SECURITIES PURCHASE AGREEMENT
SECURITIES
PURCHASE AGREEMENT (this “Agreement”),
dated
as of May 1, 2008, by and among the purchasers identified on Schedule
I
hereto
(collectively, the “Purchasers”)
and
Fortissimo Capital Fund (Israel) LP, (“Fortissimo”).
W
I T N E
S S E T H:
WHEREAS,
Affiliates of Fortissimo and Fortissimo and certain Affiliates of the Purchasers
entered into a securities purchase agreement, dated March 27, 2008 (the
“SPA”),
with
respect to the purchase of certain of Fortissimo’s holdings in Nur Macroprinters
Ltd., a company organized under the laws of the State of Israel (“Nur”);
and
WHEREAS,
the transaction pursuant to the SPA triggers a co-sale right (the “Co-Sale
Right”),
pursuant to a term sheet entered into among certain banks and Fortissimo, dated
September 12, 2005 (the “Term
Sheet”);
and
WHEREAS,
in connection with the consummation of the transactions contemplated by the
SPA,
the Purchasers undertook to Fortissimo and certain of its Affiliates in a letter
attached hereto as Exhibit
A
(the
“Co-Sale
Letter Agreement”),
to
purchase from Fortissimo and such Affiliates, at a price of $0.435 per warrant,
warrants to purchase up to 8,000,000 ordinary shares, par value NIS 1.00 per
share, of Nur (“Shares”)
that
it may purchase from the Banks pursuant to the Co-Sale Right; and
WHEREAS,
concurrently with the execution of this Agreement, Fortissimo has signed an
agreement to purchase (the “Bank
SPA”)
(i)
from Bank Hapoalim Ltd. (“BH”)
warrants to purchase 4,263,396 Shares at an exercise price of $0.35 per share
(the “BH Warrants”),
and
(ii) from Israel Discount Bank Ltd. (“IDB”
and,
together with BH, the “Banks”)
warrants to purchase 820,275 Shares at an exercise price of $0.35 per share
(the
“IDB
Warrants”,
and
collectively with the BH Warrants are referred to herein as the “Warrants”);
and
WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Purchasers
shall purchase from Fortissimo, and Fortissimo shall sell to the Purchasers,
the
Warrants.
NOW,
THEREFORE, in consideration of the mutual representations, warranties and
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Fortissimo and the Purchasers agree as follows:
SECTION
1. DEFINITIONS
All
capitalized terms used herein and not otherwise defined, shall have the meaning
attributed to such terms in the SPA.
SECTION
2. PURCHASE
AND SALE OF SECURITIES
Purchase
and Sale of the Securities.
(a) Subject
to the terms and conditions set forth in this Agreement and in reliance upon
each party’s representations set forth below, on the Closing Date, Fortissimo
shall sell to the Purchasers, and the Purchasers shall purchase from Fortissimo,
the Warrants pursuant to the allocations set forth on Schedule
I
hereto.
Each of the Purchasers shall transfer to Fortissimo, or upon Fortissimo’s
written instructions, shall transfer to BH and IDB on behalf of Fortissimo,
the
amounts set forth on Schedule
I
attached
hereto in exchange for the number of Warrants set forth next to each Purchaser’s
name. For the avoidance of doubt, any deficiency in the amount payable by the
Purchasers pursuant to the Co-Sale Letter Agreement and the consideration paid
for the Warrants by Fortissimo to the Banks, shall be borne by Fortissimo.
The
obligations of the respective Purchasers under this Agreement shall be several
and not joint.
(b) Any
amounts payable to the Banks, including but not limited to, payments upon
release of the HP Escrow shall be the sole responsibility and obligation of
Fortissimo.
(c)
Fortissimo
shall have received from the Banks representations and warranties with respect
to the securities being transferred, similar to those that it provided to the
Purchasers in the SPA.
