WARRANT AGREEMENT
This Warrant Agreement (this "Agreement") dated as of February ___, 1999
is by and between Nur Macroprinters Ltd., an Israeli corporation (the "Company")
and Cruttenden ▇▇▇▇ Incorporated ("Cruttenden").
WHEREAS, Cruttenden has agreed pursuant to a Qualified Independent
Underwriting Agreement dated February ___, 1999 (the "QIU Agreement") to act as
qualified independent underwriter in the shelf registration of 9,119,483 of the
Company's Ordinary Shares, NIS 1.00 nominal value (the "Ordinary Shares") (the
"Shelf Registration"); and
WHEREAS, the Company has agreed to issue warrants (the "Warrants") to
Cruttenden to purchase, at a price of $4.50 per warrant, an aggregate of 25,000
(hereinafter, and as the number thereof may be adjusted hereto, the "Warrant
Shares") Ordinary Shares, each Warrant initially entitling the holder thereof to
purchase one Ordinary Share.
.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein and in the QIU Agreement set forth and for other good and
valuable consideration, the parties hereto agree as follows:
1. Issuance of Warrants; Form of Warrant. The Company will issue and
deliver to Cruttenden, Warrants to purchase 25,000 Warrant Shares on the
Effective Date referred to in the QIU Agreement, in consideration for, and as
part of Cruttenden's compensation in connection with, its acting as Qualified
Independent Underwriter in the Shelf Registration. The text of the Warrants and
of the form of election to purchase Warrants Shares shall be substantially as
set forth in Exhibit A attached hereto. The Warrants shall be executed on behalf
of the Company by the manual or facsimile signature of the present or any future
Chairman of the Board, President or Vice President of the Company, under its
corporate seal, affixed or in facsimile, attested by the manual or facsimile
signature of the Secretary or an Assistant Secretary of the Company.
Warrants bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any one of them shall have ceased to
hold such offices prior to the delivery of such Warrants or did not hold such
offices on the date of this Agreement. Warrants shall be dated as of the date of
execution thereof by the Company either upon initial issuance or upon division,
exchange, substitution or transfer.
2. Registration. The Warrants shall be numbered and registered on the
books of the Company (the "Warrant Register") as they are issued. The Company
shall be entitled to treat the registered holder of any Warrant on the Warrant
Register (the "Holder") as the owner in fact therefor for all purposes and shall
not be bound to recognize any equitable or other claim to or interest in such
Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or are to be
registered in the name of a fiduciary or the nominee of a fiduciary unless made
with the actual knowledge that a fiduciary or nominee is committing a breach of
trust in requesting such registration or transfer, or with the knowledge of such
facts that its participation therein amounts to bad faith. The Warrants shall be
registered initially in the name of "Cruttenden
▇▇▇▇ Incorporated" or in such other denominations as Cruttenden may request in
writing to the Company.
3. Exchange of Warrant Certificates. Subject to any restriction upon
transfer set forth in this Agreement, each Warrant certificate may be exchanged
for another certificate or certificates entitling the Holder thereof to purchase
a like aggregate number of Warrant Shares as the certificate or certificates
surrendered then entitled such Holder to purchase. Any Holder desiring to
exchange a Warrant certificate or certificates shall make such request in
writing delivered to the Company, and shall surrender, properly endorsed, the
certificate or certificates to be so exchanged. Thereupon, the Company shall
execute and deliver to the person entitled thereto a new Warrant certificate or
certificates, as the case may be, as so requested.
4. Transfer of Warrants. Until February __, 2000, the Warrants will not
be sold, transferred, assigned or hypothecated except to (i) other brokers or
dealers participating in the offering; (ii) one or more bona fide officers
and/or partners of Cruttenden; (iii) a successor to the transferring Holder in
merger or consolidation; (iv) a purchaser of all or substantially all of the
transferring Holder's assets; or (v) any person receiving the Warrants from one
or more of the persons listed in this Section 4 at such person's or persons'
death pursuant to will, trust or the laws of intestate succession, each of whom
agrees in writing to be bound by the terms hereof. The Warrants shall be
transferable only in compliance with Sections 13 and 14 hereof and on the
Warrant Register upon delivery thereof duly endorsed by the Holder or by the
Holder's duly authorized attorney or representative, or accompanied by proper
evidence of succession, assignment or authority to transfer. In all cases of
transfer by an attorney, the original power of attorney, duly approved, or an
official copy thereof, duly certified, shall be deposited with the Company. In
case of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
produced and may be required to be deposited with the Company in its discretion.
Upon any registration of transfer, the Company shall deliver a new Warrant or
Warrants to the person entitled thereto.
