Exhibit 2
This Share Purchase Agreement (this
“Agreement”) is entered into as of August 21, 2005, by and among NUR
Macroprinters Ltd., a company registered under the laws of the State of Israel (the
“Company”) and Fortissimo Capital Fund GP, LP on behalf of the several
limited partnerships for which it serves as the general partner, as well as on behalf of
any third party investors (the “Lead Investor”) together with any
subsidiary or any other entity controlled, controlling or under common control therewith
listed in Schedule A, a copy of which will be attached to this
Agreement prior to the Closing or any other person or entity listed in Schedule A
and agreed to by the Company (each, the “Investor” and
collectively, the “Investors”).
| WHEREAS, |
the Company wishes that the Investors make an investment in the Company and the Investors
agree to make an investment in the Company, upon the terms and conditions set forth
herein; |
NOW, THEREFORE, the parties
agree as follows:
| 1. |
INTERPRETATION;
DEFINITIONS |
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1.1. |
The
headings of the sections and subsections of this Agreement are for
convenience of reference only and are not to be considered in
construing this Agreement. |
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1.2. |
In
this Agreement, the following capitalized terms shall have the meanings set
forth below and all terms defined in the recitals to this Agreement
and below are incorporated herein by reference: |
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1.2.1. |
“Board” means
the Company’s board of directors. |
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1.2.2. |
“Debt
Restructuring Agreement” shall have the meaning ascribed to
it in Section 4.2.1(d) |
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1.2.3. |
“Escrow
Agent” means Adv. Xxxxxxxx Xxxxxxxx. |
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1.2.4. |
“Fully
Diluted Basis” means all issued Ordinary Shares, and all
outstanding options, warrants or any other securities issued by the
Company, which are convertible or exchangeable into Ordinary Shares. |
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1.2.5. |
“Management
Agreement” means that certain Management Agreement referred
to in Section 10 below, in the form attached hereto as Schedule
10.3. |
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1.2.6. |
“Ordinary
Shares” means ordinary shares of the Company, nominal value NIS
1.00 per share. |
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1.2.7. |
“Registration
Rights Agreement” means that certain Registration Rights
Agreement referred in Section 9 below, in the form attached hereto as Schedule 9. |
| 2. |
INVESTMENT;
ACQUIRED SHARES; GRANT OF WARRANTS |
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2.1. |
At
Closing (as defined below), the Company shall issue and the Investors shall
acquire 34,285,714 newly issued Ordinary Shares (the “Acquired
Shares”) in accordance with the terms of this Section 2,
free and clear of any lien, encumbrance, debt, or any other third
party right whatsoever at a price per share of US$0.35 (the “Price
Per Share”) and for an aggregate purchase price of US
$12,000,000 for all the Acquired Shares (the “Purchase Price”).
Actual issuances and purchase of the Acquired Shares shall be in
accordance with the terms and conditions set forth in the
sub-Sections below of this Section 2. |
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2.2. |
The
Purchase Price shall be paid to the Company in three installments as
follows: (i) US$5,000,000 at the Closing (the “1st Installment”),
(ii) US$5,000,000 on the date which is not later than 90 days
following the Closing (the “2nd Installment”),
and (iii) US$2,000,000 on the first anniversary of the Closing (the
“3rd Installment”). |
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2.3. |
At
the Closing, the Company shall issue to the Investors 25,714,286 warrants to
in accordance with the terms of this Section 2 (the “Warrants”)
exercisable into 25,714,286 newly issued Ordinary Shares (the “Warrant
Shares”) for an exercise price of US$0.40 per Warrant Share
(the “Exercise Price”). Upon issuance, the Warrant
Shares shall be free and clear of any lien, encumbrance debt, or any
other third party right whatsoever. A form of the Warrants to be
issued to the Investors is attached hereto as Schedule 4.2.1(c).
Actual grants of the Warrants shall be in accordance with the terms
and conditions set forth in the sub-Sections below of this Section 2. |
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2.4. |
The
Warrants shall be issued to the Investors at the Closing for no additional
payment or consideration. The Warrants may be exercised by the
holders thereof in whole or in part, against payment of the
applicable Exercise Price per Warrant Share, at any time, from time
to time, from the Closing and until the fifth (5th)
anniversary thereof (the “Exercise Period”). All
unexercised Warrants shall expire immediately after the end of the
Exercise Period. |
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2.5. |
On
and subject to the terms and conditions of this Agreement, at the Closing,
the Company shall sell, issue and allot to: (i) each Investor, the
number of 1st Installment Acquired Shares and 1st Installment
Warrants set forth against its name on Schedule A (the
“1st Installment Securities”), to
be issued to each Investor, (ii) to the Escrow Agent, the number of 2nd
Installment Acquired Shares and 2nd Installment
Warrants (the “2nd Installment Securities”)
of which the Escrow Agent will transfer to the Investors the number
of 2nd Installment Securities set forth against their name
on Schedule A, and (iii) to the Escrow Agent,
the number of 3rd Installment Acquired Shares and 3rd Installment
Warrants (the “3rd Installment Securities”)
of which the Escrow Agent will transfer to the Investors the number
of 3rd Installment Securities set forth against their
name on Schedule A. Notwithstanding anything to
the contrary contained herein, Schedule A may be
amended at the Lead Investor’s sole discretion prior to the date of the
2nd Installment and/or the 3rd Installment
(including to reflect an increased portion of the investment to be
made by the Lead Investor), provided that any new Investor acquires
securities subject to the terms and conditions of this Agreement
pursuant to a Joinder Agreement in the form attached hereto as Schedule
2.5. |
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2.6. |
To
ensure full performance of the obligations and undertakings of the Company
and the Investors in connection with the 2nd Installment
and the 3rd Installment, at the Closing, the Company shall
issue and allot to the Escrow Agent the 2nd Installment
Securities and the 3rd Installment Securities (collectively, the “Escrow
Securities”), to be held by the Escrow Agent in trust for
the Company and the Investors according to the number of Escrow
Securities set forth against each Investor’s name on Schedule
A. The Escrow Agent shall hold the Escrow Securities
in trust and release and transfer them to Investors upon receipt of a
