EXHIBIT 4.12
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WARRANT
THIS WARRANT AND THE ORDINARY SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT (the
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (the "SECURITIES ACT") OR QUALIFIED UNDER ANY STATE OR FOREIGN
SECURITIES LAW, AND THE WARRANT MAY NOT BE EXERCISED AND THE WARRANT AND THE
ORDINARY SHARES ISSUABLE UPON EXERCISE MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
ASSIGNED OR HYPOTHECATED, UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT COVERING THIS WARRANT AND/OR SUCH SECURITIES, OR THE
HOLDER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THE WARRANT AND/OR SUCH
SECURITIES SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, TRANSFER, PLEDGE,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS
UNDER APPLICABLE LAW.
to purchase
Ordinary Shares
of
NUR MACROPRINTERS LTD.
at a price of $5.00 per share
VOID AFTER 17:00 p.m. (prevailing Tel Aviv time)
On the Expiration Date (as hereinafter defined)
in favor of
BANK LEUMI LE-ISRAEL B.M.
No. W-1
NUR MACROPRINTERS LTD., an Israeli company with its principal offices at12 Abba
Hilel Silver Street, Lod, Israel (the "Company"), hereby grants to Bank Leumi
le-Israel B.M. (the "Holder"), the right to purchase, subject to the terms and
conditions hereof, up to Fifty Thousand (50,000) of the Company's Ordinary
Shares, par value NIS 1.0 per share ("Ordinary Shares"), exercisable at any time
from time to time, on or after the second anniversary of the date hereof (the
"Effective Date"), and until the second anniversary of such date (the
"Expiration Date"), provided that the Company has not, prior to the exercise or
transfer of this Warrant, prepaid to the Holder the sum of 5 Million United
States Dollars ($5,000,000) of the Long Term Debt as defined under the terms and
conditions of a certain document entitled Additional Conditions to the General
Terms for Opening and Operating an Account in Foreign Currency and in Israeli
Currency signed on 11.02.02 by and among the Holder and the Company (the
"Rescheduling Agreement"). For the avoidance of doubt, it is hereby clarified
that the prepayment of the above-mentioned 5 Million United States Dollars
($5,000,000) shall mean the payment of 5 Million
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United States Dollars ($5,000,000) in advance of the payment schedule provided
for in the Rescheduling Agreement.
In addition for the avoidance of doubt, it is hereby clarified that following
the exercise or transfer of this Warrant in accordance with the terms hereof,
such prepayment of Long Term Debt shall not cancel or otherwise lessen, limit or
prejudice the rights of the Holder or transferee under the Warrant, which rights
shall remain in full force notwithstanding any prepayment.
(Hereinafter: (i) the Ordinary Shares purchasable hereunder or any other
securities which may be issued by the Company in substitution therefor, are
referred to as the "Warrant Shares"; (ii) the price of Five United States
Dollars ($5.00) payable hereunder for each of the Warrant Shares, as adjusted in
the manner set forth hereinafter, is referred to as the "Exercise Price" and
(iii) this Warrant and all warrants hereafter issued in exchange or substitution
for this Warrant are referred to as the "Warrants". The Exercise Price and the
number of Warrant Shares are subject to adjustment as hereinafter provided.)
1. Warrant Period; Exercise of Warrant
1.1 (a) This Warrant may be exercised in whole at any time, or in part from
time to time, beginning on the Effective Date until the Expiration Date (the
"Warrant Period"), by the surrender of this Warrant (with a duly executed
exercise form in the form attached at the end hereof as Exhibit A), along with
the Exercise Certificate or the Exercise Opinion (each as defined in Section
1.1(b) below), at the principal office of the Company, set forth above, together
with proper payment of the Exercise Price multiplied by the number of Warrant
Shares for which the Warrant is being exercised. Payment for Warrant Shares
shall be made by certified or official bank check or checks, payable to the
order of the Company or by wire transfer to an account to be designated in
writing by the Company. Payments shall be made in United States dollars.
