Exhibit 4.16
PRIVATE &
CONFIDENTIAL
BETWEEN
TAI XXX XXXXX
as Vendor
AND
ASIASOFT GLOBAL PTE. LTD.
as Purchaser
AGREEMENT
RELATING TO THE SALE AND PURCHASE OF 4,900 ORDINARY
SHARES IN THE CAPITAL OF ASIASOFT
SOLUTIONS (HK) LIMITED
CONTENTS
i
THIS AGREEMENT is entered into this
12 day of June 2007
BETWEEN:
| 1. |
Tai Xxx Xxxxx (Identification number: X000000(0)) of Flat 26A, Tower 2, Wing Fai
Centre, Fanling, New Territories, Hong Kong, China, (facsimile: 2965 6722) (the
‘Vendor’); and |
| 2. |
Asiasoft Global Pte. Ltd. (Company Registration Number: 200424416M), a
company incorporated in Singapore and having its address at 0 Xxxxxxx Xxxxxxxxx
#00-00 Xxxxxx Xxxxx Xxx Xxxxxxxxx 000000 (facsimile: x00 0000 0000) (the
‘Purchaser’). |
WHEREAS:
| (A) |
Asiasoft Solutions (HK) Limited (Company Registration Number: 1003170) (the
‘Company’) is a company incorporated in Hong Kong and having
its address at Unit B, 13/F., Empire Land Xxxxxxxxxx Xxxxxx, 00-00 Xxxxxxxx
Xxxx, Xxx Xxxx, Xxxx Xxxx and has at the date of this Agreement 10,000 issued
and paid up ordinary shares of HK$1.00 each. Further particulars of the Company
are contained in Schedule 1. |
| (B) |
At the date of this Agreement, the Vendor is the registered owner of 4,900
shares in the capital of the Company (equivalent to 49% of the shares of the
Company). |
| (C) |
At the date of this Agreement, the Vendor is the registered owner of one share
in the capital of ACME (as defined below) which is held on trust on behalf of
the Company pursuant to the Declaration of Trust made by the Vendor dated 1
November 2006 and the Company holds the beneficial title to that share. |
| (D) |
The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the
Sale Shares (as defined below) for the consideration, and on the terms and
subject to the conditions, contained in this Agreement. |
NOW IT IS AGREED AS FOLLOWS:
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In
this Agreement and the Schedules, unless the context otherwise requires: |
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‘ACME’
means ACME Solutions Limited (Company Registration No.: 756270), a company incorporated in
Hong Kong and having its registered address at Room 2201, Xxxx Xxx Commercial Building,
000-000 Xxxxxxxxxx Xxxx, Xxx Xxxx, Xxxx Xxxx; |
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‘ACME
Trust Share’ means the one share in the capital of ACME held by the Vendor on
trust on behalf of the Company pursuant to the Declaration of Trust made by the Vendor
dated 1 November 2006 set out in Schedule 2 of this Agreement (the
‘Declaration of Trust’); |
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‘Blitz’
means Blitz Technologies Limited (Company Registration No.: 829869), a company
incorporated in Hong Kong and having its registered address at Unit B,
13/F., Empire Land Commercial Centre, 00-00
Xxxxxxxx Xxxx, Xxx Xxxx, Xxxx Xxxx; |
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‘Business
Day’ means a day (other than a Saturday or Sunday or public holiday) on which
commercial banks are open for business in Hong Kong; |
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‘Company’has
the meaning ascribed to that term in Recital (A); |
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‘Completion’means
the completion of the sale and purchase of the Sale Shares pursuant to Clause 5; |
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‘Completion
Date’ means the date falling seven (7) days after the last condition precedent
has been fulfilled and in any case, no later than fourteen (14) days after completion of
the Stock Purchase Agreement, or such other date as the Parties may agree in writing; |
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‘Confidential
Information’ means any information relating to the transactions contemplated
under this Agreement received by one Party from the other; |
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‘Deal’
includes to sell, offer for sale, transfer, assign or grant or allow to exist any
Encumbrance, trust, option or other right in relation to the whole or any part of any Sale
Share; |
| |
Declaration
of Trust’ has the meaning ascribed to that term in the definition for ‘ACME
Trust Share’ set out above; |
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‘Deed
of Novation’ has the meaning ascribed to that term in Clause 2.1(d); |
| |
‘Encumbrance’
means any form of legal, equitable, or security interests, including but not limited to
any mortgage, assignment of receivables, debenture, lien, charge, pledge, title retention,
right to acquire, security interest, hypothecation, option, right of first refusal, any