confirmation from the Company’s bank, with respect to each
Investor, that such Investor paid its applicable portion of the 2nd Installment
or the 3rd Installment set forth against such Investor’s
name on Schedule A. All of the Escrow Agent’s
duties, rights and instructions in connection herewith shall be as
set forth in the Escrow Agreement attached hereto in Schedule
2.6(a)(the “Escrow Agreement”), executed by the Company, Escrow
Agent and the Investors on or prior to the date of Closing. For the
avoidance of doubt, for all purposes hereunder, until the date of
payment by the Investors of the 2nd Installment or the 3rd
Installment, as the case may be, the Escrow Agent shall vote,
execute written instruments and/or exercise any other rights of
holders in connection with the Escrow Securities pursuant to the
written instructions of the Lead Investor. In order to facilitate the
release of the Escrow Securities from the Escrow Agent to the
Investors upon payment by the Investors of the 2nd Installment
or the 3rd Installment, as applicable, the Escrow Agent and
Investors shall each execute transfer instruments in the form
attached hereto as Schedule 2.6(b), which
transfer instruments will be held by the Escrow Agent together with
the Escrow Securities. |
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2.7. |
In
addition to the foregoing, on or prior to August 30, 2005, the Investors
shall deposit with the Escrow Agent an amount of US$1,000,000 on
account of the aggregate Purchase Price (the “Escrow Amount”).
The Escrow Amount shall include any and all interest accumulated
thereon whilst in escrow, and shall be released according to the
following: |
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(a) |
If
the Closing takes place, the Escrow Agent shall, upon receipt of written
confirmation from the Company and the Lead Investor, transfer the
Escrow Amount to the Company. In these circumstances, the Escrow
Amount shall be deducted from the 1st Installment due and
payable by the Investors at Closing. |
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(b) |
If
the Closing does not take place due to: (i) the election of the Lead Investor
in accordance with the provisions of Sections 10.5 (Due Diligence) or
10.6 (Adverse Event), (ii) the Company’s failure to enter into
the Debt Restructuring Agreement within the twenty-one (21) days set
forth in Section 10.1 below, or (iii) the Company’s failure to
effect the Closing, then the Escrow Agent shall, upon receipt of
written instructions from the Lead Investor that the Closing did not
take place for any one of such reason(s), transfer the Escrow Amount
to the Investors. |
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(c) |
If
the Closing does not take place due to the election of the Lead Investor for
reasons other than those provided for under Sections 10.5 (Due
Diligence) and 10.6 (Adverse Event), then, as the Company’s sole
remedy, the Escrow Agent shall transfer the Escrow Amount to the
Company as an investment by the Investors at a purchase price per
share equal to the Price Per Share against the issuance by the
Company of 2,857,143 Ordinary Shares. Notwithstanding the above, in
the event that within twelve (12) months of the date hereof the Company
consummates a private placement at a per share price lower than the
Price Per Share (the “Lower Price”), then the
Investors will be issued promptly such number of additional Ordinary
Shares as may be required to reflect the investment by the Investors
of the Escrow Amount at such Lower Price. |
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2.8. |
In
the event that an Investor shall fail to pay its portion of the 2nd Installment
or the 3rd Installment when due in accordance with this
Section 2, as applicable, then, without derogating from any other
remedy which may be available to the other parties to this Agreement,
under this Agreement or under applicable law, all the then remaining
Escrow Securities issued to such Investor at the Closing under this
Agreement shall be cancelled by the Company in accordance with
applicable law. |
| 3. |
TERMS
OF ACQUIRED SHARES AND WARRANT SHARES |
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The
Acquired Shares and Warrant Shares shall, when issued to the Investors and the Escrow
Agent, have such rights, preferences and obligations as are set forth in the
Company’s Articles of Association from time to time. For avoidance of doubt, the
Acquired Shares and any Warrant Shares exercised by the Investors and held by the Escrow
Agent, shall, while held by the Escrow Agent, be deemed to be fully paid up for the
purpose of voting rights. Such shares shall be voted in accordance with the provision of
Section 2 above and the provisions of the Escrow Agreement. |
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4.1. |
The
transactions contemplated hereby, other than the payment by the Investors of
the 2nd Installment and the 3rd Installment, shall
take place at a closing (the “Closing”) to be held at the
offices of Amit, Pollak, Matalon & Xxx Xxxxxxx, Erez & Co., NYP
Tower 19th Floor 00 Xxxxxxx Xxxx Xxxxxx, Xxx Xxxx, Xxxxxx,
within: (i) seventy (70) days from the date of this Agreement or at such
other date, time and place as the Company and the Lead Investor shall have
mutually agreed to. |
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4.2. |
At
the Closing, the following transactions shall occur simultaneously: |
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4.2.1. |
The
following documents shall have been provided to the Lead Investor: |
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(a) |
a
resolution of the Board in the form attached hereto as Schedule
4.2.1(a): (i) authorizing the execution, performance and
delivery of this Agreement and all related documents thereunder, (ii)
approving the Debt Restructuring Agreement, (iii) approving the Management
Agreement, and (vi) approving the issuance of all the Acquired Shares and
the Warrants on the date of Closing, conditional upon payment of the 1st Installment
of the Purchase Price and the reservation of the Warrant Shares; |
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(b) |
minutes
of the general meeting of the Company’s shareholders signed by the
chairman of the meeting to be attached as Schedule
4.2.1(b): (i) approving the terms of this Agreement and the
transactions contemplated hereunder, including but not limited to the
Registration Rights Agreement, and (ii) approving the terms of the
Management Agreement; (iii) approving any necessary amendments to the
Company’s Articles of Association; and (iv) approving the procurement
of the Policy (as defined in Section 11.3 below); |
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(c) |
the
Warrants in the form attached hereto as Schedule 4.2.1(c) duly
executed by the Company and issued to each Investor and to the Escrow
Agent, in the amounts set forth in Schedule A; |
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(d) |
executed
rearrangement and rescheduling agreement of the Company’s debts with
Bank Hapoalim B.M., Bank Leumi Le-Israel B.M. and Israel Discount Bank Ltd.
