EXHIBIT 10.14
THE FOUNDERS AGREEMENT
DRAWN UP AND SIGNED IN MAGSHIMIM ON SEPTEMBER 30 1999
BETWEEN: NUR MACROPRINTERS LTD.
Public Company 52-003986-8
5 David Navon Street, Magshimim
(Hereinafter: "NUR")
OF THE ONE PART;
AND BETWEEN: 1. GERA EIRON
I.D. number 050722719
50 HASEIFAN STREET, TEL-MOND
(Hereinafter: "EIRON")
2. OGEN DIALOGIX LTD.
Private Company 51-283374-0
50 HASEIFAN STREET, TEL-MOND
(Hereinafter: "OGEN")
(Eiron and Ogen jointly and severely, hereinafter: "GERA")
OF THE SECOND PART;
WHEREAS: NUR is engaged, among other things in the production marketing
and sales on its own and/or through others of wide format digital
printers (hereinafter: the "PRINTERS");
AND WHEREAS: Eiron has the know-how and experience in the field of assembling
printers;
AND WHEREAS: The parties wish to act in cooperation in the field of assembling
the printers that NUR developed, and which are known as BlueBoard
and Fresco, in executing development works for NUR, and subject
to a future agreement, as mentioned in clause 5.3 below, the
assembly of additional printers for NUR (hereinafter: the "JOINT
ACTIVITIES"), all as detailed in this agreement;
AND WHEREAS: The parties wish to establish a company, which will be jointly
owned in equal shares, by NUR and Ogen whose joint activities
will be carried out through it (hereinafter: the "COMPANY")
and for which Ogen through Eiron will provide management
services to the company, as its general manager in a full time
position;
AND WHEREAS: The parties wish to arrange and base the terms of the engagement
between them regarding the joint operations in the Company in
writing and all as detailed in this agreement;
THEREFORE, IT IS AGREED, DECLARED AND CONDITIONED BETWEEN THE PARTIES AS
FOLLOWS:
1. PREAMBLE AND INTERPRETATION
1.1 The Appendices and the preamble to this agreement are an integral part
thereof,
1.2 The headings to the clauses in this agreement are for convenience and
guidance only and should not be used to interpret the agreement.
2. THE AGREEMENT
2.1 In effect as from October 1, 1999 (hereinafter: the "DETERMINING DATE") the
parties will start acting in cooperation in the field of the joint
activities including setting up the Company and operating it and all as
detailed in this agreement.
2.2 This agreement comes into force from the date of its signing.
3. ESTABLISHING THE COMPANY
3.1 Immediately after signing this agreement the parties will act to establish
the Company, which will be registered as a private company limited by
shares, and will function as the sole framework for operation of the
parties in the field of their joint activities. The Company's Articles are
attached hereto as APPENDIX A to this agreement (hereinafter: the
"COMPANY'S ARTICLES").
3.2 The name of the Company will be "NUR Engineering Ltd." or a name similar to
that, as approved by the Registrar of Companies. Apart from mentioning the
name, the Company will not be entitled to use in a written document any
other use of the name NUR and/or any trademark of NUR unless it receives
the prior written agreement of NUR for this.
3.3 After establishing the Company it will adopt the provisions of this
agreement and the provisions of the Assembly Agreement, the Development
Agreement, the ITS Agreement and the Management Services Agreement as
defined below. The parties will act in order to take all the decisions
required by the competent organs of the Company in order for it to adopt
the provisions of the said agreements.
4. THE COMPANY'S CAPITAL
4.1 The Company's registered capital will be NIS 37,000 divided into 37,000
ordinary registered shares of NIS 1 par value each (hereinafter: the
"SHARES"). The rights attached to the shares will be as detailed in the
Company's Articles.
4.2 At the time of registration, each of the parties, NUR and Ogen will be
allotted 100 shares of the Company in cash, in consideration for the par
value of these shares.