preference arrangement (including title transfers and retention arrangements or otherwise)
or any other encumbrance or condition whatsoever or any other arrangements having similar
effect; |
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‘Group’means
the Company, and its subsidiaries and associated companies; |
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‘Hong
Kong’ means the Hong Kong Special Administrative Region of the People's Republic of China; |
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‘Hong
Kong Dollar(s)’ and the sign ‘HK$’ mean the lawful currency of
Hong Kong; |
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‘Parties’means
the Vendor and the Purchaser, and ‘Party’ means any of them; |
| |
‘Purchase
Consideration’ has the meaning ascribed to it in Clause 4.1; |
| |
‘Sale
Shares’ means the shares referred to in Recital (B) which are to be sold
by the Vendor to the Purchaser on the terms and subject to the conditions contained in
this Agreement; |
| |
‘Singapore
Dollar(s)’ and the sign ‘S$’ mean the lawful currency of
Singapore; |
| |
‘Stock
Purchase Agreement’ means the agreement dated 13 June 2007 entered into between
PC Holdings Pte. Ltd. and Top Image Systems, Ltd. for the acquisition of all the shares
held by PC Holdings Pte. Ltd. in Asiasoft Global Pte. Ltd. |
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‘Warranties’
means the representations, warranties and undertakings on the part of the Vendor set out
in Clause 6, and ‘Warranty’ shall mean any one of such Warranties. |
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The
headings in this Agreement are inserted for convenience only and shall be ignored in
construing this Agreement. Unless the context otherwise requires, words (including words
defined in this Agreement) denoting the singular number only shall include the plural and
vice versa. The words ‘written’ and ‘in writing’
include any means of visible reproduction. References to the ‘Appendices’,
‘Clauses’, ‘Recitals’ and ‘Schedules’
are to the relevant appendices, clauses of, recitals of and the schedules to this
Agreement. |
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The
sale and purchase of the Sale Shares is conditional upon: |
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(a) |
no material adverse change (as reasonably determined by the Purchaser in its
sole and absolute discretion) in the prospects, operations or financial
conditions of the Group, taken as a whole, occurring on or before the Completion
Date; |
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(b) |
if required, the approval by the relevant authorities in any relevant
jurisdiction for the acquisition of the Sale Shares being obtained and not
withdrawn, on or before Completion; |
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(c) |
an employment agreement being entered into between the Vendor and Asiasoft
Solutions (GZ) Limited on terms satisfactory to the Purchaser
(‘Employment Agreement’); |
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(d) |
a deed of novation being entered into between the Vendor, the Purchaser and
Blitz pursuant to which the debt of HK$2,777,000.00, being a debt owed by Blitz
to the Vendor (the ‘Debt’), shall be novated to the Purchaser
subsequent to which the Purchaser shall owe to the Vendor the full amount of the
Debt on the terms and conditions of the deed of novation (‘Deed of
Novation’); |
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(e) |
the completion of the Stock Purchase Agreement according to the terms and
subject to the conditions therein; and |
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(f) |
all representations, undertakings and warranties of the Vendor under this
Agreement being complied with, and being true, accurate and correct as at the
Completion Date in all material respects. |
| 2.2 |
Effect
Of Non-Fulfillment Of Conditions |
If by the Completion Date, any of the
conditions in Clause 2.1 are not fulfilled, or, in respect of those conditions
which are capable of being waived by the Purchaser, are not otherwise waived by the
Purchaser, this Agreement shall ipso facto cease and determine and none of the
Parties shall have any claim against the other for costs, damages, compensation or
otherwise, save that: (a) the Parties’ obligation of confidentiality under Clause 9
shall survive the termination of this Agreement; (b) each Party retains its rights against
the other Party in respect of any antecedent breach of this Agreement; and (c) termination
of this Agreement with respect to a Party does not affect any obligation of that Party
which accrued prior to that termination and which remains unsatisfied.