(hereinafter, the “Banks”), which will be acceptable to
Lead Investor, a copy of which will be attached to this Agreement as Schedule
4.2.1(d) (the “Debt Restructuring Agreement”); |
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(e) |
irrevocable
instructions to the Company’s transfer agent in the form of Schedule 4.2.1(e) to
issue as soon as is reasonably practicable to the Investors and the Escrow
Agent share certificates for the Acquired Shares; together with signed
notices to the Registrar of Companies regarding the shares to be issued in
the names of the Investors and the Escrow Agent pursuant to this
Agreement. |
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(f) |
A
compliance certificate, in the form attached hereto as Schedule
4.2.1(f) duly executed by the Chief Executive Officer of
the Company, dated as of the date of the Closing, confirming and
certifying that the representations and warranties set forth in Section 7
of this Agreement are true and correct as of and through the date of
Closing, that the Company has performed and complied with all its
covenants, agreements, and undertakings as set forth herein and that no
Adverse Event, as defined in Section 10.6 below, has occurred after
signing and prior to Closing. |
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4.2.2. |
The
Company and the Investors shall execute and deliver the Registration Rights
Agreement attached hereto as Schedule 9. |
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4.2.3. |
The
Company and the Lead Investor shall execute and deliver the Management
Agreement attached hereto as Schedule 10.3. |
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4.2.4. |
Each
of the Investors shall pay to the Company its proportional share of the 1st Installment
of the Purchase Price as set next to its name on Schedule A, by way
of instructing a bank transfer to the Company’s account, pursuant to
wiring instructions given in writing by the Company prior to the Closing. |
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4.3 |
In
the event that the Company fails to effect the Closing, the Lead Investor will have, as a
sole remedy in such event, a right of first refusal with respect to any offer to make an
investment in the Company made by a third party within one hundred and eighty (180) days
from the date of termination of this Agreement (the “Third Party Offer”),
to make such investment under the same terms of the Third Party Offer. The provisions of
this Section 4.3 shall not apply if the Company’s failure is due to: (i) the Company’s
inability to enter into the Debt Restructuring Agreement under Section 10.1; or (ii) the
lack of shareholders’ approval to this Agreement. |
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5.1. |
The
Closing of the transactions contemplated hereunder and the obligations of
the Investors are subject to the following conditions precedent, any
one or more of which may be waived in whole or in part by the Lead
Investor: |
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5.1.1. |
receipt
by the Company of the approval of any required regulatory or
governmental authority, if any; |
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5.1.2. |
the
execution of the Debt Restructuring Agreement, a copy of which will be
attached to this Agreement as Schedule 4.2.1(d); |
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5.1.3. |
the
Company’s obtaining all required corporate approvals, including the
approval of the Company’s shareholders for the terms of this
Agreement and the transactions contemplated hereunder and any other
related transaction; |
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5.1.4. |
the
Banks’ approval of this Agreement and the transactions contemplated
hereunder; and |
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5.1.5. |
written
confirmation from the Company that it views the Voting Agreement by and
among the Company and Xxx Xxxxxx, dated January 23, 2005 is in full
force and effect as of the date of the Closing, and that the Company
has not waived and/or amended any term thereunder. |
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5.2. |
The
Closing and the obligations of the Company to issue the Acquired Shares and
the Warrants to the Investors are subject to the following conditions
precedent, any one or more of which may be waived in whole or in part
by the Company: |
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5.2.1. |
the
payment by the Investors of the 1st Installment of the Purchase
Price at the Closing; and |
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5.2.2. |
Approval
of this Agreement and the transactions contemplated thereunder by any
required corporate action by the Investors. |
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6.1. |
All
prices and/or quantities in this Agreement for the Acquired Shares and
Warrants shall be subject to adjustment in any recapitalization event
– stock split, reverse stock split, bonus shares,
reclassification and other changes in the structure of the share
capital of the Company. |
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6.2. |
The
Company agrees and undertakes that until the Closing it will not sell issue,
allot, grant or transfer in any other way any shares, options,
warrants or any other securities which are convertible or
exchangeable into shares of the Company (collectively, the “Securities”)
to any person or entity, except for (a) issuances of Ordinary Shares
to holders of Securities which are outstanding on the date hereof
pursuant to the respective terms and conditions of those Securities,
(b) grants of options to purchase Ordinary Shares to employees,
officers and directors under the Company’s approved plans and
obligations, provided, however, that on the aggregate, the Company
will not grant more that 500,000 options, or (c) as approved in
advance and in writing by the Lead Investor. |
| 7. |
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY |
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The
Company hereby represents and warrants to the Investors, and acknowledges that the
Investors are entering into this Agreement in reliance thereon, as follows: |
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7.1. |
Organization. The
Company is duly organized and existing under the laws of the state of
Israel as a public company limited by shares pursuant to the
Companies Law, and registered by the Registrar of Companies as a public
company, number 00-000000-0. |
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7.2. |
Validly
Existing. The Company validly exists as a company under the laws
of the State of Israel. The Company has the full corporate power and
authority to conduct its business as currently conducted and the
Company had at all relevant times the full corporate power and
authority to conduct its business as previously conducted. |
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7.3. |
Public
Listing. Between October 1995 and May 2005 the Ordinary Shares of
the Company were registered for trading on the Nasdaq. On May 17,
2005, the Company’s Ordinary Shares have been de-listed from
trade on Nasdaq. If and when the Company is able to relist on Nasdaq
or any other exchange or stock market, the Acquired Shares and the
Warrant Shares underlying the Warrants, when issued, will qualify for
listing on Nasdaq or such other exchange or stock market subject to
applicable law. |
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7.4. |
Share
Capital. The registered share capital of the Company is NIS
120,000,000 divided into 120,000,000 Ordinary Shares, of which no
more than 26,205,681 Ordinary Shares are issued and outstanding as of