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5. JOINT OPERATIONS- OPERATING THE COMPANY
5.1 As of the determining date, as long as this agreement will remain in force,
the Company will engage in joint operations including:
a. The Company will carry out solely for NUR the assembly of the printers
that NUR developed known as BlueBoard, including its future development
based on the mechanical planning and that type of printer head
(hereinafter: the "BB PRINTERS"), and this in accordance with the
assembly agreement that will be signed between NUR and the Company at
the time of signature of this agreement, a copy of which is attached
hereto as APPENDIX B to this agreement (hereinafter: the "ASSEMBLY
AGREEMENT").
b. The Company will carry out for NUR the assembly of the printers that NUR
developed and which are known as Fresco (hereinafter: the "FRESCO
PRINTERS"). The assembly of the first hundred (100) Fresco printers will
be executed by the Company exclusively, in accordance with the assembly
agreement, and the assembly of additional Fresco printers, over 100 such
printers will be carried out by the Company in accordance with and
subject to the provisions of clause 5.3 below.
c. The Company will carry out development and design work for NUR,
according to job orders, which will be issued from time to time by NUR
to the Company, and this in accordance with the development agreement,
which is to be signed between NUR and between the Company at the time of
signing this agreement, a copy of which is attached hereto as APPENDIX C
to this agreement (hereinafter: the "DEVELOPMENT AGREEMENT").
d. The Company will carry out for NUR, as far as this will be under NUR's
control, assembly work of printers which will be developed in the future
by NUR (hereinafter: the "ADDITIONAL PRINTERS"), whose execution will be
given to the Company in accordance and subject to the provisions of
clause 5.3 below.
5.2 In order to execute the joint operations, the Company will engage in an
agreement with ITS Machine Development Ltd. (hereinafter: "ITS"), a copy of
which is attached hereto as APPENDIX D to this agreement (hereinafter: the
"ITS AGREEMENT"), according to which:
a. The Company will purchase from ITS the fixed assets that ITS uses in
executing the work of assembling the BlueBoard printers, in
consideration for 450,000 (four hundred and fifty thousand) US dollars.
b. The Company will purchase from ITS the inventory of BB spare parts and
printers in production which ITS has, in consideration for their value
in ITS's books (the inventory includes items and parts in process).
c. The Company will absorb ITS's employees, who, at its discretion, will be
needed in order to carry out the joint work, while maintaining
continuity regarding the period of work of these employees, and against
transfer to the
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Company from ITS of all the social benefit deposits and deposits for
severance pay for these employees.
d. The Company will receive from ITS all ITS's rights relating to a machine
for the production of tablets and a machine for packing bagels in
packets, subject to the right granted to ITS to receive 25% of the
capital gains, which will result, if at all, to the Company from these
machines, and subject to ITS's obligation to compensate the Company for
any claim and/or demand of third parties regarding these machines and/or
the rights to them.
e. ITS will do its best in order to assist the Company to engage with ITS's
suppliers and service providers who will be required by the Company in
order to carry out the joint operations.
f. ITS will transfer to the Company all the rights and obligations under
the rental agreement for the area that ITS rents in Rosh Ha'ayin and
will see to obtaining the agreement of the landlords for such transfer.
As mentioned in this clause 5.2 above and subject to the provisions of the
agreement of ITS and Eiron, it hereby undertakes to do its best to carry
out the aforesaid in sub-clauses c, e, and f above.
5.3 Should NUR request to produce the Fresco printers, whether on its own or
through others, over and above the 100 first printers, (hereinafter: the
"ADDITIONAL FRESCO PRINTERS") and/or should NUR request to produce the
additional printers, NUR will contact the Company, and the Company will
give NUR a proposal to execute the assembly work of the additional Fresco
printers and/or the additional printers, whichever relevant (together,
hereinafter: the "ADDITIONAL ASSEMBLY WORK").