5. Term of Warrants; Exercise of Warrants.
5.1 Each Warrant entitles the registered owner thereof to
purchase one share of Ordinary Shares at any time from 10:00 a.m., Pacific time,
on February __, 2000 (the "Initiation Date") until 6:00 p.m., Pacific time, on
February __, 2004 (the "Expiration Date") at a purchase price of $4.50 subject
to adjustment (the "Warrant Price").
5.2 The Warrant Price and the number of Warrant Shares issuable
upon exercise of each Warrant are subject to adjustment upon the occurrence of
certain events, pursuant to the provisions of Section 11 of this Agreement.
Subject to the provisions of this Agreement, each Holder of Warrants shall have
the right, which may be exercised as expressed in the Warrant Certificate, to
purchase from the Company (and the Company shall issue and sell to such Holder
of Warrants) the number of fully paid and nonassessable Warrant Shares specified
in such Warrant Certificate, upon surrender to the Company, or its duly
authorized agent, of such Warrant Certificate, with the form of election to
purchase on the reverse thereof duly filled in and signed, and upon payment to
the Company of the Warrant Price, as adjusted in accordance with the provisions
of Section 11 of this Agreement, for the number of Warrant Shares in respect of
which such Warrants are then exercised. Payment of such Warrant Price shall be
made in cash, by wire transfer or by certified or official bank check, or any
combination thereof. No adjustment shall be made for any dividends on any
Warrant Shares of stock issuable upon exercise of a Warrant.
-2-
5.3 Upon such surrender of Warrants, and payment of the Warrant
Price as aforesaid, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the Holder of such Warrants
and in such name or names as such registered Holder may designate, a certificate
or certificates for the number of full Warrant Shares so purchased upon the
exercise of such Warrants, together with cash, as provided in Section 12 of this
Agreement, in respect of any fraction of a share otherwise issuable upon such
surrender and, if the number of Warrants represented by a Warrant certificate
shall not be exercised in full, a new Warrant certificate, executed by the
Company for the balance of the number of whole Warrant Shares.
5.4 In addition to the method of payment set forth in Section 5.2
and in lieu of any cash payment required thereunder, the Holder of the Warrants
shall have the right at any time and from time to time to exercise the Warrants
in full or in part by surrendering the Warrant Certificate in the manner
specified in Section 5.2 in exchange for the number of shares of Ordinary Shares
of the Company equal to: (A) the number of shares of Ordinary Shares as to which
the Warrants are being exercised multiplied by (B) a fraction, (1) the numerator
of which is the difference between the Closing Price for the Ordinary Shares and
the Warrant Price and (2) the denominator of which is the Closing Price for the
Ordinary Shares. Solely for the purposes of this paragraph, Closing Price shall
be calculated either (i) on the date which the form of election to purchase on
the reverse of the Warrant Certificate is deemed to have been sent to the
Company ("Notice Date") or (ii) as the average of the Closing Prices for each of
the 20 trading days preceding the Notice Date, whichever of (i) or (ii) is
greater.
5.5 If permitted by applicable law, such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
shares as of the date of the surrender of such Warrants and payment of the
Warrant Price as aforesaid. The rights of purchase represented by the Warrants
shall be exercisable, at the election of the registered Holders thereof, either
as an entirety or from time to time for only part of the shares specified
therein.
6. Compliance with Government Regulations. The Company covenants that if
any shares of Ordinary Shares required to be reserved for purposes of exercise
or conversion of Warrants require, under any Federal or state law or applicable
governing rule or regulation of any national securities exchange, registration
with or approval of any governmental authority, or listing on any such national
securities exchange before such shares may be issued upon exercise, the Company
will use its best efforts to cause such shares to be duly registered, approved
or listed on the relevant national securities exchange, as the case may be;
provided, however, that (except to the extent legally permissible with respect
to any Warrant of which Cruttenden is the Holder) in no event shall such shares
of Ordinary Shares be issued, and the Company is hereby authorized to suspend
the exercise of all Warrants, for the period during which such registration,
approval or listing is required but not in effect.
7. Payment of Taxes. The Company will pay all documentary stamp taxes,
if any, attributable to the initial issuance of the Warrants or the securities
comprising the Warrant Shares upon the exercise of Warrants; provided, however,
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issue or delivery of any
warrants or certificate for Warrant Shares in a name other than that of the
registered Holder of such warrants.
-3-
8. Mutilated or Missing Warrants. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right or interest; but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of such Warrant and, if requested, indemnity or bond also
reasonably satisfactory to the Company. An applicant for such substitute
Warrants shall also comply with such other reasonable regulations and pay such
other reasonable charges as the Company may prescribe.