(d)
This
Agreement shall not confer any rights or remedies with respect to the sale
of
the Warrants or otherwise, upon the Banks or any other person other than the
parties hereto.
SECTION
3. CLOSING
(a)
The
closing of the sale and purchase of the Warrants (the “Closing”)
shall
take place on May 1, 2008, subject to the consummation of the sale of the
Warrants to Fortissimo pursuant to the Bank SPA(the “Closing
Date”),
at
the offices of Goldfarb, Levy, Eran, Meiri, Tzafrir & Co., Law Offices.
(b) Fortissimo
Deliverables.
At the
Closing, Fortissimo shall deliver or shall cause to be delivered to the
Purchasers (A) original certificates evidencing the Warrants,
(B) original instruments of sale, transfer, conveyance and assignment from
Fortissimo to the Purchasers as the Purchasers may reasonably request,
(C) original instruments of sale, transfer, conveyance and assignment from
the Banks to Fortissimo as the Purchasers may reasonably request and (D) a
copy
of the fully executed Bank SPA.
(c) Purchaser
Deliverables.
At the
Closing, the Purchasers shall transfer or cause to be transferred an aggregate
of $2,211,397,
to
Fortissimo or directly to the Banks on behalf of Fortissimo, as set forth on
Schedule
I.
SECTION
4. REPRESENTATIONS
AND WARRANTIES OF FORTISSIMO
Fortissimo
hereby represents and warrants to the Purchasers as of the date hereof and
the
Closing Date, as follows:
4.1 Organization;
Authorization; Enforcement.
Fortissimo has the requisite power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out
its
obligations hereunder. The execution and delivery by Fortissimo of this
Agreement and the consummation by it of the transactions contemplated hereby
has
been duly authorized by all necessary action on the part of Fortissimo and
no
further action is required by Fortissimo. This Agreement has been duly executed
by Fortissimo and constitutes the valid and legally binding obligation of
Fortissimo, enforceable against it in accordance with its terms, subject to
laws
of general application relating to bankruptcy, insolvency and the relief of
debtors.
-2-
4.2 Ownership
of Securities.
Fortissimo (i) is the sole record owner and legal owner of the Warrants set
forth opposite Fortissimo’s name on Schedule
I,
(ii)
has good, valid and marketable title to such Warrants free and clear of all
Encumbrances and (iii) is conveying such Warrants to the Purchasers free and
clear of all Encumbrances that it may have created or suffered to exist.
Fortissimo has neither previously sold, assigned, conveyed, transferred or
otherwise disposed of, in whole or in part, any of the Warrants or any rights
thereunder, nor is Fortissimo party to any agreement other than this Agreement
to sell, assign, convey, transfer or otherwise dispose of, in whole or in part,
any of the Warrants or any rights thereunder. Fortissimo has no reason to
believe that the Warrants have not been duly and validly issued. When delivered
to the Purchasers pursuant to the terms hereof, the Warrants shall be fully
paid
and nonassessable, free and clear of all Encumbrances. Fortissimo has delivered
to the Purchasers true and complete copies of the Warrants.
4.3 No
Conflicts.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with or violate any (A)
statute, law regulation, rule, injunction, judgment, order, decree, ruling,
charge or other restriction of any Governmental Authority to which Fortissimo
is
subject or (B) any provision of Fortissimo’s organizational documents (each as
amended through the date hereof) or (ii) require any notice or consent under,
any agreement to which Fortissimo is a party or by which Fortissimo is bound
or
to which the Warrants are or may be bound or affected or result in the
imposition of any Encumbrance upon the Warrants. Specifically, no Person has
a
right to sell any securities of the Company in connection with the sale of
any
of the Warrants, and if any Person has, or claims to have, such a right, it
shall be the sole obligation of Fortissimo.
4.4 Governmental
Consents.
Fortissimo is not required to give any notice to, make any filings with, or
obtain any authorization of any Governmental Authority in order for the parties
to execute, deliver or consummate the transactions contemplated by this
Agreement.
