EXHIBIT 4.8
WARRANT
THIS WARRANT AND THE ORDINARY SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT (the
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (the "SECURITIES ACT") OR QUALIFIED UNDER ANY STATE OR FOREIGN
SECURITIES LAW, AND THE WARRANT MAY NOT BE EXERCISED AND THE WARRANT AND THE
ORDINARY SHARES ISSUABLE UPON EXERCISE MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
ASSIGNED OR HYPOTHECATED, UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT COVERING THIS WARRANT AND/OR SUCH SECURITIES, OR THE
HOLDER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THE WARRANT AND/OR SUCH
SECURITIES SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, TRANSFER, PLEDGE,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS
UNDER APPLICABLE LAW.
to purchase
Ordinary Shares
of
NUR MACROPRINTERS LTD.
at a price of $4.50 per share
VOID AFTER 17:00 p.m. (prevailing Tel Aviv time)
On the Expiration Date (as hereinafter defined)
in favor of
The Investment Corp. of United Mizrahi Bank Ltd.
No. W-
NUR MACROPRINTERS LTD., an Israeli company with its principal offices at 12 Abba
Hilel Silver Street, Lod, Israel (the "Company"), hereby grants to The
Investment Corp. of United Mizrahi Bank Ltd. (the "Holder"), the right to
purchase, subject to the terms and conditions hereof, up to Six Hundred and
Twelve Thousand, Five Hundred (612,500) of the Company's Ordinary Shares, par
value NIS 1.0 per share ("Ordinary Shares"), exercisable at any time from time
to time, on or after the date hereof (the "Effective Date"), and until the
fourth anniversary of such date (the "Expiration Date").
-2-
(Hereinafter: (i) the Ordinary Shares purchasable hereunder or any other
securities which may be issued by the Company in substitution therefor, are
referred to as the "Warrant Shares"; (ii) the price of Four United States
Dollars and Fifty Cents ($4.50) payable hereunder for each of the Warrant
Shares, as adjusted in the manner set forth hereinafter, is referred to as the
"Exercise Price" and (iii) this Warrant and all warrants hereafter issued in
exchange or substitution for this Warrant are referred to as the "Warrants". The
Exercise Price and the number of Warrant Shares are subject to adjustment as
hereinafter provided.)
1. Warrant Period; Exercise of Warrant
1.1 (a) This Warrant may be exercised in whole at any time, or in part from time
to time, beginning on the date hereof until the Expiration Date (the "Warrant
Period"), by the surrender of this Warrant (with a duly executed exercise form
in the form attached at the end hereof as Exhibit A), along with the Exercise
Certificate or the Exercise Opinion (each as defined in Section 1.1(b) below),
at the principal office of the Company, set forth above, together with proper
payment of the Exercise Price multiplied by the number of Warrant Shares for
which the Warrant is being exercised. Payment for Warrant Shares shall be made
by certified or official bank check or checks, payable to the order of the
Company or by wire transfer to an account to be designated in writing by the
Company. Payments shall be made in United States dollars.
(b) This Warrant may not be exercised unless the Holder delivers to the
Company (a) written certification that it is not a "U.S. person" (as defined in
Regulation S under the Securities Act) and the Warrant is not being exercised on
behalf of a U.S person (an "Exercise Certificate") or (b) a written opinion of
counsel to the effect that the Warrant and the Warrant Shares have been
registered under the Securities Act and applicable state securities laws or an
exemption from such registration is available, which counsel and opinion shall
be reasonable satisfactory to the Company ("Exercise Opinion").
1.2 If this Warrant should be exercised in part, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a new Warrant
evidencing the rights of the Holder to purchase the remainder of the Ordinary
Shares purchasable hereunder. The Company shall pay any and all expenses, taxes
and other charges that may be payable in connection with the issuance of the
Warrant Shares and the preparation and delivery of share certificates pursuant
to this Section 1 in the name of the Holder (including without limitation the
applicable stamp duty), and to the extent required, the execution and delivery
of a new Warrant, provided, however, that the Company shall only be required to
pay taxes which are due as a direct result of the issuance of the Ordinary
Shares or other securities, properties or rights underlying such Warrants (such
as the applicable stamp duty), and will not be required to pay any tax which may
be (i) due as a result of the specific identity of the Holder or (ii) payable in
respect of any transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder and the Company shall not
be required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
1.3 No fractions of Ordinary Shares shall be issued in connection with the
exercise of this Warrant, and the number of Ordinary Shares issued shall be
rounded down to the nearest whole number.