9. Reservation of Warrant Shares. There has been reserved out of the
authorized and unissued shares of Ordinary Shares a number of shares sufficient
to provide for the exercise of the Warrants, and the transfer agent for the
Ordinary Shares ("Transfer Agent") and every subsequent Transfer Agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid are hereby irrevocably authorized and directed at
all times until the Expiration Date to reserve such number of authorized and
unissued shares as shall be required for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent and with every subsequent
Transfer Agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The Company will
supply such Transfer Agent with duly executed stock certificates for such
purposes and will itself provide or otherwise make available any cash which may
be issuable as provided in Section 12 of this Agreement. The Company will
furnish to such Transfer Agent a copy of all notices of adjustments, and
certificates related thereto, transmitted to each Holder pursuant to Section
11.2 of this Agreement. All Warrants surrendered in the exercise of the rights
thereby evidenced shall be cancelled.
10. Obtaining Stock Exchange Listings. The Company will use its best
efforts to time take all action which may be necessary so that the Warrant
Shares, immediately upon their issuance upon the exercise of Warrants, will be
listed on the securities exchanges and stock markets within the United States of
America, if any, on which other shares of Ordinary Shares are then listed.
11. Adjustment of Warrant Price and Number of Warrant Shares. The number
and kind of securities purchasable upon the exercise of each Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events as hereinafter defined. For purposes of this Section
11, "Ordinary Shares" means shares now or hereafter authorized of any class of
Ordinary Shares of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
11.1 Mechanical Adjustments. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price shall be
subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares
of Ordinary Shares, (ii) subdivide its outstanding shares of Ordinary Shares,
(iii) combine its outstanding shares of Ordinary Shares or (iv) issue by
reclassification of its shares of Ordinary Shares other securities of the
Company (including any such reclassification in connection with a consolidation
or merger in which the Company is the surviving corporation), the number of
Warrant Shares purchasable upon exercise of each warrant immediately prior
thereto shall be adjusted so that the Holder of each Warrant shall be entitled
to receive the kind and number of Warrant Shares or other securities of the
Company which he would have owned or would have been entitled to receive after
the happening of any of the events
-4-
described above, had such Warrants been exercised immediately prior to the
happening of such event or any record date with respect thereto. An adjustment
made pursuant to this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event. Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) In case the Company shall distribute to all holders of
its shares of Ordinary Shares (including any such distribution made in
connection with a consolidation or merger in which the Company is the surviving
corporation) evidences of its indebtedness or assets (excluding cash dividends
or distributions payable out of consolidated earnings or earned surplus and
dividends or distributions referred to in paragraph (a) above or in the
paragraph immediately following this paragraph) or rights, options or warrants,
or convertible or exchangeable securities containing the right to subscribe for
or purchase shares of Ordinary Shares, then in each case the number of Warrant
Shares thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares theretofore purchasable
upon the exercise of each Warrant by a fraction, the numerator of which shall be
the then current market price per share of Ordinary Shares (as defined in
paragraph (c) below) on the date of such distribution, and the denominator of
which shall be the then current market price per share of Ordinary Shares, less
the then fair value (as reasonably determined by the Board of Directors of the
Company) of the portion of the assets or evidences of indebtedness so
distributed or of such subscription rights, options or warrants, or of such
convertible or exchangeable securities applicable to one share of Ordinary
Shares. Such adjustment shall be made whenever any such distribution is made and
shall become effective on the date of distribution retroactive to the record
date for the determination of stockholders entitled to receive such
distribution.
(c) For the purpose of any computation under paragraph (b)
of this Section, the current market price per share of Ordinary Shares at any
date shall be the average of the average of the closing bid and asked prices for
20 consecutive trading days commencing 30 trading days before the date of such
computation. The selling price for each day (the "Closing Price") shall be the
last such reported sales price regular way or, in case no such reported sale
takes place on such day, the average of the closing bid and asked prices regular
way for such day, in each on the principal national securities exchange on which
the shares of Ordinary Shares are listed or admitted to trading or, if not
listed or admitted to trading, the average of the closing bid and asked prices
of the Ordinary Shares in the over-the counter market as reported by the Nasdaq
National Market System or Nasdaq SmallCap System or if not approved for
quotation on the Nasdaq National Market System or Nasdaq SmallCap System, the
average of the closing bid and asked prices as furnished by two members of the
National Association of Securities Dealers, Inc. selected from time to time by
the Company for that purpose.
(d) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the number of Warrant
Shares purchasable upon the exercise of each Warrant; provided, however, that
any adjustments which by reason of this paragraph (d) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest one-thousandth of a
share.
(e) Whenever the number of Warrant Shares purchasable upon
the exercise of each Warrant is adjusted, as herein provided, the Warrant Price
payable upon exercise of each Warrant shall be adjusted by multiplying such
Warrant Price immediately prior to such adjustment by a fraction, the numerator
of which shall be the number of Warrant Shares purchasable upon the exercise
-5-
of each Warrant immediately prior to such adjustment, and the denominator of
which shall be the number of Warrant Shares purchasable immediately thereafter.