July 31, 2005. In addition, as of July 31, 2005 the Company had
issued and outstanding options, warrants and other securities
exercisable into no more than 10,492,780 Ordinary Shares. Since July
31, 2005 there have been no change in the Company’s share
capital, except for issuances and grants of Securities in accordance with
Section 6.2 above. |
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7.5. |
Full
Disclosure. To the best of the Company’s knowledge, the annual
report on Form 20-F of the Company for the year ended December 31,
2004 which was filed with the United States Securities Exchange
Commission on July 15, 2005 (the “20-F Form”) and
all subsequent filings filed by the Company (copies of which are
attached hereto as Schedule 7.5) do not
incorporate or contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. |
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7.6. |
Financial
Statements |
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(a) |
True
and complete copies of: (i) the audited consolidated balance sheet of the
Company as at December 31, 2004, and the related audited consolidated
statements of operations, changes in shareholders’ equity and cash
flows of the Company for the year then ended, together with the notes
thereto and the report of Xxxx Xxxxx Xxxxxx & Kasierer (a member of
Ernst & Young Global) relating thereto (the “2004 Financial
Statements”), and (ii) the Company’s preliminary, unaudited
and not reviewed financial results for the period ended June 30, 2005 (the
“2005 Quarterly Results”), are attached hereto as Schedule
7.6(a). |
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(b) |
The
2004 Financial Statements are accurate and complete in all material
respects, and the dollar amount of each line item included therein will be
accurate in all material respects. The 2004 Financial Statements and to
the Company’s best knowledge, the 2005 Quarterly Results, present
fairly in all material respects the financial position of the Company as
of the date thereof and the results of operations, changes in shareholders’ equity
and cash flows of the Company for the periods covered thereby. The 2004
Financial Statements were prepared in accordance with U.S. GAAP, applied
on a consistent basis throughout the periods covered. |
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7.7. |
Reports.
The Company has timely filed, or caused to be filed, with the
appropriate authorities or got extension for, all filings, reports
and returns required to be filed by it, or with respect to it, its
business, operations or assets, including, without limitation, all
tax returns, and as of the time of filing, such filings, reports and
returns were true and complete in all material respects. |
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7.8. |
Due
Authorization. The Acquired Shares, Warrants, Warrant Shares,
when issued, at the Closing or upon exercise of the Warrants, as
applicable, shall all be duly authorized, validly issued, and upon
payment of applicable Price Per Share and/or the Exercise Price
thereof – fully paid, non-assessable and clear and free from any
lien, encumbrance, or any other third party right whatsoever. |
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7.9. |
Approvals. The
execution and delivery of this Agreement and the full performance of
all other obligations and undertakings of the Company contemplated
hereunder including the issuance of the Acquired Shares, the grant
and issuance of the Warrants, the issuance of the Warrant Shares,
shall have been duly approved by the Board. Shareholder approval
under applicable law, will be sought by the Company prior to the
completion of the Closing. Subject to such approval, all acts
required to be taken by the Company to authorize the execution and
delivery of this Agreement, the performance of each of its
obligations hereunder and the consummation of the transaction
contemplated hereunder have been duly taken and are legally valid and
in full force and effect. |
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7.10. |
No
Violation. The execution and delivery of this Agreement and the
performance of and compliance with all other obligations and
undertakings of the Company contemplated hereunder do not and will
not result in a violation of, or conflict with, or constitute a
default, or give rise to any right of termination, cancellation or
acceleration or the loss of any benefit under: (i) the Amended and
Restated Articles of Association of the Company; (ii) any note or
material contract, in any form, to which the Company is a party or by which
it or any of its property is bound or affected having an adverse
material effect on the Company; or (iii) any applicable law in any
relevant jurisdiction, order, injunction, or judgment of any court or
governmental bureau or authority, domestic or foreign, or any
arbitration award applicable to it or any of its properties or
assets. |
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7.11. |
Compliance
with Laws. The Company is not aware of a material violation of
any applicable statute, rule, regulation, order or restriction of any
domestic Israeli or, to the Company’s knowledge, foreign
government or any instrumentality or agency thereof in respect of the
conduct of its business or the ownership of its properties which has
had, or could reasonably be expected to have, either individually or
in the aggregate, a material adverse effect on the Company. The
Company has all material franchises, permits, licenses and any
similar authority necessary for the conduct of its business as now
being conducted by it, the lack of which could, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the Company. |
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7.12. |
No
Integrated Offering. Neither the Company, nor any person acting on its
behalf, has directly or indirectly made any offers or sales of any
security or solicited any offers to buy any security under
circumstances that would cause the offering of the Acquired Shares,
the Warrants and the Warrant Shares pursuant to this Agreement to be
integrated with prior offerings by the Company for purposes of the
Securities Act of 1933, as amended (the “Securities Act”)
such that would subject the offering, issuance and sale of the
Acquired Shares, the Warrants and the Warrant Shares hereunder to the
registration requirements of Section 5 of the Securities Act, nor
will the Company take any action or steps that would cause the
offering of the Securities to be integrated with other offerings |
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7.13. |
Binding
Obligation. This Agreement, when executed and delivered by or on
behalf of the Company, shall, subject to the shareholders’ approval
and other consents to be obtained by the Company on or before the
date of Closing under any applicable law, constitute the valid and
legally binding obligation of the Company, legally enforceable
against the Company in accordance with its terms. There is no
consent, approval, order, license, permit, action by, or
authorization of, or filing with any governmental authority
(including any notifications) or any person that is required to be
obtained or made on the part of the Company prior to the Closing that
has not been, or will not have been, obtained by the Company prior to
the Closing in connection with the valid execution, delivery, and
performance of this Agreement. |
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7.14. |
Brokers’ or
Finders’ Fees. No agent, finder or broker acting on behalf
of or under the authority of the Company, is or will be entitled to any
broker’s or finder’s fee or any other similar commission or
fee in connection with the transactions contemplated hereby.