-3-
1.4 Upon the issuance of Ordinary Shares resulting from the exercise in whole or
in part of this Warrant, the Company shall deliver to the Holder the following
(i) a true and correct copy of duly completed notice of the issuance of the
issued shares to the Israeli Registrar of Companies in the form and substance
acceptable for immediate filing with the Israeli Registrar of Companies (ii) an
irrevocable letter of instructions to the Company's transfer agent to issue as
soon as is reasonably practicable to the Holder share certificates reflecting
the Warrant Shares exercised thereby, together with any and all other documents
required for the issuance of such certificates by the transfer agent.
1.5 Secretary' s Confirmation Within 30 days from the issuance of the Ordinary
Shares the Company Secretary shall provide the Holder with confirmation that the
Holder has been registered in the Company's Shareholder Register in accordance
with the Companies Law, 1999, as a member of the Company holding the Warrant
Shares and that the applicable stamp duty has been paid by the Company.
2. Reservation of Shares
The Company covenants that: (i) at all times during the Warrant Period it shall
have in reserve, and will keep available solely for issuance or delivery upon
exercise of the Warrant, such number of Ordinary shares as shall be issuable
upon the exercise thereof, and (ii) upon exercise of the Warrant and payment of
the Exercise Price therefor, the Warrant Shares issuable upon such exercise will
be validly issued, fully paid, nonassessable, free and clear from any lien,
encumbrance, pledge or any other third party right and not subject to any
preemptive rights.
3. Adjustments to Exercise Price and Number of Securities.
3.1 Subdivision and Combination. In case the Company shall at any time subdivide
or combine the outstanding Ordinary Shares, the Exercise Price shall forthwith
be proportionately decreased in the case of subdivision or increased in the case
of combination.
3.2 Stock Dividends and Distributions. In case the Company shall pay a dividend
on, or make a distribution of, Ordinary Shares or of the Company's capital stock
convertible into Ordinary Shares, the Exercise Price shall forthwith be
proportionately decreased. An adjustment made pursuant to this Section 3.2 shall
be made as of the record date for the subject stock dividend or distribution.
3.3 Adjustment in Number of Securities. Upon each adjustment of the Exercise
Price pursuant to the provisions of this Section 3, the number of Ordinary
Shares issuable upon the exercise of each Warrant shall be adjusted to the
nearest full amount by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Ordinary Shares
issuable upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
3.4 Definition of Ordinary Shares. For the purpose of this Agreement, the term
"Ordinary Shares" shall mean (i) the class of stock designated as Ordinary
Shares in the Articles of Association of the Company as may be amended as of the
date hereof, or (ii) any other class of
-4-
stock resulting from successive changes or reclassifications of such Ordinary
Shares consisting solely of changes in nominal value, or from nominal value to
no nominal value, or from no nominal value to nominal value.
3.5 No Adjustment of Exercise Price in Certain Cases. No adjustment of the
Exercise Price shall be made if the amount of said adjustment shall be less than
2 cents ($.02) per Ordinary Share, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least 2 cents ($.02) per Ordinary Share.
3.6 Merger or Consolidation. In case of any consolidation of the Company with or
merger of the Company with, or merger of the Company into, (other than a merger
which does not result in any reclassification or change of the outstanding
Ordinary Shares), the Company shall cause the corporation formed by such
consolidation or merger to execute and deliver to the Holder a supplemental
warrant agreeement providing that the Holder of the Warrant then outstanding or
to be outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
consilidation or merger, by a holder of the number of Ordinary Shares of the
Company for which such Warrant might have been exercised immediately prior ro
such consolidation, merger, sale or transfer. Such supplemental warrant
agreement shall provide for adjustments which shall be identical to the
adjustments provided in Section 3. The above provision of this Subsection shall
similarly apply to successive consolidations or mergers.