(f) No adjustment in the number of Warrant Shares
purchasable upon the exercise of each Warrant need be made under paragraph (b)
if the Company issues or distributes to each Holder of Warrants upon the
exercise thereof the rights, options, warrants or convertible or exchangeable
securities, or evidences of indebtedness or assets referred to in those
paragraphs which each Holder of Warrants would have been entitled to receive had
the Warrants been exercised prior to the happening of such event or the record
date with respect thereto. No adjustment need be made for a change in the par
value of the Warrant Shares.
(g) In the event that at any time, as a result of an
adjustment made pursuant to paragraph (a) above, the Holders shall become
entitled to purchase any securities of the Company other than shares of Ordinary
Shares, thereafter the number of such other shares so purchasable upon exercise
of each Warrant and the Warrant Price of such shares shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Warrant Shares contained in
this Section 11, and the other provisions of this Agreement, with respect to the
Warrant and Warrant Shares, shall apply as nearly equivalent as practicable on
like terms to such other securities.
(h) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges for which an adjustment was made hereunder, if
any thereof shall not have been exercised, the Warrant Price and the number of
shares of Ordinary Shares purchasable upon the exercise of each Warrant shall,
upon such expiration, be readjusted and shall thereafter be such as it would
have been had it been originally adjusted (or had the original adjustment not
been required, as the case may be) as if (i) the only shares of Ordinary Shares
so issued were the shares of Ordinary Shares, if any, actually issued or sold
upon the exercise of such rights, options, warrants or conversion or exchange
rights and (ii) such shares of Ordinary Shares, if any, were issued or sold for
the consideration actually received by the Company upon such exercise plus the
aggregate consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or conversion or
exchange rights whether or not exercised; provided, however, that no such
readjustment shall have the effect of increasing the Warrant Price or decreasing
the number of shares of Ordinary Shares purchasable upon the exercise of each
Warrant by an amount in excess of the amount of the adjustment initially made in
respect to the issuance, sale or grant of such rights, options, warrants or
conversion or exchange rights.
11.2 Notice of Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Warrant Price of such
Warrant Shares is adjusted, as herein provided, the Company shall promptly mail
by first class, postage prepaid, to each Holder notice of such adjustment or
adjustments and a certificate of a firm of independent public accountants
selected by the Board of Directors of the Company (who may be the regular
accountants employed by the Company) setting forth the number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price of such
Warrant Shares after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation by which such
adjustment was made.
-6-
11.3 No Adjustment for Dividends. Except as provided in Section
11.1, no adjustments in respect of any dividends shall be made during the term
of a Warrant or upon the exercise of a Warrant.
11.4 Preservation of Purchase Rights Upon Merger, Consolidation
etc. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all the property of the Company, the Company
or such successor or purchasing corporation, as the case may be, shall execute
with each Holder an agreement that each Holder shall have the right thereafter
upon payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities, cash and property which he would have owned or would have been
entitled to receive after the happening of such consolidation, merger, sale,
transfer or lease had such Warrant been exercised immediately prior to such
action; provided, however, that no adjustment in respect of dividends, interest
or other income on or from such shares or other securities, cash and property
shall be made during the term of a Warrant or upon the exercise of a Warrant.
Such agreement shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
11. The provisions of this Section 11.4 shall similarly apply to successive
consolidations, mergers, sales transfer or leases.
11.5 Statements on Warrants. Irrespective of any adjustments in
the Warrant Price or the number or kind of shares purchasable upon the exercise
of the Warrants, Warrants theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated in the
Warrants initially issuable pursuant to this Agreement.
12. Fractional Interests. The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise in full at the same time by the same holder, the
number of full Warrant Shares which shall be issuable upon the exercise thereon
shall be computed on the basis of the aggregate number of Warrant Shares
purchasable on exercise of the Warrants so presented. If any fraction of a
Warrant Share would, except for the provisions of this Section 12 be issuable on
the exercise of any Warrant (or specified portion thereof), the Company shall
round to the nearest whole share.
13. Registration Under the Securities Act of 1933. Cruttenden represents
and warrants to the Company that it will not dispose of the Warrants or the
Warrant Shares except pursuant to (i) an effective registration statement under
the Securities Act of 1933, as amended (the "Act"), including a post-effective
amendment to the Registration Statement, (ii) Rule 144 under the Act (or any
similar rule under the Act relating to the disposition of securities), or (iii)
an opinion of counsel, reasonably satisfactory to counsel of the Company, that
an exemption from such registration is available.