Should NUR have a preferable alternative to carry out the additional
assembly work, compared to the Company's offer, NUR will give the Company
the main details of the alternative and give the Company an opportunity to
offer NUR, within 14 days, from the date on which NUR informed the Company
that it has such a preferable alternative, an additional proposal to carry
out the additional assembly work on the same conditions of the preferable
alternative or with preferable conditions (hereinafter: the "ADDITIONAL
PROPOSAL"). NUR will be entitled to prefer the alternative for carrying out
the additional assembly work not through the Company, only if these will
include significantly better conditions than those in the Company's
proposal (or the additional proposal if submitted by the Company). It is
hereby clarified that only an alternative, which includes a price lower by
10% or more than the price set forth in the Company's proposal (or the
additional proposal, if such is submitted by the Company), while
maintaining a similar level of execution and quality (price/performance)
will be considered a preferable alternative.
Should NUR decide to give execution of the additional assembly work to the
Company, the Company and NUR will negotiate in good faith and in the
acceptable manner in order to make adjustments and additions to the
assembly
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agreement in such a way that it will apply to executing the additional
production work.
5.4 The Company will absorb NUR's employees, which at its discretion and that
of NUR, will be required in order to carry out the joint operations while
maintaining continuity of the period of the work of such employees and
against transfer to the Company from NUR of the total social benefits
deposits and deposits for severance pay for these employees.
6. THE COMPANY'S MANAGEMENT
6.1 The Company's General Manager will be chosen by the Company's Board of
Directors only among candidates agreed to by the two parties to this
agreement. The parties hereby agree that from the date of establishing the
Company Ogen through Eiron, will provide management services by filling the
position of General Manager of the Company.
Eiron hereby undertakes to put at the disposal of the Company, management
services by filling the function of the Company's General Manager and
investing the number of the hours equal to a full time position, and devote
all his time, energy and efforts to fulfill the function.
6.2 A condition for providing management services will be as detailed in the
management agreement attached hereto as APPENDIX E, to this agreement
(above and blow: the "MANAGEMENT AGREEMENT").
7. THE COMPANY'S BOARD OF DIRECTORS
7.1 Five directors will serve on the Company's Board of Directors in such a way
that each shareholder holding 20% of the issued and paid up share capital
of the Company will be entitled to appoint one director for the Company. In
order to determine the right to appoint a director, the shareholder will
not be entitled to add the number of shares held by it to the shares held
by another shareholder, apart from the shares held by a company controlled
by it and/or a company which controls it and/or a company, which is
controlled by one that controls it (together, hereinafter: "A RELATED
COMPANY"). In this agreement, "CONTROL" - as defined in clause 1 of the
Securities Law - 1968.
7.2 Every party will be entitled to object for reasonable business reasons, to
the identity of a director that the other party appointed, including an
alternate director or an acting director for that director (in this clause
below, together: "DIRECTOR"), provided that it will not be entitled to
object to the appointment of a director employed in a full time capacity by
one of the parties and/or a related party to it and/or one who holds at
least 10% of the share capital of one of the parties and/or a related
company to it.
7.3 The position of Chairman of the Board of Directors will be a director
appointed by NUR. To avoid doubt it is hereby clarified that in the event
of a parity of votes, the Chairman of the Board will not have a casting
vote.
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7.4 As long as Ogen will be entitled to appoint two directors, the quorum for
holding a meeting of the Board of Directors will be at least two directors,
on condition that at least one director appointed by Ogen and at least one
director appointed by NUR are present.
In every case where Ogen will not be entitled to appoint two directors, the
quorum for holding a meeting of the Board of Directors will be a majority
of the directors.