Notwithstanding anything herein to the contrary, in the event of any
breach of the provisions of this Section, the Company shall fully
indemnify and compensate the Investors for any damage or loss, which
they actually incur due to such breach. |
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7.15. |
Effectiveness. Each
representation and warranty herein is deemed to be made on the date
of this Agreement (unless specifically stated otherwise) and as of
the date of Closing. |
| 8. |
REPRESENTATIONS
REGARDING THE INVESTORS AND THE ACQUIRED SHARES |
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Each
Investor hereby represents and warrants to the Company, and acknowledges that the Company
is entering into this Agreement in reliance thereon, as follows: |
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8.1. |
Organization.
Each Investor has been duly organized and validly exists under the
laws of the jurisdiction of its formation. Each Investor has all
requisite power and authority to execute and deliver this Agreement
and other agreements contemplated hereby or which are ancillary
hereto and to consummate the transactions contemplated hereby. |
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8.2. |
Enforceability.
This Agreement, when executed and delivered by the Investor, will
constitute a valid, binding, and enforceable obligation of the
Investor subject to the fulfillment of the conditions precedent as
set forth in Section 5 hereinabove. |
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8.3. |
Authorization.
The execution and delivery of this Agreement and the performance of
the obligations of such Investor will be duly authorized by all
necessary corporate action prior to Closing, and the fulfillment of
and compliance with the respective terms and provisions hereof and
thereof, and the consummation by such Investor of this Agreement do
not and will not conflict with, or violate any provision of, any law
having applicability to such Investor or any of its respective
assets; or result in any breach of, or constitute a default under any
agreement to which such Investor is a party, except as would not have
a material adverse effect on the Investor that would prevent in any way
such Investor from performing its obligations and undertakings under
this Agreement. |
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8.4. |
Accredited
Investor. Each Investor represents that it is an “accredited
investor”, as that term is defined in Rule 501 of Regulation D
under Securities Act of 1933, and has such business and financial
experience as is required to protect its own interests in connection
with its decision to enter this Agreement and to purchase the
Acquired Shares and the Warrants. |
| |
8.5. |
Absence
of Registration. Each Investor understands, acknowledges and
agrees that the Acquired Shares, the Warrants and the Warrant Shares
have not been registered under the Securities Act and may not be
offered or sold in the United States or to US persons unless such
shares are registered under the Securities Act and applicable state
securities laws, or an exemption from the registration requirements
of the Securities Act and such state securities laws is available.
The Investors understand that the certificate evidencing the Acquired
Shares and the Warrant Shares will be imprinted with a legend in
substantially the following form: |
| |
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE “SECURITIES ACT”). THE SHARES HAVE BEEN ACQUIRED
FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT, OR AN OPINION
OF COUNSEL FOR THE HOLDER OF THE SHARES SATISFACTORY TO NUR MACROPRINTERS LTD., THAT
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.” |
| |
8.6. |
Investment
Purpose. Each Investor represents and agrees that the Acquired
Shares, the Warrants and the Warrant Shares are purchased and issued
for investment purposes, for its own account, and without present
intention to sell or distribute them other than under applicable
securities laws and the terms of this Agreement. |
| |
8.7. |
Receipt
of Information. Without derogating from the Company’s
undertakings under this Agreement, including the accuracy of all
representations and warranties made by it, at the Closing, each
Investor will be deemed to have confirmed that it has reviewed the
previous public filings of the Company and it received such
information and has conducted such independent examinations as it
deemed necessary. |
| |
8.8. |
Brokers’ or
Finders’ Fees. No agent, finder or broker acting on behalf
of or under the authority of such Investor, is or will be entitled to any
broker’s or finder’s fee or any other similar commission or
fee in connection with the transactions contemplated hereby.
