for such securities be registered in the name of _____________________________
_______________________________________ whose address is _____________________
_____________________________________________ such Certificate be delivered to
________________________________________ whose address is ____________________
_________________________________________________.
Dated:
Signature __________________________________
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
[FORM OF ASSIGNMENT]
(To be executed, subject to the limitations set forth in the Warrant
Agreement, by the registered holder if such holder desires to transfer the
Warrant Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest
therein, and hereby irrevocably constitutes and appoints ______________________
______________ Attorney, to transfer the within Warrant Certificate on the
books of the within-named Company, with full power of substitution.
Dated:
Signature __________________________________
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate.)
(Insert Social Security or Other Identifying Number of Assignee).
SCHEDULE 1
----------
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DOVRAT ISAL TOTAL
INVESTMENT -------------------------- ------------------------- -------------------------
ORDINARY US$ ORDINARY US$ ORDINARY in US$
SHARES SHARES SHARES
----------------------------------------------------------------------------------------------
ISSUED 60,000 330,000 540,000 2,970,000 600,000 3,300,000
SHARES
----------------------------------------------------------------------------------------------
WARRANTS 15,000 120,000 135,000 1,080,000 150,000 1,200,000
----------------------------------------------------------------------------------------------
TOTAL 75,000 450,000 675,000 4,050,000 750,000 4,500,000
----------------------------------------------------------------------------------------------
SCHEDULE 9
REGISTRATION RIGHTS AGREEMENT
The following provisions shall govern the registration of Issued Shares and
the Warrant Shares (upon the exercise thereof):
1. DEFINITIONS.
Unless otherwise defined herein, all capitalized terms shall bare the
meaning ascribed thereto in the Investment Agreement (as defined below). As
used herein, the following terms have the following meaning:
"AGREEMENT" means this Registration Rights Agreement
"INVESTMENT AGREEMENT" means that certain Share and Warrant Purchase
Agreement, date August __, 1999, between Nur Macroprinters Ltd., Dovrat & Co.
Ltd. and Isal Amlat Investment (1993) Ltd.
"ORDINARY SHARES" means Ordinary Shares of par value NIS 1.00 each
of the Company.
"HOLDER" means any holder of outstanding Registrable Shares or
shares convertible into Registrable shares, who acquired such Registrable
Shares or shares convertible into Registrable Shares in a transaction or
series of transactions not involving any registered offering.
"COMMISSION" refers to the Securities and Exchange Commission.
"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 Ordinary Shares purchased by Isal and
Dovrat pursuant to the Investment Agreement and any Ordinary Shares exercised
under the Warrant (as defined therein).
"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 proposes to
register any of its securities, other than in a demand registration under
Section 3 or Section 5 of the Agreement, on any form (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 employer benefit plan),
for its own account or for the
account of any other person, including in an initial public offering, it
shall give notice to the Holder of such intention. Upon the written request
of the Holder 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 Holder. Notwithstanding any other
provision of this Section 2, with respect to an underwritten initial 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 Holder 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 Securities are excluded from such underwriting, the
Holder shall agree not to sell its 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 Holder to complete the distribution and resale of its Registrable
Shares.
3. DEMAND REGISTRATION. The Holders are entitled once (1) to request
in writing that all or part of the Registrable Shares shall be registered
under the Securities Act ("DEMAND"). Such Demand must request the
registration of shares in a minimum of two million United States Dollars
($2,000,000). Thereupon, the Company shall effect the registration, on Form
F-1 or on Form F-3 (or F-3, or any successor form for securities to be
offered in a transaction of the type referred to in Rule 415 under the
Securities Act, and any related qualification or compliance), of all
Registrable Shares as to which it has received such request for registration
as promptly as practicable; provided, however, that the Company shall not be
required to effect any registration under this Section 3 within a period of
one hundred and eighty (180) days, (but shall be required to prepare and file
the registration statement within such period), following the effective date
of a previous registration in which the Holder had the right to participate
pursuant to Section 2. Should the lock-up in accordance with Section 12 below
be for a period short than 180 days, then the 180 period of the preceding
sentence shall be shortened accordingly.
In the event that the Holders shall exercise the Warrants in full
(according to the terms of the Investment Agreement), and prior to such
exercise the Holders shall also have exercised the Demand, then the Holders
shall be entitled to one additional demand registration (on F-1 or F-3 forms,
if available) with respect to the Warrant Shares, and the provisions of this
Section 3 above shall apply to such demand registration.