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Subject
to the terms and conditions of this Agreement, the Vendor shall sell the Sale Shares, and
the Purchaser, relying on inter alia the several representations, warranties and
undertakings contained in this Agreement, shall purchase the Sale Shares, free from all
Encumbrances and together with all rights attached thereto as at the Completion Date and
thereafter attaching thereto. |
| 4.1 |
Purchase
Consideration |
| |
The
consideration for the purchase of the Sale Shares (the ‘Purchase
Consideration’) shall be the aggregate sum of US$230,000.00 which shall be
payable to the Vendor if the Vendor complies with Clause 5.2. |
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The
Purchase Consideration will be paid in accordance with the following:- |
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(a) |
50% of the Purchase Consideration to be paid to the Vendor on such date after
Completion as the Parties may agree to in writing but in any event no later than
31 December 2007, either: |
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(ii) |
by
the issue of a number of ordinary shares in the capital of Top Image Systems,
Ltd. of which the aggregate value is equivalent to 50% of the Purchase
Consideration and determined based on an issue price equivalent to the
30-day average trading price of Top Image Systems Ltd. shares prior to the
issue date; and |
| |
(b) |
50%
of the Purchase Consideration to be paid to the Vendor on such date after
Completion as the Parties may agree to in writing but in any event no
later than 31 December 2008, by the issue of a number of ordinary shares
in the capital of Top Image Systems Ltd. of which the aggregate value is
equivalent to 50% of the Purchase Consideration and determined based on an
issue price equivalent to the 30-day average trading price of Top Image
Systems Ltd. shares prior to the issue date. |
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Subject
as hereinafter provided, Completion shall take place at the offices of the Purchaser (or
at such other place as the Parties may agree in writing) on the Completion Date. |
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| 5.2 |
Vendor’s
Obligations on Completion |
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On
the Completion Date, the Vendor shall deliver to the Purchaser (and for these purposes, in
the case of (c) and (d), procure that the Company provides the relevant documents to the
Vendor, in the case of (e) procure that ACME provides the relevant documents to the
Vendor, in the case of (f) procure that Asiasoft Solutions (GZ) Limited provides the
relevant documents to the Vendor and in the case of (g) procure that Blitz provides the
relevant documents to the Vendor):- |
| |
(a) |
duly
executed instrument of transfer in respect of the Sale Shares in favour of
the Purchaser (or as it may direct) accompanied by the relevant share
certificate(s) for the Sale Shares and any consents which the Purchaser
reasonably requires to obtain registration of that transfer; |
| |
(b) |
duly
executed instrument of transfer in respect of the ACME Trust Share in
favour of the Company (or as it may direct) accompanied by the relevant
share certificate for the ACME Trust Share and any consents which the
Company reasonably requires to obtain registration of that transfer; |
| |
(c) |
a
certified copy of a resolution of the shareholders of the Company resolving, inter alia,
that in accordance with the Declaration of Trust, the Company call upon
the Vendor to transfer the ACME Trust Share to the Company as the
beneficial owner of the ACME Trust Share (‘Shareholders’ Resolution’); |
| |
(d) |
a
certified copy of a resolution of the directors of the Company resolving, inter alia,
that: |
| |
(i) |
the
Shareholders’ Resolution be ratified, confirmed and approved; |
| |
(ii) |
a
form of notice written notice calling for the transfer of the ACME Trust Share
to the Company in accordance with the Declaration of Trust be approved and
delivered to the Vendor and that any one director of the Company be
authorised to sign that written notice for and on behalf of the Company; |
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(iii) |
the
transactions contemplated by this Agreement be approved; |
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(iv) |
subject
to the payment of any stamp duty, the transfer of the Sale Shares will be
registered; |
| |
(v) |
the
old share certificate(s) issued in the name of the Vendor in respect of the
Sale Shares will be cancelled; |
| |
(vi) |
a
new share certificate issued in the name of the Purchaser in respect of the
Sale Shares be signed, sealed and issued in accordance with the Articles
of Association of the Company; |
| |
(vii) |
any
one director of the Company be and is authorised in the name of or on behalf
of the Company, to: |
| |
(A) |
execute/sign
and deliver such other documents and instruments (if and where required, with
the common seal of the Company affixed thereto) including the instrument of
transfer for the ACME Trust Share (Company as transferee); and |
5
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(B) |
do
all further acts and things, relating, ancillary and supplemental to the
transfer of legal title to the ACME Trust Share, the Declaration of Trust, the
Agreement and transactions contemplated by each of them, in each case as he may
deem necessary or desirable in connection therewith. |
| |
(e) |
a
certified copy of a resolution of the directors of ACME resolving inter alia
that:- |
| |
(i) |