Notwithstanding anything herein to the contrary, in the event of any
breach of the provisions of this Section, such Investor shall fully
indemnify and compensate the Company for any damage or loss, which
they actually incur due to such breach. |
9
| |
8.9. |
Effectiveness. Each
representation and warranty herein is deemed to be made on the date
of this Agreement (unless specifically stated otherwise) and as of
the date of Closing. |
| |
The
Investors shall be granted with certain registration rights with respect to the Acquired
Shares and the Warrant Shares as set forth in the Registration Rights Agreement attached
hereto as Schedule 9 (the “Registration
Rights”). |
| 10. |
ACTIONS
PRIOR TO CLOSING |
| |
10.1. |
Debt
Restructuring Agreement. The Board shall have approved and executed
within twenty-one (21) days of the date hereof, the Debt
Restructuring Agreement with the Banks, a copy of which will be
attached to this Agreement as Schedule 4.2.1(d). In the event that
the Company shall have not entered into the Debt Restructuring
Agreement within the aforementioned period, then the Investors may
terminate this Agreement with no further liability and receive the
Escrow Amount. |
| |
10.2. |
General
Meeting of Shareholders. Subject to the DD Completion under
Section 10.5 and the Company entering into the Debt Restructuring
Agreement under Section 10.1, the Company will convene a general
meeting of its shareholders to such a date that will be not later
than one business day before the date set for Closing, to approve,
among other things, the terms of this Agreement. The proxy statement
materials will be provided to the Lead Investor for its review. |
| |
10.3. |
Management
Agreement. The Company and the Lead Investor shall enter on or
before the Closing into a Management Agreement in the form attached
hereto as Schedule 10.3, pursuant to which the Lead Investor shall
provide management services to the Company in consideration for an
annual management fee of US $250,000 and the Management Agreement
shall be subject to the approval of the Company’s general
meeting of the shareholders. |
| |
10.4. |
Board
of Directors. The Company undertakes that following the Closing the
Investors shall be able to elect a majority of the Board, regardless
of the number of members composing the Board. The Company shall
effect such undertaking at a meeting of shareholders, held on or
prior to the date of Closing, at which meeting shall be appointed
those nominees proposed by the Lead Investor to serve, as members of
the Board effective immediately after the Closing. |
| |
10.5. |
Due
Diligence. The Lead Investor may decide not to proceed with the
investment hereunder if its findings after completion of its due
diligence, including financial and legal due diligence are not to its
satisfaction. The Investors shall have a 21-day period commencing
immediately following the execution of this Agreement to complete
their due diligence (the completion of such due diligence shall be
referred to as the “DD Completion”). If the
Investors are not satisfied with the due diligence results during
said period, then the Investors will not be obligated to consummate
the transaction contemplated hereunder. |
10
| |
10.6. |
Adverse
Events. If at any time prior to the Closing, the Lead Investor
becomes aware of a particular event or circumstances not in the
Company’s ordinary course of business that are unknown to the
Company or are known to the Company and not reported to the
Investors, which have, in the aggregate, an adverse effect on the
Company of US$3,000,000 (the “Adverse Event”), then,
the Lead Investor may decide not to proceed with the investment
hereunder. It is agrees that “Adverse Event” shall also
include circumstances that prevent the Company from holding the
general meeting of shareholders for approval of this Agreement on or
before the date set for Closing. |
| |
10.7. |
Ordinary
Course. As of the date hereof and until the date of closing, the
Company: (i) shall conduct its business solely in the ordinary course
of business as is conducted on the date hereof; and (ii) shall not
declare or pay any dividends or make any other distributions or
payments with respect to its share capital. |
| 11. |
ACTIONS
FOLLOWING THE CLOSING |
| |
11.1. |
On
the date which is not later than ninety (90) days following the Closing, each
of the Investors shall pay to the Company its proportional share of
the 2nd Installment of the Purchase Price as set next to
its name on Schedule A, by way of instructing a bank transfer to the
Company’s account, pursuant to wiring instructions given in
writing by the Company prior thereto, and the Escrow Agent shall
release to the Investors the appropriate portion of the Escrow
Securities. |
| |
11.2. |
On
the first anniversary of the Closing, each of the Investors shall pay to the
Company its proportional share of the 3rd Installment of
the Purchase Price as set next to its name on Schedule A,
by way of instructing a bank transfer to the Company’s account,
pursuant to wiring instructions given in writing by the Company prior
thereto, and the Escrow Agent shall release to the Investors the
appropriate portion of the Escrow Securities. |
| |
11.3. |
Subject
to any other provisions in law, the Investors will act and exercise
their position as controlling shareholders in the Company in any
required way so that the Company will continue to hold its directors
and officers liability policy (the “Policy”) in
accordance with and in the amounts that are in effect as of the date
hereof, this being for at least four (4) years from the date of
Closing so that the Policy will apply to obligations and liabilities
of the Company’s directors and officers who serve in office in
the Company and/or in companies controlled by the Company, before the
date of Closing for any wrongful act, omission, or event that
preceded such date, all this being subject to the conditions of the
current policy and its exclusions. |
| |
12.1. |
The
terms and conditions described in this Agreement, including its existence,
shall be confidential information and neither of the parties shall
disclose or reveal it to any other person, firm, corporation or other
third party, except (i) as required under any applicable law, or (ii)
otherwise explicitly agreed between the Company and the Lead
Investor. If either party determines that one of the foregoing
exceptions has occurred, it shall, to the extent possible, consult
with the other party prior to any such disclosure. |
| |
12.2. |
In
the event that the Closing does not occur, the parties’ respective
obligations of confidentiality under this Agreement shall nonetheless
survive. |
| |
12.3. |
The
provisions of this Section 12 are subject to and do not deem to amend or
replace that certain letter agreement regarding confidentiality,
which was entered between the parties on June 22, 2005, a copy of
which is attached hereto as Schedule 12.3. |
11
| |
During
a period ending sixty (60) days following the signing of this Agreement the Company or any
person acting on its behalf (a) shall not solicit, negotiate and/or accept any financing
or investment offers by other parties without the written consent of the Lead Investor,
and (b) shall not declare or make any distribution to shareholders or enter into any new
transaction with any “Interested Party”, as defined in the Israeli Securities
Act, 1968, as amended. |
| |
14.1. |
Each
party agrees that to the fullest extent permitted by applicable law, it
will indemnify and hold the other party harmless against and in respect of
any and all loss, liability, deficiency or damage, or actions in respect
thereof (including reasonable legal fees and expenses), occasioned by: (i)
any breach of this Agreement; (ii) any falsity of any representations or
warranties of such party or any certificate or other instrument furnished
by that party hereunder; or (iii) any liability that is derived from an
act or omission that has been committed prior to the date hereof, but that
becomes known hereafter. |
| |
14.2. |
Notwithstanding
the foregoing, no claims shall be asserted unless the cumulative amounts
claimed for is in excess of US$100,000 and under no circumstances shall
any party be entitled to indemnification hereunder in an amount greater
than the Purchase Price. |
| |
14.3. |
The
remedies specified in this Section 14 shall be the sole and exclusive remedy
to which the parties are entitled with regard to any losses or damages
caused to them with regard to the breaches described in Section 14.1
above. |
| |
15.1. |
Governing
Law and Jurisdiction. This Agreement and the transactions contemplated
hereunder shall be governed by and construed in accordance with the laws
of the State of Israel, without giving effect to rules respecting conflict
of law that would cause the laws of any jurisdiction other than the State
of Israel to be applied. The competent courts of Tel Aviv-Jaffa shall have
sole and exclusive jurisdiction to hear and resolve any disputes among the
parties related to this Agreement. |
| |
15.2. |
Expenses.