7.5 Decisions of the Board of Directors will be taken with a simple majority of
votes of directors present and participating, provided that resolutions for
the following matters will be passed with a majority of at least 75% of the
votes of the directors present and voting:
a. Distribution of a dividends to the Company's shareholders;
b. Approval of allotment of securities of the Company;
c. A decision for raising finance for the Company's operations from its
shareholders and/or with their guarantee in addition and over and above
the financing, which the parties must put at the disposal of the Company
as detailed in clauses 8.1 and 8.2 below;
d. Expanding or changing the field of operation of the Company over and
above current operations;
e. Establishing subsidiaries and/or related companies and/or partnerships
and/or the transfer of the Company's operations to one of them;
f. Transactions where an officer in the Company has a personal interest,
provided that regarding such transactions that are an "exceptional
transaction", the approval of the general meeting of the shareholders of
the Company is required, as long it is required by Law.
It is agreed by the parties that implementation of the assembly
agreement, the development agreement and the management agreement will
not be considered an exceptional transaction and the approval of the
transaction between the Company and NUR in accordance with these
agreements, will require the approval of the Company's Board of
Directors only.
7.6 The other provision regarding appointment of directors are as detailed in
the Company's Articles.
8. FINANCING AND FINANCIAL MANAGEMENT
8.1 Each of the parties undertake to put at the disposal of the Company, soon
after its establishment, a shareholders' loan in NIS equal to 175,000 (one
hundred and seventy five thousand) US dollars at the last representative
rate of exchange know on the date of providing the loan (hereinafter: the
"SHAREHOLDERS' Loan"). The shareholders' loan will be linked to the US
dollar and bear annual interest at 3%. The shareholders' loan will be
repaid out of the Company's profit as will exist from time to time in such
a way that it will not harm the management and continued operations of the
Company.
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8.2 In addition to the aforesaid in clause 8.1 above, NUR undertakes to put at
the disposal of the Company, soon after its establishment, an amount in NIS
equal to 100,000 (one hundred thousand) US dollars at the last
representative rate of exchange known of the dollar at the time of
providing the loan (hereinafter: "NUR'S LOAN"). NUR's loan will not be
linked and will not bear interest and will be repayable at the end of 20
(twenty) years from the date of providing it or from the date of taking a
decision to liquidate the Company, whichever earlier.
8.3 It is agreed that additional financing required by the Company, if so
required, will be arranged through bank credit, without collateral being
provided by the Company's shareholders. Should the Company not succeed in
raising such bank credit, provided that such financing will not be required
due to a violation of an obligation by any of the parties to the Company,
the parties will provide, subject to receiving approval of the Company's
Board of Directors as mentioned in clause 7.5 above, collateral to secure
bank credit for the Company, or they will put at the disposal of the
Company actual financing in the amount required, and this each of them in
accordance with its proportional share of the issued and paid up share
capital of the Company, not later than 14 days from the date of receiving
notice from the Company.
Should within 14 days of receiving notice, one of the shareholders not
provide its proportional share of financing to the Company, the other
shareholder who provided its proportional share, will be entitled, at its
choice, that the financing put at the disposal by it will be credited as a
shareholders' loan and will have preference over all the other
shareholders' loans or that it will be invested as share capital in the
Company on the basis of "fair market value" of the Company as determined by
an appraiser, who will be agreed by the parties, and in the absence of an
agreement, will be appointed by the head of the Israeli Bar.
8.4 Signatory rights in the Company will be determined by the Company's Board
of Directors.
8.5 The Company will open and manage a bank account, where the signatories in
it and the signatory rights in it will be as determined by the Company's
Board of Directors.
8.6 The auditor of the Company will be NUR's auditor, provided that it will be
one of the accounting offices know as the "Big Five". Should this not be
provided the Company's auditor will be determent by agreement between the
parties. The first auditor of the Company will be Kost Forer & Gabbay,
Certified Public Accountants.
8.7 The Company will provide NUR from time to time with reports as required by
NUR in order for it to comply with the obligations of reporting which apply
to it by Law, including due to the Company being a public company whose
shares are listed for trading, and Gera undertakes not to object to the
transfer of such information.
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9. GENERAL MEETINGS
9.1 Two members present themselves or by proxy, who hold or represent 70% of
the voting rights in the Company, will be a quorum at a general meeting of
shareholders of the Company.