4. DELAY OF REGISTRATION. The Company may delay the filing or
effectiveness of any registration statement prepared pursuant to Section 3
for a period of up to 180 days (and, if the Company makes a good faith
determination that further delay is necessary, for up to an additional 60
days) after the date of a request for registration pursuant to Section 3, if
the Company determines in good faith that (a) it is in possession of
material, non-public information concerning an acquisition,
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merger, recapitalization, consolidation, reorganization, or other material
transaction by or of the Company, and (b) disclosure of such information
would jeopardize any such transaction or otherwise materially harm the
Company; provided, however, that the Company may exercise such right to delay
the filing of a registration statement only once and that such delay period
will not delay the effectiveness of a registration statement demanded under
Section 3 beyond a period of 180 days following the effective date of a
previous registration.
5. TERMINATION OF REGISTRATION RIGHTS
5.1 No Holder shall be entitled to exercise any right provided for
in Sections 2 or 3 hereof, after four years following the date of the Closing
of the Investment Agreement.
5.2 In addition, the right of any Holder to request registration
pursuant to Sections 2 and 3 shall terminate with respect to such Holder upon
such date that all shares of Registrable Securities held or entitled to be
held upon conversion by such Holder may immediately be sold under Rule 144
(or any successor rule) during any sixty-day period.
6. DESIGNATION OF UNDERWRITER.
6.1 In the event of any registration effected pursuant to Section
3, the Holders that submitted the request for registration may provide their
recommendation of candidates to be the managing underwriter(s) in any
underwritten offering and the Company shall have the sole discretion to
accept such candidate or offer a different managing underwriter(s).
6.2 In the case of any registration initiated by the Company, the
Company shall have the right to designate the managing underwriter in any
underwritten offering.
7. EXPENSES. All expenses incurred in connection with any registration
under Section 2 or Section 3 shall be borne by the Company; provided, however,
that the Holder shall pay its pro rata portion of the discounts payable to
any underwriter.
8. INDEMNITIES. In the event of any registered offering of Ordinary
Shares pursuant to this Agreement:
8.1 The Company will indemnify and hold harmless, to the fullest
extent permitted by law, the Holder and any underwriter for the Holder, and
each person, if any, who controls the Holder or such underwriter, 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) to which the Holder or any such underwriter or
controlling person 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
3
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, or (ii) the omission or alleged omission to state
therein a material fact required to be started therein or necessary to make
the statement therein, in the light of the circumstances in which they are
made, not misleading, and the Company will reimburse the Holder, such
underwriter, and each such controlling person of the Holder or the
underwriter, 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 cease 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 in writing by the Holder, such
underwriter, or such controlling persons 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 Sub-Section
8.1 shall not apply to amounts paid in settlement of any such claim, loss,
damage, liability, or action if such settlement is effected without the
consent of the Company, which consent shall not be unreasonably withheld.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Holder, the underwriter, or any
controlling, person of the Holder or the underwriter, and regardless of any
sale in connection with such offering by the Holder. Such indemnity shall
survive the transfer of securities by a Holder.
8.2 The Holder participating in a registration hereunder will indemnify
and hold harmless the Company, any underwriter for the Company, and each
person, if any, who controls the Company or such underwriter, from and
against any and all losses, damages, claims, liabilities, costs, or expenses
(including any amount paid in any settlement effected with the Holder's
consent) to which the Company or any such controlling person and/or any such
underwriter 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 or alleged untrue statement of any material fact contained in the
registration statement or included in the prospectus, as amended or
supplemented, or (ii) the omission or the alleged omission to state therein a
material fact required to be started therein or necessary to make the
statements therein, in the light of the circumstance in which they were made,
not misleading, and the Holder will reimburse the Company, any underwriter,
and each such controlling person of the Company or any underwriter, promptly
upon demand, for any reasonable legal or 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, 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 strict conformity with written information
furnished in a certificate by the 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
4
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 relive any underwriter of
any of its due diligence obligations; PROVIDED, FURTHER, that the indemnity
agreement contained in this Sub-Section 8.2 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 the Holder, as the case may be,
which consent shall not be unreasonably withheld. In no event shall the
liability of the Holder exceed the gross proceeds from the offering received
by the Holder.