The Company and the Investors will each bear their own legal and other
expenses with respect to the transaction contemplated herein; except that,
the Company will pay legal and other fees and actual expenses incurred by
the Lead Investor in the amount of up to seventy-five thousand United
States dollars (US$75,000) plus VAT which amount shall be reduced to fifty
thousand United States dollars (US$50,000) plus VAT in the event that the
transaction is not consummated, in each case, provided that the Lead
Investor deposited the Escrow Amount under the terms of Section 2 above. |
| |
15.3. |
Preparation
of Financial Statements. At the request of the Lead Investor the
Company will prepare and provide the Investors with financial statements of
the Company prepared according to Israeli GAAP. Said financial statements
will be submitted to the Lead Investor together with the financial
statements of the Company provided that the request by the Lead Investor
is given 30 days in advance. |
| |
15.4. |
Public
Release. Without limiting the generality of the parties’ Non-Disclosure
obligations and subject to any duty imposed by any applicable law, the
parties agree to coordinate among themselves any release or report to the
public and/or to any authority of information relating to the transaction
hereof. |
12
| |
15.5.1. |
All
notices and other communications required or permitted hereunder to be given
to a party to this Agreement shall be in writing and shall be telecopied
or mailed by registered or certified mail, postage prepaid, or otherwise
delivered by hand or by messenger, addressed to such party’s address
as set forth below: |
| |
If to the Investors: |
to
such address and by facsimile as set forth in
Schedule A. |
| |
If to the Company: |
NUR Macroprinters Ltd.
Attn: Xxxxx Xxxx, CEO
P.O. Box 1281
00 Xxxx Xxxxxx Xxxxxx Xxxxxx
Xxx 00000
Xxxxxx
Facsimile: x000-0-0000000 |
| |
or
such other address with respect to a party as such party shall notify each other party in
writing as above provided. |
| |
15.5.2. |
Any
notice sent in accordance with this Section 15.5 shall be effective (i) if
mailed, five (5) business days after mailing, (ii) if sent by
messenger, upon delivery, and (iii) if send via telecopier, upon
transmission and telephonic confirmation of receipt (provided that if
transmitted on a day that is not a business day, on the next business
day). |
| |
15.6. |
Entire
Agreement; Amendment and Waiver. This Agreement and the Schedules
hereto constitute the full and entire understanding and agreement
between the parties with regard to the subject matters hereof and
thereof. All prior representations, understandings and agreements
among the parties are void and of no further effect. Any term of this
Agreement may be amended, waived, or discharged, either prospectively
or retroactively, and either generally or in a particular instance,
by written consent of Company and Lead Investor, other than the
Registration Rights Agreement, which may only be amended as set forth
therein. |
| |
15.7. |
Survival.
All representations and warranties set forth in this Agreement as
well as the indemnification provisions shall survive for a period of four (4)
years following the Closing. |
| |
15.8. |
Rights;
Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The parties hereto shall be obliged to
draw up an arrangement in accordance with the meaning and the object
of the invalid provision. |
| |
15.9. |
Titles
and Subtitles. The titles of the sections and subsections of this
Agreement are for convenience of reference only and are not to be
considered in construing this Agreement. |
| |
15.10. |
Stamp
Duty, Other Duties and Expenses. All stamp duty and other duties
and expenses incurred in connection with the execution and
performance of this Agreement shall be borne by the Company, unless
specifically stated otherwise. |
13
| |
15.11. |
Assignment.
The rights and obligations pursuant to this Agreement, or any part
thereof, may be assigned or otherwise conveyed by the Investors or any
subsequent transferee, both prior to and/or after the Closings,
provided that such transferee agrees in writing to be bound by this
Agreement. The Company may not assign or otherwise convey any of its
rights and/or obligations pursuant to this Agreement. |
| |
15.12. |
Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be a duplicate original, but all of which taken
together shall constitute one and the same agreement. |
[SIGNATURE PAGE TO
FOLLOW]
14
[SIGNATURE PAGE]
IN WITNESS WHEREOF, the
parties have signed this Agreement as of the date first written hereinabove.
|
|
NUR Macroprinters Ltd.