9.2 A resolution put to the vote at a general meeting will be decided by a
majority vote, provided that the resolutions for the following matters will
be decided by a majority of at least 75% of the votes.
a. An expansion and/or change in the field of operations of the Company
over and above the operations;
b. Distribution of a dividend to the Company's shareholders;
c. Voluntary liquidation of the Company;
d. Increase of the registered capital of the Company;
e. Change of the Company's documents of incorporation.
9.3 The other provisions relating general meetings of shareholders' of the
Company are as detailed in the Company's Articles.
10. INTELLECTUAL PROPERTY
It is agreed that all rights existing and future, in the BB printers, in
the Fresco printers and every development by the Company, including all the
intellectual rights are and will belong solely to NUR, unless agreed
otherwise in writing between the parties. NUR will give the Company a
non-exclusive license, which cannot be transferred to use such rights, only
as far as this is required in order to execute the joint operations.
11. FIRST RIGHT OF A REFUSAL IN TRANSFERRING THE COMPANY'S SHARES
11.1 All transfers of the Company's shares will be subject to a first right of
refusal as detailed below:
a. A shareholder, who wishes to transfer its shares in the Company, fully
or partly, to a third party (hereinafter: the "PROPOSER" and the
"OFFERED SHARES", respectively), must offer them first to the other
shareholders in the Company at identical terms to the terms at which it
wishes to sell the offered shares. The offer will be made by giving
written notice to the other shareholders, with a copy to the Company, in
which details of the number of shares offered for sale, the price
requested and the other conditions at which the shares are offered for
sale (hereinafter: the "SALES NOTICE").
b. Within 15 days of the date of delivering the sales notice, every
shareholder will be entitled to inform the proposer by notice in
writing, with a copy to the Company of its wish to purchase the offered
shares, fully or partly, at a price and conditions stipulated in the
sales notice (hereinafter: the "PURCHASE NOTICE"), provided that the
number of shares stated in the purchase notice will not be less than its
proportional share in the offered shares.
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Regarding clause 11.1 above, the proportional share of a shareholder in
the offered shares means the ratio between the number of shares it owns
and the total number of shares held at that time by the other
shareholders in the Company (apart from the Offeror).
c. If by the end of the date mentioned in sub-clause b above purchase
notices will be received for a total number of shares equal to the
number of shares offered, the shareholder who gave such purchase notices
must purchase the number of shares stated in their purchase notices.
d. If by the end of the period mentioned in sub-clause b above, purchase
notices will be received for a total number of shares, which are greater
than the number of shares offered, each party that gave a purchase
notice must purchase the offered shares in the number to be determined
in accordance with the ratio between its proportion of the share capital
in the Company and the total share capital of the Company of each of the
shareholders who gave purchase notices (but in every case not more than
the number stipulated in the purchase notice). Any balance created as a
result of such a division, will be distributed between the shareholders
whose purchase notices were not fully answered in accordance with this
division, until distribution of all these offered shares.
e. If by the end of the period mentioned in sub-clause b above, purchase
notices are received for a total number of shares, which are lest than
the number of shares offered, the proposer is free, within 30 (thirty)
days, to sell all the shares offered to the third party and the
conditions which will not be better to the purchaser of shares in
accordance with the terms stipulated in the sales notice, subject to
obtaining approval of the Company's Board of Directors for the transfer
of the offered shares. It is hereby clarified that in every case in
which the offered shares will not be sold within 30 days as mentioned,
their sale will again be subject to the first right of refusal as
mentioned in this clause 11.1 above.
11.2 Not withstanding the provisions of clause 11.1 above, the first right of
refusal will not apply to the transfer of shares in the Company to a
related Company provided that prior to such transfer of shares the
receiving corporation took on itself in writing all the provision of this
agreement as if it was a party to it from the start.
11.3 The provisions of this clause regarding the first right of refusal will be
based in the Company's Articles.