subject
to the payment of any stamp duty, the transfer of the ACME Trust Share will be
registered; |
| |
(ii) |
the
old share certificate issued in the name of the Vendor in respect of the
ACME Trust Share will be cancelled; |
| |
(iii) |
a
new share certificate issued in the name of the Company in respect of the ACME
Trust Share be signed, sealed and issued in accordance with the Articles
of Association of ACME; |
| |
(iv) |
any
one director of ACME be and is authorised in the name of or on behalf of
ACME, to: |
| |
(A) |
execute/sign
and deliver such other documents and instruments (if and where required, with
the common seal of ACME affixed thereto); and |
| |
(B) |
do
all further acts and things, relating, ancillary and supplemental to the
transfer of legal title to the ACME Trust Share, the Declaration of Trust, the
Agreement and transactions contemplated by each of them, in each case as he may
deem necessary or desirable in connection therewith; |
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(f) |
a
counterpart of the Deed of Novation, duly executed by the Vendor and Asiasoft
Solutions (GZ) Limited. |
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(g) |
a
counterpart of the Deed of Novation, duly executed by the Vendor and Blitz. |
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(a) |
If
the documents required to be delivered by the Vendor on Completion are not
forthcoming for any reason or if in any other respect the provisions of Clause
5.2 are not fully complied with by the Vendor, the Purchaser shall be
entitled (in addition to and without prejudice to all other rights or
remedies available to it, including the right to claim damages): |
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(i) |
to
elect to terminate this Agreement; |
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(ii) |
to
effect Completion so far as practicable having regard to the defaults which
have occurred and without prejudice to its rights in respect thereof; or |
| |
(iii) |
defer
Completion to a date not more than 28 days after the Completion Date (in
which case the provisions of this Clause 5.3 shall apply to
Completion as so deferred). |
6
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(b) |
For
the avoidance of doubt, in the event that the Stock Purchase Agreement is
not completed according to the terms contained therein, the Purchaser
shall be entitled to terminate this Agreement and upon such termination,
this Agreement shall ipso facto cease and determine and none of the
Parties shall have any claim against the other for costs, damages,
compensation or otherwise save that: (a) the Parties’ obligation of
confidentiality under Clause 9 shall survive the termination of this Agreement;
(b) each Party retains its rights against the other Party in respect of
any antecedent breach of this Agreement; and (c) termination of this
Agreement with respect to a Party does not affect any obligation of that
Party which accrued prior to that termination and which remains
unsatisfied. |
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The
Vendor represents and warrants to and undertakes with the Purchaser and its successors in
title (with the intent that the provisions of this Clause 6.1 shall continue to
have full force and effect notwithstanding Completion) as follows: |
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(a) |
it is and will on Completion be entitled to and is able to transfer the Sale
Shares to the Purchaser and under this Agreement; |
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(b) |
the Sale Shares are fully paid-up; |
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(c) |
the Vendor is beneficial and registered legal owner of the Sale Shares; |
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(d) |
the Vendor is the registered legal owner of the ACME Trust Share; |
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(e) |
the Sale Shares are and will on Completion be free from all and any Encumbrances
whatsoever, and no other person has or shall have any rights of pre-emption over
such Sale Shares; |
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(f) |
it has full power and capacity to enter into and perform this Agreement and this
Agreement when executed will constitute valid and binding obligations on and
against the Vendor; and |
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(g) |
the execution and delivery of, and the performance by the Vendor of its
obligations under, this Agreement will not |
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(i) |
result
in a breach of any provision of any agreement to which the Vendor is a party;
or |
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(ii) |
result
a breach of any order, judgment or decree of any court, governmental agency or
regulatory body to which the Vendor is a party or by which the Vendor is bound. |
| 6.2 |
Warranties
To Be Separate And Independent |
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The
Warranties shall be separate and independent and shall not be limited by anything in this
Agreement which is not expressly referenced to the Warranty concerned. |
| 6.3 |
Updating
To Completion |
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The
Vendor represents and warrants to and undertakes with the Purchaser and their successors
in title that the Warranties given by it will be fulfilled down to, and will be true and
correct in all material respects and not misleading at, Completion as if they had been
entered into afresh at Completion and with reference to the circumstances then existing at