8.3 Promptly after receipt by an indemnified party pursuant to the
provisions of Section 8.1 of 8.2 of notice of the commencement of any action
involving the subject matter of the foregoing indemnity provisions, such
indemnified party will, if a claim thereof is to be made against the
indemnifying party pursuant to the provisions of said Section 8.1 or 8.2,
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 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 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
party; PROVIDED, HOWEVER, that if the defendants in any action include both
the indemnified party and the indemnifying party and if in the reasonable
judgment of the indemnified party there are separate defenses that are
available to the indemnified party or there is a conflict of interest which
would prevent counsel for the indemnifying party from also representing the
indemnified party, the indemnified party or parties shall have the right to
select, at the expense of the indemnifying party, separate counsel to
participate in the defense of such action on behalf of such indemnified party
or parties; PROVIDED, FURTHER, HOWEVER, that if the Holder are the
indemnified party, the Holder shall be entitled to one 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 separate counsel at the
expense of the Company. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to
the provisions of said Section 8.1 or 8.2 for any legal or other expense
subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified 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 party to represent the indemnified party within a reasonable
time after the notice of the commencement of the action and within 15 days
after written notice of the indemnified party's intention to employ separate
counsel pursuant to the previous sentence, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. No indemnifying party will consent to
entry of any judgment of enter into any settlement which does not include as
an unconditional term thereof the
5
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation.
8.4 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 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, and in no event shall any contribution from
any Holder be more than the gross proceeds from the offering received by such
Holder.
9. OBLIGATIONS OF THE COMPANY. Whenever required under this Agreement
to effect the registration of any Registrable Shares, the Company shall, as
expeditiously as possible:
9.1 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, and, upon the request of the
Holder, keep such registration statement effective for a period of up to 90
days (for any registration other than under Form F-3 or S-3 which shall be
kept effective subject to the provisions of Rule 415), or, if sooner, until
the distribution contemplated in the Registration Statement has been
completed.
9.2 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.
9.3 Furnish to the Holder 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 them.
9.4 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. The Holder
participating in such underwriting shall also enter into and perform its
obligations under such agreement.
9.5 Notify each holder of Registrable Shares covered by such
registration statement at any time which 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
6
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 the 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.
9.6 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.
9.7 Provide a transfer agent and registrar for all Registrable
Shares registered pursuant hereunder and a CUSIP number for all such
Registrable Shares, in each case not latter than the effective date of such
registration.
9.8 Furnish, at the request of the Holder requesting registration
of Registrable Shares pursuant to this Agreement, 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 the Holder
requesting registration of Registrable Shares, 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 the Holder requesting registration of
Registrable Shares.
9.9 CONDITIONS TO REGISTRATION. The Company shall not be obligated
to effect the registration of the Registrable Shares pursuant to this
Agreement unless the Holder 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 prohibiting the sale of Registrable Shares by
the Holder form 30 days before the filing of the registration statement until
the registration statement becomes effective;
(b) conditions requiring the Holder to comply with all
applicable provisions of the Securities Act and the United States Securities
Exchange Act of 1934, as amended, (the "Exchange Act"), including, but not
limited to, the prospectus delivery requirement, and to furnish to the
Company information about sales made in such public offering; and
(c) conditions prohibiting the Holder, upon receipt of written
notice from the Company that it is required by law to correct or update the
7
registration statement or prospectus, from effecting sales of the Registrable
Shares until the Company has completed the necessary correction or updating.
10. ASSIGNMENT OF REGISTRATION RIGHTS: The Holder may assign its rights
to cause the Company to register Shares pursuant to this Agreement to a
transferee of ALL or any part of its Registrable Shares. The transferor
shall, within twenty (20) days after such transfer, furnish the Company with
written notice of the name and address of such transferee and the securities
with respect to which such registration rights are being assigned, and the
transferee's written agreement to be bound by this Agreement.
11. LOCK-UP. In any registration of the Company's shares, the Holder
acknowledge that any sales of Registrable Shares may be subject to a
"lock-up" period restricting such sales beginning thirty (30) days prior to,
and for up to one hundred and eighty (180) days following, the effective date
of such registration, and the Holder will agree to abide by such customary
"lock-up" period as is required by the underwriter in such registration.
12. CUSTOMARY ARRANGEMENTS. The 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 any customary underwriting arrangements, and (b) provides any 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 Holder
participating in the underwritten registration may appoint one legal or other
representative to negotiate the underwriting arrangements.
13. PUBLIC INFORMATION. At any time and from time to time after the
earlier of the close of business on such date as (a) a registration statement
filed by the Company under the Securities Act becomes effective, or (b) the
Company registers a class of securities under Section 12 of the Exchange Act,
the Company shall undertake to make publicly available and available to the
Investors adequate current public information within the meaning of, and as
required pursuant to, Rule 144.
14. 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 Holder registration rights in accordance with applicable law and
comparable in substance to the foregoing registration rights.