By:
________________________
Name: Xxxx Xxxxxxxx
________________________
Title: Director
________________________
By:
________________________
Name: Xxxxx Xxxxxxxx
________________________
Title: Chief Financial Officer
________________________
|
Fortissimo Capital Fund GP LP.
By: Fortissimo Capital (GP)
Management Fund Ltd, its
general partner
By:
________________________
Name: Xxxxx Xxxxx
________________________
Title: Director
________________________
|
15
This Amendment (the
“Amendment”), is entered into as of September 11, 2005, by and among NUR
Macroprinters Ltd., a company registered under the laws of the State of Israel (the
“Company”) and Fortissimo Capital Fund GP, LP on behalf of the several
limited partnerships for which it serves as the general partner, as well as on behalf of
any third party investors (the “Lead Investor”) together with any
subsidiary or any other entity controlled, controlling or under common control therewith
listed in Schedule A to the SPA, defined hereunder (each, the
“Investor” and collectively, the “Investors”).
| WHEREAS, |
the Company, the Lead Investor and the Investors, entered into a Share Purchase Agreement
on August 21, 2005 (the “SPA”); |
| WHEREAS, |
the parties desire to amend certain terms of the SPA as provided herein. |
NOW, THEREFORE, the parties
agree as follows:
| 1. |
INTERPRETATION;
DEFINITIONS |
| |
1.1. |
In
this Amendment, all capitalized terms shall have the meanings ascribed thereto
in the SPA. |
| 2. |
INVESTMENT;
ACQUIRED SHARES; GRANT OF WARRANTS |
| |
Section
2.7(b) of the SPA is hereby amended and replaced with the following new Section 2.7(b): |
| |
“2.7(b) |
If the Closing does not take place due to: (i) the election of the Lead
Investor in accordance with the provisions of Sections 10.5 (Due Diligence) or
10.6 (Adverse Event), (ii) the Company’s failure to enter into the Debt
Restructuring Agreement within the twenty-two (22) days set forth in Section
10.1 below, or (iii) the Company’s failure to effect the Closing, then the
Escrow Agent shall, upon receipt of written instructions from the Lead Investor
that the Closing did not take place for any one of such reason(s), transfer the
Escrow Amount to the Investors.” |
| 3. |
ACTIONS
PRIOR TO CLOSING |
| |
3.1 |
Section
10.1 of the SPA is hereby amended and replaced with the following new Section 10.1: |
| |
“10.1 |
Debt
Restructuring Agreement. The Board shall have approved and executed within twenty two
(22) days of the date hereof, the Debt Restructuring Agreement with the Banks, a copy of
which will be attached to this Agreement as Schedule 4.2.1(d). In
the event that the Company shall have not entered into the Debt Restructuring Agreement
within the aforementioned period, then the Investors may terminate this Agreement with no
further liability and receive the Escrow Amount. |
| |
3.2 |
Section
10.5 of the SPA is hereby amended and replaced with the following new Section 10.5: |
1
| |
“10.5 |
Due Diligence. The Lead Investor may decide not to proceed with the
investment hereunder if its findings after completion of its due diligence, including
financial and legal due diligence are not to its satisfaction. The Investors shall have a
22-day period commencing immediately following the execution of this Agreement to
complete their due diligence (the completion of such due diligence shall be referred to
as the “DD Completion”). If the Investors are not satisfied with the due
diligence results during said period, then the Investors will not be obligated to
consummate the transaction contemplated hereunder.” |
| |
3.3 |
Section
10.6 of the SPA is hereby amended and replaced with the following new Section 10.6: |
| |
“10.6 |
(a) Adverse Events. If at any time prior to the Closing, the Lead Investor becomes
aware of a particular event or circumstances not in the Company’s ordinary course of
business that are unknown to the Company or are known to the Company and not reported to
the Investors, which have, in the aggregate, an adverse effect on the Company of
US$3,000,000 (the “Adverse Event”), then, the Lead Investor
may decide not to proceed with the investment hereunder. It is agrees that
“Adverse Event” shall include (i) any circumstances that prevent the Company
from holding the general meeting of shareholders for approval of this Agreement on or
before the date set for Closing; and (ii) any imposition of value added tax, irrespective
of the amount thereof, in connection with the transactions contemplated hereby and/or the
Debt Restructuring Agreement. |
| |
(b)
For the avoidance of doubt, it is hereby agreed that if an Adverse Event
described in 10.6(a)(ii) above occurs, then the Company shall be prohibited
from objecting to an Adverse Event Release Notice (as defined in the Escrow
Agreement) having been issued by the Lead Investor pursuant to Section 4.3(c)
of the Escrow Agreement, to the extent that such Adverse Event Release Notice
has been issued thereby.” |
| |
4.1. |
Amendment.
This Amendment has been entered into pursuant to Section 15.6 of the
SPA and is in compliance therewith. |
| |
4.2. |
Continuation
of SPA. Other than as specifically amended herein, all other
terms and conditions of the SPA remain in full force and effect. |
| |
4.3. |
Counterparts.
This Agreement may be executed in multiple counterparts, including,
without limitation, by facsimile signature, which taken together
shall constitute a single document. |
[Signature Page
Immediately Follows]
2
[Signature Page]
IN WITNESS WHEREOF, the
parties have signed this Agreement as of the date first written hereinabove.
|
|
NUR Macroprinters Ltd.
By:
________________________
Name: Xxxxx Xxxx
________________________
Title: President and CEO
________________________
By:
________________________
Name: Xxxxx Xxxxxxxx
________________________
Title: Chief Financial Officer
________________________
|
Fortissimo Capital Fund GP LP.
By: Fortissimo Capital (GP)
Management Fund Ltd, its
general partner
By:
________________________
Name: Xxxxx Xxxxx
________________________
Title: Director
________________________
|
3