4.5 Exempt
Offering.
Assuming the accuracy of the representations and warranties of the Purchasers
set forth in Section 5.2, the offer and sale of the Warrants as contemplated
hereby are, to the best knowledge of Fortissimo, exempt from the registration
requirements of the Securities Act. Neither Fortissimo nor any Person acting
on
its behalf has taken or is, to the knowledge of Fortissimo, contemplating taking
any action which could subject the offering or sale of such Warrants to the
registration requirements of the Securities Act. Neither Fortissimo, nor any
of
its Affiliates, nor any Person acting on their behalf, has engaged, nor will
they engage, in any “direct selling efforts” (within the meaning ascribed to
such term in Regulation S promulgated under the Securities Act (“Regulation
S”))
with
respect to the sale of the Warrants. The sale of the Warrants by Fortissimo
is
not part of a plan or scheme to evade the registration requirements of the
Securities Act.
4.6 Fees.
No fees
or commissions will be payable by the Purchasers to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or
other
Person with respect to the transactions contemplated by this Agreement based
on
any arrangement made by or on behalf of Fortissimo.
4.7 Adequacy
of Consideration.
Fortissimo is aware that the Purchasers in the future may generate greater
value
with respect to its Warrants than Fortissimo will receive for such Warrants
pursuant to this Agreement, especially since the Purchasers will become the
members of the controlling group of the Company. Fortissimo is also aware that
the Purchasers may purchase securities of the Company from other shareholders
of
the Company, including large shareholders, either alone or together with other
purchasers, for consideration that may exceed the consideration payable pursuant
to this Agreement and/or pursuant to other terms and conditions that may be
more
favorable to the sellers than the terms and conditions of this Agreement.
Fortissimo waives any right to receive any consideration for selling its
Warrants to the Purchasers (other than the consideration specifically payable
pursuant to this Agreement) and waives any possible claim against the Purchasers
with respect to the fairness of the consideration payable
hereunder.
-3-
4.8 No
Adverse Information.
The
sale of the Warrants pursuant hereto is not prompted by any adverse information
concerning the Company that has not been publicly disclosed by the
Company.
SECTION
5. REPRESENTATIONS
AND WARRANTIES OF THE PURCHASERS
Each
Purchaser, severally but not jointly, hereby represents and warrants to
Fortissimo, as of the date hereof and the Closing Date, as follows:
5.1 Authorization;
Enforcement.
This
Agreement has been duly executed by such Purchaser and constitutes the valid
and
legally binding obligation of such Purchaser, enforceable against it in
accordance with its terms, subject to laws of general application relating
to
bankruptcy, insolvency and the relief of debtors.
5.2 Exempt
Offering.
(a) Such
Purchaser understands and agrees that the Warrants have not been registered
under the Securities Act and may not be offered or sold except pursuant to
an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. Such Purchaser warrants that neither it
nor
any of its Affiliates nor any Person acting on their behalf has offered or
sold,
or will offer or sell, any Securities except in an “offshore transaction” in
accordance with Regulation S or otherwise pursuant to an exemption from the
Securities Act.
(b) No
Persons acting on behalf of such Purchaser or any of its Affiliates has engaged
or will engage in any “directed selling efforts” (as such term is defined in
Regulation S) with respect to the Warrants.
(c) Such
Purchaser is an experienced investor and is purchasing the Warrants for the
purpose of investment for its own account and not with a view to distribution
or
resale, directly or indirectly, to United States persons, in the United States
or otherwise in violation of the United States securities laws, without
prejudice, however, to such Purchaser’s right at all times to sell or otherwise
dispose of all or any part of the Warrants in compliance with applicable
securities laws. Such Purchaser is not located in the United States and is
not a
“U.S. person” (as defined in Regulation S).
(d) The
contemplated purchase of the Warrants is not part of a plan or scheme to evade
the registration provisions of the Securities Act.