14. Certificates to Bear Legends. The Warrant, the Warrant Shares or
other securities issued upon exercise of the Warrant shall be subject to a
stop-transfer order and the certificate or certificates therefore shall bear the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW. SAID SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
-7-
15. Registration Rights.
15.1 Demand Registration Rights. The Company covenants and agrees
with Cruttenden and any subsequent Holders of the Warrants and/or Warrant Shares
that, on one occasion, within 60 days after receipt of a written request from
Holders of more than 50% in interest of the aggregate of Warrants and/or Warrant
Shares issued pursuant to this Agreement that such Holders of the Warrants
and/or Warrant Shares desire and intend to transfer more than 50% in interest of
the aggregate number of the Warrants and/or Warrant Shares under such
circumstances that a public offering, within the meaning of the Act, will be
involved, the Company shall, on that one occasion, file a registration statement
(and use its best efforts to cause such registration statement to become
effective under the Act at the Holder's expense) with respect to the offering
and sale or other disposition of the Warrant Shares (the "Offered Warrant
Shares"); provided, however, that the Company shall have no obligation to comply
with the foregoing provisions of this Section 15.1 if in the opinion of counsel
to the Company reasonably acceptable to the Holder or Holders, from whom such
written requests have been received, registration under the Act is not required
for the transfer of the Offered Warrant Shares in the manner proposed by such
person or persons or that a post-effective amendment to an existing registration
statement would be legally sufficient for such transfer (in which latter event
the Company shall promptly file such post-effective amendment (and use its best
efforts to cause such amendment to become effective under the Act)).
Notwithstanding the foregoing, the Company shall not be obligated to file a
registration statement with respect to the Offered Warrant Shares on more than
one occasion.
The Company may defer the preparation and filing of a registration
statement for up to 90 days after the request for registration is made if the
Board of Directors determines in good faith that such registration or
post-effective amendment would materially adversely affect or otherwise
materially interfere with a proposed or pending transaction by the Company,
including without limitation a material financing or a corporate reorganization,
or during any period of time in which the Company is in possession of material
inside information concerning the Company or its securities, which information
the Company determines in good faith is not ripe for disclosure.
The Company shall not honor any request to register Warrant Shares
pursuant to this Section 15.1 received later than five (5) years from the
effective date of the Company's Registration Statement on Form F-1 (File No.
333-66103) (the "Effective Date"). The Company shall not be required (i) to
maintain the effectiveness of the registration statement beyond the earlier to
occur of 90 days after the effective date of the registration statement or the
date on which all of the Offered Warrant Shares have been sold (the "Termination
Date"); provided, however, that if at the Termination Date the Offered Warrant
Shares are covered by a registration statement which also covers other
securities and which is required to remain in effect beyond the Termination
Date, the Company shall maintain in effect such registration statement as it
relates to Offered Warrant Shares for so long as such registration statement (or
any substitute registration statement) remains or is required to remain in
effect for any such other securities, or (ii) to cause any registration
statement with respect to the Warrant Shares to become effective prior to the
Initiation Date. All Company expenses of registration pursuant to this Section
15.1 shall be borne by the Holders.
The Company shall be obligated pursuant to this Section 15.1 to include
in the registration statement Warrant Shares that have not yet been purchased by
a Holder of Warrants so long as such Holder of Warrants submits an undertaking
to the Company that such Holder intends to exercise Warrants representing the
number of Warrant Shares to be included in such registration statement prior
-8-
to the consummation of the public offering with respect to such Warrant Shares.
In addition, such Holder of Warrants is permitted to pay the Company the Warrant
Price for such Warrant Shares upon the consummation of the public offering with
respect to such Warrant Shares.
15.2 Piggy-back Registration Rights. The Company covenants and
agrees with the Holders and any subsequent Holders of the Warrants and/or
Warrant Shares that in the event the Company proposes to file a registration
statement under the Act with respect to any class of security (other than in
connection with a merger an exchange offer, a non-cash offer or a registration
statement on Form ▇-▇, ▇-▇ or other unsuitable registration statement form)
which becomes or which the Company believes will become effective at any time
after the Initiation Date then the Company shall in each case give written
notice of such proposed filing to the Holders of Warrants and Warrant Shares at
least 20 days before the proposed filing date and such notice shall offer to
such Holders the opportunity to include in such registration statement such
number of Warrant Shares as they may request, unless, in the opinion of counsel
to the Company reasonably acceptable to any such Holder of Warrants or Warrant
Shares who wishes to have Warrant Shares included in such registration
statement, registration under the Act is not required for the transfer of such
Warrants and/or Warrant Shares in the manner proposed by such Holders. The
Company shall not honor any such request to register any such Warrant Shares if
the request is received later than five (5) years from the Effective Date, and
the Company shall not be required to honor any request (a) to register any such
Warrant Shares if the Company is not notified in writing of any such request
pursuant to this Section 15.2 within at least 10 days after the Company has
given notice to the Holders of the filing, or (b) to register Warrant Shares
that represent in the aggregate fewer than 25% of the aggregate number of
Warrant Shares. The Company shall permit, or shall cause the managing
underwriter of a proposed offering to permit, the Holders of Warrant Shares
requested to be included in the registration (the "Piggy-back Shares") to
include such Piggy-back Shares in the proposed offering on the same terms and
conditions as applicable to securities of the Company included therein or as
applicable to securities of any person other than the Company and the Holders of
Piggy-back Shares if the securities of any such person are included therein.
