EXHIBIT 4.11
SCHEDULE 7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") made as of the 12
day of February, 2002 by and among:
NUR Macroprinters Ltd., a company organized under the laws of the State of
Israel, registered under number 00-000000-0, with offices at 00 Xxxx Xxxxx
Xxxxxx Xxxxxx, Xxx, Xxxxxx (the "Company"); and
Bank Hapoalim B.M., a company organized under the laws of the State of Israel,
registered under number________, with offices at _________ (the "Holder").
RECITALS:
WHEREAS the Company has issued to the Holder a certain Warrant dated
February 12, 2002, (the "Warrant") to purchase a 70,000 Ordinary Shares of the
Company, par value NIS 1.00 per share (the "Warrant Shares"); and
WHEREAS the Company hereby undertakes to register the Warrant Shares
underlying the Warrant in accordance with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows:
1. Definitions.
Unless otherwise defined herein, all capitalized terms shall have
the meaning ascribed thereto in the Warrant Agreement (as defined below). As
used herein, the following terms have the following meaning:
"Commission" refers to the Securities and Exchange Commission.
"Effective Date" shall have the meaning as set forth in the Warrant
Agreement.
"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 Company's Ordinary Shares issuable
upon the exercise of the Warrant .
1
"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. Piggyback Registration. If the Company at any time following the
Effective Date, proposes to register any of its securities (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 employee benefit plan or a
registration statement on form F-4 or any other successor form), for its own
account or for the account of any other person, 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 Shares 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.
Notwithstanding the provisions of this Section 2, the Company shall have the
right at any time after it shall have given notice to the Holder, to elect not
to file any such proposed registration statement.
3. Termination of Registration Rights
3.1 The Holder shall not be entitled to exercise any right provided
for in Section 2, after four years following the date of the closing of the
Warrant Agreement.
3.2 In addition, the right of the Holder to request registration
pursuant to Sections 2 shall terminate upon such date that all Registrable
Shares held or entitled to be held upon conversion by the Holder may be sold
without volume limitations under Rule 144 (or any successor rule).
4. Designation of Underwriter.
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.
2
5. Expenses. All expenses incurred in connection with any registration
under Section 2 shall be borne by the Company; provided, however, that the
Holder shall pay its pro rata portion of the discounts payable to any
underwriter.
6. Indemnities. In the event of any registered offering of Ordinary
Shares pursuant to this Agreement:
6.1 The Company will indemnify and hold harmless, to the fullest
extent permitted by law, the Holder, the officers and directors of 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 officers and directors of the Holder, 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 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 officers and
directors of 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 case 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 6.1 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 officers
and directors 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.
6.2 The Holder participating in a registration hereunder will
indemnify and hold harmless the Company, the officers and directors of 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, the
officers and directors of the Company or any such controlling person and/or any
such underwriter may
3
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 stated
therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, and the Holder will
reimburse the Company, the officers and directors of 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 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 relieve any underwriter of any of its due diligence obligations;
provided, further, that the indemnity agreement contained in this Sub-Section
6.2 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.
6.3 Promptly after receipt by an indemnified party pursuant to the
provisions of Section 6.1 or 6.2 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 6.1 or 6.2,
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
4
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 6.1 or 6.2 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 or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation.
6.4 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 the Holder be more than the gross proceeds that it
receives from the offering .
7. 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 consents 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 from 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
5
Act of 1934, as amended, (the "Exchange Act"), including, but not limited to,
the prospectus delivery requirements, 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
registration statement or prospectus, from effecting sales of the Registrable
Shares until the Company has completed the necessary correction or updating.
8. Lock-Up. In any registration of the Company's shares, the Holder
acknowledges 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.
9. Customary Arrangements. The Holder may not participate in any
underwritten offering pursuant to a registration filed hereunder unless the
Holder (a) agrees to sell it'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.
10. Public Information. The Company shall undertake to make publicly
available and available to the Holder adequate current public information within
the meaning of, and as required pursuant to, Rule 144.
11. 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.
12. Assignment of Registration Rights. The rights to cause the Company
to register Registrable Shares pursuant to this Agreement may only be assigned
by the Holder (the "Assignment") under the following conditions:
(i) The assignment shall be concurrent with the sale or transfer of the
Warrant or the Registrable Shares and only with respect to the
transferred Registrable Shares;
(ii) The Holder may only assign the Registration Rights pursuant to this
Agreement on one occasion, to no more than one transferee; and
(iii) The assignee of the Registration Rights may not further assign the
Registration Rights. In addition, the Company shall have no
obligation to amend an effective registration to reflect the name of
a transferee in such registration statement.
6
13. Changes in Registrable Shares. If, and as often as, there are any
changes in the Registrable Shares by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Shares as so changed. Without limiting the generality
of the foregoing, the Company will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement, as
a condition to any such merger or consolidation.
14. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements (including, without
limitation, the term sheet entered into between the Company and the Holder, and
any and all negotiations and oral understandings with respect thereto) and any
and all registration rights that the Company had previously granted to any party
hereto in any capacity whatsoever. Nothing in this Agreement, express or
implied, is intended to confer upon any Person, other than the parties hereto
and their respective successors and assigns, any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided herein.
15. Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New York, as such laws are applied to agreements
between State of New York residents entered into and to be performed entirely
within State of New York, whether or not all parties hereto are residents of
State of New York.
16. Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, permitted assigns as provided
in Section 12, heirs, executors and administrators of the parties hereto.
17. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon receipt by the party to be notified (including by
telecopier, receipt confirmed) or seven (7) days after deposit with the United
States Post Office or three (3) days after deposit with the Israel Post
Authority, by registered or certified mail, postage prepaid and addressed to the
party to be notified (a) if to a party other than the Company, at such party's
address set forth in this Agreement or at such other address as such party shall
have furnished the Company in writing, or, until any such party so furnishes an
address to the Company, then to and at the address of the last holder of the
shares covered by this Agreement who has so furnished an address to the Company,
or (b) if to the Company, at its address set forth at in this Agreement, or at
such other address as the Company shall have furnished to the parties in
writing.
18. Severability. Any invalidity, illegality or limitation on the
enforceability of this Agreement or any part thereof, by any party whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to other parties. If any provision of this Agreement
shall be judicially determined to
7
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
19. Titles and Subtitles. The titles of the Sections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. This Agreement may be executed by facsimile
signatures.
IN WITNESS WHEREOF the parties have signed this Agreement.
Nur Macroprinters Ltd.
By: ______________________
Date: _____________________
Bank Hapoalim B.M.
By: __________________
Date: _________________
8