12. ALLOTMENT OF ADDITIONAL SHARES
The allotment of additional shares in the Company, over and above those
mentioned in clause 4.2 above, a resolution for which was passed by the
Company's Board of Directors, will first be offered to the existing
shareholder in the Company, each one according to its share in the issued
and paid up share capital at that time. Should any of the shareholders not
wish or not be able to purchase the additional shares from the Company
whether fully or partly, the
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other shareholders may, according to their proportional share in the issued
and paid-up share capital of the Company held by them at that time,
purchase those shares under conditions that are identical to those at which
they purchased the other additional shares. Only if all the shares offered
were not purchased by the existing shareholders in the Company, the Company
may offer the shares to a third parties.
13. TAG ALONG RIGHT
Should any of the shareholders in the Company, request to sell the shares
to a third party, and the other shareholders, do not realize their first
right of refusal as mentioned in clause 11 above, the other shareholders
may obligate the selling shareholders to have them tag along in such a way
that the share of each party in the sold shares will be pro rata to his
proportional shares in the share capital in the Company, held by the
shareholders, who wish to participate in the sale.
14. PLEDGE ON SHARES
14.1 Each of the parties will be entitled to pledge its shares in the Company,
fully or partly, to a bank in order to secure credit provided to that party
by such bank.
14.2 A party who will be interested to pledge his shares in the Company fully or
partly, will receive the prior written agreement of the bank, that the
exercise of the pledge by the bank will be subject to the provisions of
this agreement regarding the first right of refusal of the other parties.
15. OGEN
15.1 Eiron hereby declares and undertakes that he holds total ownership and
control in Ogen apart from one share held for him in trust by his wife Edna
Gorody Eiron I.D. No. 51019115.
15.2 Every transfer of shares in Ogen or allotment of shares in Ogen, apart from
an allotment to Eiron, will be subject to the first right of refusal in
such a way that should Eiron request a transfer and/or sell his shares in
Ogen to a third party, he will be obligated to offer them to first under
the same conditions to NUR, and if Ogen requests to allot additional shares
apart from to Eiron it will be obligated to offer the shares first under
the same conditions to NUR. The provisions of clause 11.1 above will apply
to such first right of refusal, with the necessary changes.
Such first right of refusal mentioned in this clause above will not apply
to the transfer of shares in Ogen to another corporation fully owned and
controlled by Eiron or a member of Eiron's family, provided that prior to
the transfer of such shares the transferee company or the member of the
family, whichever relevant, took on itself, in writing all the provisions
of this agreement as if it was a party to it from the start.
For the purpose of this clause 15.2 a "FAMILY MEMBER" - means spouse or a
descendant.
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15.3 The provisions of this clause 15 regarding the first right of refusal will
be included in Ogen's Articles.
15.4 Without derogating from any other relief in every case where Eiron will
discontinue being the controlling shareholder in Ogen, for any reason
whatsoever, NUR will be entitled to realize at NUR's option, as defined in
clause 16 below.
16. THE OPTION FOR PURCHASING THE COMPANY'S SHARES
16.1 NUR is hereby given an option (hereinafter: "NUR'S OPTION"), which on its
execution by NUR, Ogen will be required to sell to NUR all the Company's
shares owned by Ogen at that time (hereinafter: the "GERA SHARES") in
accordance with and at the conditions and at the times detailed below:
a. NUR's option can be realized by NUR at any time, as of from the date on
which, for any reason, whatsoever (1) Eiron discontinued for a period of
3 (three) months or more from fulfilling his function as General Manager
of the Company or any other position in it, to the extent of the number
of hours of at least 80% of the number of hours of a full time position,
and this whether as an employer in the Company or whether by providing
services to the Company and/or (2) Eiron will discontinue being a
controlling shareholder in Ogen for any reason whatsoever and/or (3)
Eiron will request a transfer his in shares in Ogen or Ogen will request
to transfer its shares in the Company by transfer subject to the first
right of refusal in favor of the NUR (in this clause 16, here below
together: "THE TERMS FOR EXERCISING THE OPTION").