(b) This Warrant may not be exercised unless the Holder delivers to the
Company (a) written certification that it is not a "U.S. person" (as defined in
Regulation S under the Securities Act) and the Warrant is not being exercised on
behalf of a U.S person (an "Exercise Certificate") or (b) a written opinion of
counsel to the effect that the Warrant and the Warrant Shares have been
registered under the Securities Act and applicable state securities laws or an
exemption from such registration is available, which counsel and opinion shall
be reasonable satisfactory to the Company ("Exercise Opinion").
1.2 If this Warrant should be exercised in part, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a new Warrant
evidencing the rights of the Holder to purchase the remainder of the Ordinary
Shares purchasable hereunder. The Company shall pay any and all expenses, taxes
and other charges that may be payable in connection with the issuance of the
Warrant Shares and the preparation and delivery of share certificates pursuant
to this Section 1 in the name of the Holder, and to the extent required, the
execution and delivery of a new Warrant, provided, however, that the Company
shall only be required to pay taxes which are due as a direct result of the
issuance of the Ordinary Shares or other securities, properties or rights
underlying such Warrants (such as the applicable stamp duty), and will not be
required to pay any tax which may be (i) due as a result of the specific
identity of the Holder or (ii) payable in respect of any transfer involved in
the issuance and delivery of any such certificates in a name other than that of
the Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to
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the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
1.3 No fractions of Ordinary Shares shall be issued in connection with the
exercise of this Warrant, and the number of Ordinary Shares issued shall be
rounded down to the nearest whole number.
2. Reservation of Shares
The Company covenants that: (i) at all times during the Warrant Period it shall
have in reserve, and will keep available solely for issuance or delivery upon
exercise of the Warrant, such number of Ordinary shares as shall be issuable
upon the exercise thereof, and (ii) upon exercise of the Warrant and payment of
the Exercise Price therefor, the Warrant Shares issuable upon such exercise will
be validly issued, fully paid, nonassessable, free and clear from any lien,
encumbrance, pledge or any other third party right and not subject to any
preemptive rights.
3. Adjustments to Exercise Price and Number of Securities.
3.1 Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding Ordinary Shares, the Exercise Price shall
forthwith be proportionately decreased in the case of subdivision or increased
in the case of combination.
3.2 Stock Dividends and Distributions. In case the Company shall pay a
dividend on, or make a distribution of, Ordinary Shares or of the Company's
capital stock convertible into Ordinary Shares, the Exercise Price shall
forthwith be proportionately decreased. An adjustment made pursuant to this
Section 3.2 shall be made as of the record date for the subject stock dividend
or distribution.
3.3 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 3, the number of
Ordinary Shares issuable upon the exercise of each Warrant shall be adjusted to
the nearest full amount by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Ordinary Shares
issuable upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
3.4 Definition of Ordinary Shares. For the purpose of this Agreement, the
term "Ordinary Shares" shall mean (i) the class of stock designated as Ordinary
Shares in the Articles of Association of the Company as may be amended as of the
date hereof, or (ii) any other class of stock resulting from successive changes
or reclassifications of such Ordinary Shares consisting solely of changes in
nominal value, or from nominal value to no nominal value, or from no nominal
value to nominal value.
3.5 No Adjustment of Exercise Price in Certain Cases. No adjustment of the
Exercise Price shall be made if the amount of said adjustment shall be less than
2 cents ($.02) per Ordinary Share, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least 2 cents ($.02) per Ordinary Share.
3.6 Merger or Consolidation. In case of any consolidation of the Company
with or merger of the Company with, or merger of the Company into, (other than a
merger which does not result in any reclassification or change of the
outstanding Ordinary Shares), the Company shall cause the
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corporation formed by such consolidation or merger to execute and deliver to the
Holder a supplemental warrant agreeement providing that the Holder of the
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to receive, upon exercise of such
Warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consilidation or merger, by a holder of the number
of Ordinary Shares of the Company for which such Warrant might have been
exercised immediately prior ro such consolidation, merger, sale or transfer.
Such supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in Section 3. The above provision of this
Subsection shall similarly apply to successive consolidations or mergers.