Notwithstanding the foregoing, if any such managing underwriter shall advise the
Company in writing that it believes that the distribution of all or a portion of
the Piggy-back Shares requested to be included in the registration statement
concurrently with the securities being registered by the Company would
materially adversely affect the distribution of such securities by the Company
for its own account, then the Holders of such Piggy-back Shares shall delay
their offering and sale of Piggyback Shares (or the portion thereof so
designated by such managing underwriter) for such period, not to exceed 180
days, as the managing underwriter shall request provided that no such delay
shall be required as to Piggy-back Shares if any securities of the Company are
included in such registration statement for the account of any person other than
the Company and the Holders of Piggy-back Shares. In the event of such delay,
the Company shall file such supplements, post-effective amendments or separate
registration statement, and take any such other steps as may be necessary to
permit such Holders to make their proposed offering and sale for a period of 90
days immediately following the end of such period of delay ("Piggy-back
Termination Date"); provided, however, that if at the Piggy-back Termination
Date the Piggyback Shares are covered by a registration statement which is, or
is required to remain, in effect beyond the Piggy-back Termination Date, the
Company shall maintain in effect the registration statement as it relates to the
Piggy-back Shares for so long as such registration statement remains or is
required to remain in effect for any of such other securities. All expenses of
registration pursuant to this Section 15.2 shall be borne by the Company, except
that underwriting commissions and expenses attributable to the Piggy-back Shares
and fees and disbursements of counsel (if any) to the Holders requesting that
such Piggy-back Shares be offered will be borne by such Holders.
-9-
The Company shall be obligated pursuant to this Section 15.2 to include
in the Piggy-back Offering, Warrant Shares that have not yet been purchased by a
holder of Warrants so long as such Holder of Warrants submits an undertaking to
the Company that such Holder intends to exercise Warrants representing the
number of Warrant Shares to be included in such Piggy-back Offering prior to the
consummation of such Piggy-back Offering. In addition, such Holder of Warrants
is permitted to pay the Company the Warrant Price for such Warrant Shares upon
the consummation of the Piggy-back Offering.
If the Company decides not to proceed with a Piggy-back Offering, the
Company has no obligation to proceed with the offering of the Piggy-back Shares,
unless the Holders of the Warrants and/or Warrant Shares otherwise comply with
the provisions of Section 15.1 hereof (without regard to the 60 days' written
request required thereby).
15.3 In connection with the registration of Warrant Shares in
accordance with Section 15.1 and 15.2 above, the Company agrees to:
(a) Use its best efforts to register or qualify the
Warrant Shares for offer or sale under the state securities or Blue Sky
laws of such states which the Holders of such Warrant Shares shall
reasonably designate, until the dates specified in Section 15.1 and 15.2
above in connection with registration under the Act; provided, however,
that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general service of process in any
jurisdiction where it is not now so subject or to register or get a
license as a broker or dealer in securities in any jurisdiction where it
is not so registered or licensed or to register or qualify the Warrant
Shares for offer or sale under the state securities or Blue Sky laws of
any state other than the states in which some or all of the shares
offered or sold in the Public Offering were registered or qualified for
offer and sale.
(b) (i) In the event of any post-effective amendment or
other registration with respect to any Warrant Shares pursuant to
Section 15.1 or 15.2 above, the Company will indemnify and hold harmless
any Holder whose Warrant Shares are being so registered, and each
person, if any, who controls such Holder within the meaning of the Act,
against any losses, claims, damages or liabilities, joint or several, to
which such Holder or such controlling person may be subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any such registration
statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse each such Holder and each
such controlling person for any legal or other expenses reasonably
incurred by such Holder or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in any such registration statement,
any preliminary prospectus or final prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished by such Holder expressly for use in the
preparation thereof. The Company will not be liable to a claimant to the
extent of any misstatement corrected or remedied in any amended
-10-
prospectus if the Company timely delivers a copy of such amended
prospectus to such indemnified person and such indemnified person does
not timely furnish such amended prospectus to such claimant. The Company
shall not be required to indemnify any Holder or controlling person for
any payment made to any claimant in settlement of any suit or claim
unless such payment is approved by the Company.