5.3 Fees.
No fees
or commissions will be payable by such Purchaser to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or
other
Person with respect to the transactions contemplated by this Agreement based
on
any arrangement made by or on behalf of such Purchaser.
5.4 No
Conflicts.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with or violate any statute,
law regulation, rule, injunction, judgment, order, decree, ruling, charge or
other restriction of any Governmental Authority to which such Purchaser is
subject or (ii) require any notice or consent under, any agreement to which
such
Purchaser is a party or by which such Purchaser is bound.
-4-
SECTION
6. WITHHOLDING
TAX
Each
of
the Purchasers shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement the amounts required to be deducted
and withheld from any payment pursuant to this Agreement under any applicable
law or regulation, provided, however, that if Fortissimo obtains a tax ruling
and/or exemption from any applicable Governmental Authority in a form reasonably
satisfactory to each Purchaser, deduction and withholding of any amounts under
the tax laws of such Governmental Authority’s jurisdiction shall be made in
accordance with the provisions of such ruling and/or exemption. To the extent
that amounts are so withheld by the Purchasers, such withheld amounts (i) shall
be remitted by the Purchasers to the applicable Governmental Authority, and
(ii)
shall be treated for all purposes of this Agreement as having been paid to
Fortissimo in respect of which such deduction and withholding was made by the
Purchasers. In the event that Fortissimo directs the Purchasers to transfer
the
consideration payable hereunder to the Banks directly, then, in addition to
an
exemption relating to Fortissimo, Fortissimo shall provide to the Purchasers
an
exemption from any applicable Governmental Authority in a form reasonably
satisfactory to the Purchasers from each of the Banks, so that the Purchasers
will not be required to deduct or withhold any amounts under the tax laws of
such Governmental Authority’s jurisdiction.
SECTION
7. INDEMNIFICATION
All
provisions under the Section entitled “Indemnification” in the SPA shall apply
to this Agreement, mutatis mutandis.
SECTION
8. DISPUTE
RESOLUTION
Any
dispute arising out of or relating to this agreement shall be resolved by the
parties hereto, in accordance with the procedures specified in Section 9 to
the
SPA, mutatis mutandis.
SECTION
9. MISCELLANEOUS
All
provisions under the Section entitled “Miscellaneous” in the SPA shall apply to
this agreement, mutatis mutandis.
[SIGNATURE
PAGES IMMEDIATELY FOLLOW]
-5-
IN
WITNESS WHEREOF the parties have signed this Securities Purchase Agreement
as of
the date first hereinabove set forth.
FORTISSIMO
CAPITAL FUND (ISRAEL), LP
By
FORTISSIMO CAPITAL FUND GP, L.P.
Its
General Partner
By
FORTISSIMO CAPITAL (GP) MANAGEMENT LTD.
Its
General Partner
By: /s/
Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Director
BONSTAR
INVESTMENTS LTD.
By:
/s/ Xxxxxx
Mor
Name:
Xxxxxx Mor
Title:
Director
/s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
-6-
Schedule
I
Schedule
I - Purchasers, Warrants and Amounts
|
No.
of Warrants
|
If
Transferred to the Banks
|
||||||||||||||||||
|
Purchasers
|
BH
Warrants
|
IDB
Warrants
|
Total
|
BH
|
IDB
|
If
Transferred to Fortissimo
|
|||||||||||||
|
Xxxxxx
Xxxxxxx
|
3,553,143
|
683,623
|
4,236,766
|
$
|
1,545,617
|
$
|
297,376
|
$
|
1,842,993
|
||||||||||
|
Bonstar
Investments Ltd.
|
710,253
|
136,652
|
846,906
|
$
|
308,960
|
$
|
59,444
|
$
|
368,404
|
||||||||||
|
|
|||||||||||||||||||
|
Total
|
4,263,396
|
820,275
|
5,083,671
|
$
|
1,854,577
|
$
|
356,820
|
$
|
2,211,397
|
||||||||||