4. Notices to Warrant Holders. Nothing contained in this Agreement shall
be construed as conferring upon the Holder the right to vote or to consent or to
receive notice as a stockholder in respect of any meetings of stockholders for
the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the Expiration Date, any of the following events shall occur:
(a) the Company shall take a record of the holders of its Ordinary
Shares for the purpose of entitling them to receive a dividend or distribution
payable otherwise than in cash, or a cash dividend or distribution payable
otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Ordinary Shares
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than
in connection with a consolidation or merger) or a sale of all or substantially
all of its property, assets and business as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give to the Holder
written notice of such event at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale.
5. Non-Transferability
(a) The Holder covenants and agrees that the Warrants are being
acquired as an investment and not with a view to the distribution thereof. The
Holder shall not sell, transfer, assign, encumber, pledge or otherwise dispose
or undertake to dispose of ("Sell") the Warrants until the Effective Date.
Thereafter, the Holder may, subject to applicable securities laws and the
conditions set forth herewith, Sell, all or any portion of the Warrants,
provided that the Holder may only Sell the Warrants on one occasion, to no more
than one (1) transferee. Except as otherwise provided herein, the sale of the
Warrant, shall confer upon the transferee all of the rights, privileges, and
obligations set forth in, arising under, or created by this Agreement, provided
however that such assignment shall with respect to the Registration Rights, only
be assigned pursuant to the Registration Rights Schedule.
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(b) Unless registered, the Warrant Shares issued upon exercise of the
Warrants shall be subject to a stop transfer order and the certificate or
certificates evidencing such Warrant Shares shall bear legend substantially
similar to the following:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, PURSUANT
TO A REGISTRATION STATEMENT. ACCORDINGLY, SUCH SHARES MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER
SUCH ACT, OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT."
6. Registration Rights
The Holders of the Ordinary Shares shall be entitled to the registration rights
as provided for in the Registration Rights Schedule attached thereto.
7. Loss, etc. of Warrant
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, and upon reimbursement of the
Company's reasonable direct expenses, the Company shall execute and deliver to
the Holder a new Warrant of like date, tenor and denomination.
8. Headings
The headings of this Warrant have been inserted as a matter of convenience and
shall not affect the construction hereof.
9. Notices.
Unless otherwise provided, any notice required or permitted under this Warrant
shall be given in writing and shall be deemed effectively given upon personal
delivery to the party to be notified or seven (7) days after deposit with the
Post Authority, for dispatch by registered or certified mail, postage prepaid
and addressed to the Holder at the address set forth in the Company's books and
to the Company at the address of its principal offices set forth above, or when
given by telecopier or other form of rapid written communication, provided that
confirming copies are sent by such airmail.
10. Governing Law
This Warrant shall be governed by and construed and enforced in accordance with
the laws of the State of Israel (regardless of the laws that might otherwise
govern under applicable Israel principles of conflicts of law). The Parties
hereto shall submit to the exclusive jurisdiction of the competent Courts of
Tel-Aviv any dispute or matter arising out of or connected with this Warrant.
Anything to the contrary notwithstanding, the provisions of this Section 10
shall not apply to the Registration Rights schedule, which shall be subject to
the provisions thereof.
10. Entire Agreement; Amendment and Waiver
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This Warrant and the schedule hereto constitute the full and entire
understanding and agreement between the parties with regard to the subject
matters hereof and thereof. Any term of this Warrant may be amended and the
observance of any term hereof may be waived (either prospectively or
retroactively and either generally or in a particular instance) only with the
written consent of both the Holder and the Company.
IN WITNESS WHEREOF, the Company has caused this Ordinary Share Purchase Warrant
to be executed as of the date first written above.
NUR MACROPRINTERS LTD.
By: ____________________________________
Xxxxx Xxxxxx, VP & Finance & CFO
Date: 12.02.2002
194457/2
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EXHIBIT A
WARRANT EXERCISE FORM
Date:____________________
To: Nur Macroprinters Ltd.
Re: Exercise of Warrant
The undersigned hereby irrevocably elects to exercise the attached Warrant No.
___ to the extent of ___________________ Ordinary Shares of Nur Macroprinters
Ltd. at $5.00 per Ordinary Share. Payment to the Company of the total purchase
price for such shares has been made simultaneously with the delivery of this
exercise of warrant.
By: ___________________