b. NUR will entitled to exercise NUR's option with by a written agreement
delivered to Ogen (hereinafter: "NUR'S NOTICE OF EXERCISING").
c. The exercise price paid by NUR to Ogen for the Gera shares will be equal
to 120,000 (one hundred and twenty thousand) ordinary shares of NIS 1
par value each of NUR, which NUR will allot to Ogen and which will give
the rights to register on the account of NUR as detailed in APPENDIX F
to this agreement (hereinafter: the "OPTION SHARES"), plus a cash
payment equal to 50% of the value of the net fixed assets of the Company
(the cost of the fixed assets in the books less depreciation and less
liabilities for those assets), as existing at the time of the exercise
notice of NUR (together hereinafter: "NUR'S EXERCISE PRICE").
NUR's exercise price as detailed above is calculated on the assumption
that the Gera shares will be at the time of NUR's exercise notice 50% of
the issued and paid up share capital of the Company. Should at the time
of NUR's exercise notice the rate of Gera's shares in the issued and
paid up share capital of the Company be more or less than 50%, the
number of shares in the option, the amount paid as a result of the value
of the net fixed assets of the Company, will be adjusted proportionally
provided that the number of option shares will not be adjusted in the
event that the rate of the shares is
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less than 50% but is 25% or more of the issued and paid up share capital
of the Company.
The number of share options will be adjusted in every case to changes in
the composition of NUR's share capital including the distribution of
bonus shares, the split of the share capital to shares of a par value of
less than NIS 1 or the consolidation of the share capital to shares of
par value greater than NIS 1.
To avoid doubt it is hereby clarified that the NUR's exercise price will
be determined only for option purposes of NUR and the parties hereby
confirm that the parties will not be use it for any other purpose.
d. Within 45 days from NUR giving notice of exercising NUR will pay Ogen
the NUR exercised price and against NUR's payment Ogen undertakes to
deliver to NUR share transfer deeds regularly signed for all the Gera
shares and to transfer the Gera shares free of any pledge, mortgage,
attachment and any other right in favor of a third party.
e. It is hereby clarified that NUR's option is for the purpose of acquiring
all the Gera shares and NUR will not be entitled to exercise the NUR
option in order to acquire only part of the Gera shares.
16.2 Ogen is hereby given an option (hereinafter: the "GERA option"), which
with its exercise by Ogen NUR will be obligated to purchase from Ogen
all the Gera shares in accordance and at the times detailed below:
a. The Gera option can be exercised by Ogen at any time as of the date on
which one of the option exercised conditions will exist as defined in
clause 16.1 above.
b. Ogen will be entitled to exercise the Gera option, by written notice
delivered to NUR (hereinafter: the "GERA EXERCISE NOTICE"). The Gera
exercise notice will include the price required by Ogen for the Gera
shares (hereinafter: the "PROPOSED EXERCISE PRICE").
c. Should within 14 days from the date of delivery of the Gera exercise
notice to NUR, NUR not deliver to Ogen NUR's conter notice as mentioned
in sub-clause d below, NUR will be obligated to purchase from Ogen,
within 30 days from the date of delivering Gera exercise notice, in
consideration for the proposed exercise price. In consideration for the
payment by NUR, Ogen undertakes to deliver to NUR share transfer deeds
regularly signed for all Gera shares and to transfer the Gera shares
being free of any pledge, mortgage, attachment and any other right in
favor of a third party.
d. Within 14 days from the date of delivery of the Gera exercise notice to
NUR, NUR will be entitled, instead of purchasing the Gera shares in
accordance with Gera's exercise notice, deliver to Ogen a written
notice, (hereinafter: "NUR'S COUNTER NOTICE"), in which the price per
share will be stated, at which NUR will be prepared to sell to Ogen all
the Company's shares owned
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by NUR at that time (hereinafter: the "NUR SHARES"), provided that this
price will express the value of the Company less than the value of the
Company from which the proposed exercise price emanates (hereinafter:
the "PROPOSED PRICE PER SHARE").