(ii) Each Holder of Warrants and/or Warrant Shares who
participates in a registration pursuant to Section 15.1 or 15.2 will
indemnify and hold harmless the Company, each of its directors, each of
its officers who have signed any such registration statement, and each
person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Company,
or any such director, officer or controlling person may become subject
under the Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue or alleged untrue statement or any material fact
contained in any such registration statement, any preliminary prospectus
or final prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, 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 made in any such
registration statement, any preliminary prospectus or final prospectus,
or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished by such Holder expressly
for use in the preparation thereof; and will reimburse any legal or
other expenses reasonably incurred by the Company, or any such director,
officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this subparagraph
(ii) shall not apply to amounts paid to any claimant in settlement of
any suit or claim unless such payment is first approved by such Holder.
(iii) In order to provide for just and equitable
contribution in any action in which a claim for indemnification is made
pursuant to this clause (b) of Section 15.3 but is judicially determined
(by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in
such case notwithstanding the fact that this clause (b) of Section 15.3
provides for indemnification in such case, all the parties hereto shall
contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in such
proportion so that each Holder whose Warrant Shares are being registered
is responsible pro rata for the portion represented by the public
offering price received by such Holder from the sale of such Holder's
Warrant Shares, and the Company is responsible for the remaining
portion; provided, however, that (i) no Holder shall be required to
contribute any amount in excess of the public offering price received by
such Holder from the sale of such Holder's Warrant Shares and (ii) no
person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who is not guilty of such fraudulent misrepresentation. This
subsection (b)(iii) shall not be operative as to any Holder of Warrant
Shares to the extent that the Company has received indemnity under this
clause (b) of Section 15.3.
16. No Rights as Stockholder; Notices to Holders. Nothing contained in
this Agreement or in any of the Warrants shall be construed as conferring upon
the Holders or their transferee(s) the
-11-
right to vote or to receive dividends or to consent to or receive notice as
stockholders in respect of any meeting of stockholders for the election of
directors of the Company or any other matter or any rights whatsoever as
stockholders of the Company. If, however, at any time prior to the expiration of
the Warrants and prior to their exercise, any of the following events occur:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Ordinary Shares or make any distribution
(other than a cash dividend) to the holders of its shares of Ordinary
Shares: or
(b) the Company shall offer to the holders of its shares
of Ordinary Shares any additional shares of Ordinary Shares or
securities convertible into or exchangeable for shares of Ordinary
Shares or any right to subscribe to or purchase any thereof; or
(c) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger, sale,
transfer or lease 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 (i) give notice in
writing of such event to the Holders, as provided in Section 17 hereof and (ii)
if there are more than 100 Holders, cause notice of such event to be published
once in The Wall Street Journal (national edition), such giving of notice and
publication to be completed at least 20 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 or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. Failure to
publish, mail or receive such notice or any defect therein or in the publication
or mailing thereof shall not affect the validity of any action taken in
connection with such dividend, distribution or subscription rights, or such
proposed dissolution, liquidation or winding up.
17. Notices. Any notice pursuant to this Agreement to be given or made
by the registered Holder of any Warrant to the Company shall be sufficiently
given or made if sent by first-class mail or express overnight courier to:
NUR Macroprinters Ltd.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Notices or demands authorized by this Agreement to be given or made by the
Company to the registered Holder of any Warrant shall be sufficiently given or
made (except as otherwise provided in this Agreement) if sent by first-class
mail to such Holder at the address of such Holder as shown on the Warrant
Register.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to
principles of conflicts of laws.
19. Supplements and Amendments. The Company and Cruttenden may from time
to time supplement or amend this Agreement in order to cure any ambiguity or to
correct or supplement
-12-
any provision contained herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and Cruttenden may deem
necessary or desirable and which shall not be inconsistent with the provisions
of the Warrants and which shall not adversely affect the interests of the
Holders. This Agreement may also be supplemented or amended from time to time by
a writing executed by or on behalf of the Company and a majority in interest of
the Holders (assuming the exercise of all Warrants).
20. Successor. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Holders shall bind and inure to the
benefit of their respective successors and assigns hereunder. Assignments by the
Holders of their rights hereunder shall be made in accordance with Section 4
hereof.
21. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holders, any legal or equitable right, remedy or claim under this Agreement, but
this Agreement shall be for the sole and exclusive benefit of the Company any
the Holders of the Warrants and Warrant Shares.
22. Captions. The captions of the sections and subsections of this
Agreement have been reserved for convenience only and shall have no substantive
effect.
23. Counterparts. This Agreement may be executed in any number of
counterparts each of which when so executed shall be deemed to be an original;
but such counterparts together shall constitute but one and the same instrument.