4. Notices to Warrant Holders. Nothing contained in this Agreement shall be
construed as conferring upon the Holder the right to vote or to consent or to
receive notice as a stockholder in respect of any meetings of stockholders for
the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the Expiration Date, any of the following events shall occur:
(a) the Company shall take a record of the holders of its Ordinary
Shares for the purpose of entitling them to receive a dividend or distribution
payable otherwise than in cash, or a cash dividend or distribution payable
otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Ordinary Shares
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than
in connection with a consolidation or merger) or a sale of all or substantially
all of its property, assets and business as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give to the Holder
written notice of such event at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale.
5. Non-Transferability
-5-
(a) The Holder covenants and agrees that the Warrants are being
acquired as an investment and not with a view to the distribution thereof. The
Holder shall not sell, transfer, assign, encumber, pledge or otherwise dispose
or undertake to dispose of ("Sell") the Warrants until the first anniversary of
the Effective Date. Thereafter, the Holder may, subject to applicable securities
laws, Sell, all or any portion of the Warrants, provided that the Holder may
only Sell the Warrants on two occasions, to no more than five (5) transferees on
each occasion, provided further that on the second such occasion the Holder
shall reimburse the Company with any and all direct costs incurred by the
Company connected with such sale, transfer or assignment including any
reasonable registration costs.
(b) Unless registered, the Warrant Shares issued upon exercise of the
Warrants shall be subject to a stop transfer order and the certificate or
certificates evidencing such Warrant Shares shall bear legend substantially
similar to the following:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, PURSUANT
TO A REGISTRATION STATEMENT. ACCORDINGLY, SUCH SHARES MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER
SUCH ACT, OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT."
6. Loss, etc. of Warrant
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, and upon reimbursement of the
Company's reasonable direct expenses, the Company shall execute and deliver to
the Holder a new Warrant of like date, tenor and denomination.
7. Registration Rights
Holders of the Ordinary Shares shall be entitled to all of the rights and
privileges relating to registration rights afforded to the Holders under that
certain Share and Warrant Purchase Agreement dated January __, 2002 (including
the Registration Rights Agreement attached thereto) incorporated herein by
reference and expressly made a part hereof.
8. Headings
The headings of this Warrant have been inserted as a matter of convenience and
shall not affect the construction hereof.
9. Notices.
Unless otherwise provided, any notice required or permitted under this Warrant
shall be given in writing and shall be deemed effectively given upon personal
delivery to the party to be notified or seven (7) days after deposit with the
Post Authority, for dispatch by registered or certified mail, postage prepaid
and addressed to the Holder at the address set forth in the Company's books and
to the Company at the address of its principal offices set forth above, or when
given
-6-
by telecopier or other form of rapid written communication, provided that
confirming copies are sent by such airmail.
10. Governing Law
This Warrant shall be governed by and construed and enforced in accordance with
the laws of the State of Israel (regardless of the laws that might otherwise
govern under applicable Israel principles of conflicts of law). The Parties
hereto shall submit to the exclusive jurisdiction of the competent Courts of
Tel-Aviv any dispute or matter arising out of or connected with this Warrant.
Anything to the contrary notwithstanding, the provisions of this Section 10
shall not apply to the Registration Rights schedule, which shall be subject to
the provisions thereof.
11. Entire Agreement; Amendment and Waiver
This Warrant and the schedule hereto constitute the full and entire
understanding and agreement between the parties with regard to the subject
matters hereof and thereof. Any term of this Warrant may be amended and the
observance of any term hereof may be waived (either prospectively or
retroactively and either generally or in a particular instance) only with the
written consent of both the Holder and the Company.
IN WITNESS WHEREOF, the Company has caused this Ordinary Share Purchase Warrant
to be executed as of the date first written above.
NUR MACROPRINTERS LTD.
By: ____________________________________
/title
Agreed and Accepted:
The Investment Corp. of United Mizrahi Bank Ltd.
By: _____________________________________
/title
194457/2
-7-
EXHIBIT A
WARRANT EXERCISE FORM
Date:____________________
To: Nur Macroprinters Ltd.
Re: Exercise of Warrant
The undersigned hereby irrevocably elects to exercise the attached Warrant No.
___ to the extent of ___________________ Ordinary Shares of Nur Macroprinters
Ltd. at $4.50 per Ordinary Share. Payment to the Company of the total purchase
price for such shares has been made simultaneously with the delivery of this
exercise of warrant.
By: ___________________