Within 14 days from the date of receiving NUR's counter notice, if such
notice is given, Ogen will be entitled instead of purchasing the NUR's
shares at the proposed price per share to deliver to NUR a written
notice of its choice to sell to NUR the Gera shares at the proposed
price per share (hereinafter: "NUR'S COUNTER NOTICE").
Should Ogen deliver to NUR the Gera counter notice, NUR will purchase
the Gera shares, in consideration for the proposed price per share, and
against NUR's payment, Ogen undertakes to deliver to NUR share transfer
deeds regularly signed for all the Gera shares and to transfer the Gera
shares free of any pledge, mortgage, attachment and/or any other right
in favor of a third party.
It is hereby clarified that in the event that Ogen does not deliver to
NUR a Gera counter notice this will be considered as if Ogen chose to
purchase NUR's shares. Should Eiron choose to purchase NUR's shares it
will be obligated to purchase from NUR, within 30 days from the date of
delivery of NUR's counter notice, NUR's shares in consideration for the
proposed price per share. Against payment of Ogen, NUR undertakes to
deliver to Ogen shares transfer deeds, regularly signed for all the
NUR's shares and to transfer the NUR shares free of any pledge,
mortgage, attachment and any other right in favor of a third party.
e. It is hereby clarified that the Gera option can be exercised with regard
to all Gera shares only and cannot be exercised in order to sell part of
Gera shares.
16.3 It is agreed that as of the date on which the parties informed of their
wish to exercise the option given it by clauses 16.1 or 16.2 above,
whichever relevant, the other party will not be entitled to exercise the
option given it under these clauses.
17. ARBITRATION
17.1 Any conflict or dispute, which arises between the parties in this
agreement, and every thing connected with its existence, interpretation,
implementation, or cancellation of this agreement and/or any of its
provisions will be brought for arbitration, which will take place with an
arbitrator to be determined in agreement between the parties, and in the
lack of an agreement of the identity of the arbitrator, as determined by
the head of the Israeli Bar (hereinafter: the "ARBITRATOR") and this within
15 (fifteen) days from the day that a party to the agreement so requested.
17.2 The arbitrator will be entitled to give any interim decision and temporary
orders. The ruling and decisions of the arbitrator will be final and
binding. The arbitrator will not be subject to the Laws of Procedure and to
the Laws of
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evidence but will be subject to the provisions of the Substantive Law and
must explain his ruling.
17.3 This clause will be an arbitration in agreement between the parties and
signature on this agreement will also be signature on an arbitration
agreement.
18. MISCELLANEOUS
18.1 The terms of this agreement fully include what has been conditioned and
agreed between the parties regarding the joint operations of the Company,
regarding those matters included in it, and they supercede , unless stated
otherwise in this agreement, any other engagement, agreement, presentation
and undertaking prior to signing this agreement which were prepared, either
in writing or verbally.
18.2 Any change and/or cancellation of any provisions in this agreement will be
carried out only in a written document, which will be signed by the two
parties.
18.3 In any case where one of the parties does not use a right given it by this
agreement or by any Law, this will not be considered as a waiver on its
part of that right and it will be entitled to reuse these rights, and claim
of concession or waiver will not be valid regarding the violating party.
18.4 Any notice sent by one of the parties to the other by registered mail will
be considered as if received by the other party within 72 hours from the
date of its dispatch.
18.5 The addresses of the parties for the purpose of this agreement are as
detailed in the preamble to this agreement.
IN WITNESS WHEREOF THE PARTIES HEREBY SIGN:
(-) (-)
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NUR MACROPRINTERS LTD. OGEN DIALOGI X LTD.
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GERA EIRON