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
CRUTTENDEN ▇▇▇▇ INCORPORATED
Attest:
____________________________ ____________________________
▇▇▇▇▇ ▇▇▇▇
Chairman and Chief Executive Officer
NUR MACROPRINTERS LTD.
Attest:
____________________________ ____________________________
▇▇▇▇ ▇▇▇▇▇▇▇
Chief Executive Officer
-14-
EXHIBIT A
[Form of Warrant Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. SAID
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SAID ACT
WARRANT CERTIFICATE
OF
NUR MACROPRINTERS LTD.
EXERCISABLE ON OR BEFORE FEBRUARY __, 2004
No. 1 25,000 Warrants
This Warrant Certificate certifies that the registered holder hereof or
its registered assigns, is the registered holder of Warrants expiring February
___, 2004 (the "Warrants") to purchase Ordinary Shares, NIS 1.00 nominal value
(the "Ordinary Shares"), of NUR Macroprinters Ltd., a [ ] corporation (the
"Company"). Each Warrant entitles the holder upon exercise to receive from the
Company from 10:00 a.m., Pacific time, on February ___, 2000 through and until
6:00 p.m., Pacific time, on February ___, 2004, one fully paid and nonassessable
Ordinary Share (a "Warrant Share") at the initial exercise price (the "Warrant
Price") of $4.50 payable in lawful money of the United States of America upon
surrender of this Warrant Certificate and payment of the Warrant Price at the
conditions set forth herein and in the Warrant Agreement referred to herein. The
Warrant Price and number of Warrant Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement.
No Warrant may be exercised after 6:00 p.m., Pacific Time, on February
__, 2004 (the "Expiration Date").
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this price.
This Warrant Certificate shall not be valid unless countersigned by the
Company.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring February ___, 2004 entitling the holder on
exercise to receive shares of Ordinary Shares, no par value, of the Company (the
"Ordinary Shares"), and are issued or to be issued pursuant to a Warrant
Agreement, dated as of February ___, 1999 (the "Warrant Agreement"), duly
executed and delivered by the Company, which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders (the words
"holders" or
-15-
"holder" meaning the registered holders or registered holder) of the Warrants. A
copy of the Warrant Agreement may be obtained by the holder hereof upon written
request to the Company.
The Warrants may be exercised at any time on or before February ___,
2004. The holder of Warrants evidenced by this Warrant Certificate may exercise
them by surrendering this Warrant Certificate, with the form of election to
purchase set forth hereon properly completed and executed, together with payment
of the Warrant Price at the office of the Company designated for such purpose.
In the event that upon any exercise of Warrants evidenced hereby the number of
Warrants exercised shall be less than the total number of Warrants evidenced
hereby, there shall be issued to the holder hereof or his assignee a new Warrant
Certificate evidencing the number of Warrants not exercised. No adjustment shall
be made for any dividends on any Ordinary Shares issuable upon exercise of this
Warrant.
The holders of the Warrants are entitled to certain registration rights
with respect to the Ordinary Shares purchasable upon exercise thereof. Said
registration rights are set forth in full in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Company by
the registered holder thereof in person or by legal representative or attorney
duly authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant certificate or Warrant certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company, a new Warrant certificate or Warrant
certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to other transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder of the Company.
IN WITNESS WHEREOF, NUR Macroprinters Ltd. has caused this Warrant
Certificate to be signed by its Chief Executive Officer and by its Secretary.
Dated: February ___, 1999 NUR Macroprinters Ltd.
____________________________
▇▇▇▇ ▇▇▇▇▇▇▇
Chief Executive Officer
-16-
____________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Secretary
-17-
(Form of Election to Purchase)
(To be Executed upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive ____________ shares of
Ordinary Shares and herewith tenders payment for such shares in accordance with
the terms of the Warrant Agreement. The undersigned requests that a certificate
for such shares be registered in the name of _____________________________,
whose address is ______________________________________ and that such shares be
delivered to _______________________ whose address is
________________________________________. If said number of shares is less than
all of the shares of Ordinary Shares purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
such shares be registered in the name of ________________________, whose address
is _______________________, and that such Warrant Certificate be delivered to
_______________________, whose address is
---------------------------------.
Signature:
Date:
Signature Guaranteed:
-18-
(Form of Assignment)
(To be Executed upon Assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Name and Address of Assignee Must Be Printed or Typewritten)
-----------------------------------
-----------------------------------
-----------------------------------
the within Warrants, hereby irrevocably constituting and appointing
________________ Attorney to transfer said Warrants on the books of the Company,
with full power of substitution in the premises.
Dated: ___________________ ___________________________________
Signature of Registered Holder
Note: The signature on this assignment must correspond with the name as it
appears upon the face of the within Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
Signature Guaranteed: __________________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.)
-19-