Completion. |
7
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The
Warranties and all other provisions of this Agreement insofar as the same shall not have
been performed at Completion shall not in any respect be extinguished or affected by
Completion, or by any other event or matter whatsoever, except by a specific and duly
authorised written waiver or release by the Purchaser. |
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The
Vendor will and will procure that the Company and ACME will, do all such acts and things
and execute and file all such documents as may be required in connection with this
Agreement and the sale and purchase of the Sale Shares and the transfer of the legal title
to the ACME Trust Share as expeditiously as practicable. |
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The
Vendor covenants not to Deal with the Sale Shares prior to Completion. |
| 9.1 |
Confidential
Information To Be Kept Confidential |
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9.1.1 |
Confidential
Information shall be used by each Party exclusively for the purpose of the transactions
contemplated by this Agreement only. Both Parties agree to hold in confidence all
information disclosed to it by the other Party unless it is required or desirous to be
disclosed by law, a court order or by any other competent authority or regulatory body,
and provided that the receiving Party shall notify the disclosing Party before disclosing
the Confidential Information so that the disclosing Party may be afforded the opportunity
to contest the order or otherwise seek modification to restrict disclosure. |
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9.1.2 |
The
Parties agree that no announcement of any Confidential Information shall be made by
either Party without prior consultation with the other Party. |
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9.1.3 |
The
restrictions above shall not apply to any Confidential Information: |
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(a) |
which
at the time of disclosure to the receiving Party is in the public domain;
or |
| |
(b) |
which
after such disclosure, becomes generally available to the public other
than by reason of breach of the restrictions above. |
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9.1.4 |
Any
Confidential Information imparted hereunder shall remain in the property of the
originating Party. |
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| 9.2 |
Obligations
In This Clause To Endure |
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The
obligations contained in this clause shall inure, even after the termination of this
Agreement, without limit in point of time. |
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This
Agreement (together with any documents referred to herein or executed contemporaneously by
the Parties in connection herewith) embodies all the terms and conditions agreed upon
between the Parties as to the subject matter of this Agreement and supersedes and cancels
in all respects all previous agreements and undertakings, if any, between the Parties with
respect to the subject matter hereof, whether such be written or oral. |
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Any
liability to any Party under this Agreement may in whole or in part be released,
compounded or compromised, or time or indulgence given, by it in its absolute discretion
as regards the other Party under such liability without in any way prejudicing or
affecting its rights against such other Party. |
| 10.3 |
Indulgence,
Waiver, Etc. |
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No
failure on the part of either Party to exercise and no delay on the part of such Party in
exercising any right hereunder will operate as a release or waiver thereof, nor will any
single or partial exercise of any right under this Agreement preclude any other or further
exercise of it or any other right or remedy. |
| 10.4 |
Continuing
Effect Of Agreement |
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All
provisions of this Agreement shall not, so far as they have not been performed at
Completion, be in any respect extinguished or affected by Completion or by any other event
or matter whatsoever and shall continue in full force and effect so far as they are
capable of being performed or observed. |
| 10.5 |
Successors
And Assigns |
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This
Agreement shall be binding on and shall enure for the benefit of each of the Parties’
successors and assigns. Any reference in this Agreement to any of the Parties shall be
construed accordingly. |
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Any
time, date or period mentioned in any provision of this Agreement may be extended by
mutual agreement between the Parties in accordance with this Agreement or by agreement in
writing but as regards any time, date or period originally fixed or any time, date or
period so extended as aforesaid time shall be of the essence. |
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At
any time after the date of this Agreement, each Party shall, and shall use its best
endeavours to procure that any necessary third party shall, execute such documents and do
such acts and things as the other Parties may reasonably require for the purpose of giving
to such other Parties the full benefit of all the provisions of this Agreement. |
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No
remedy conferred by any of the provisions of this Agreement is intended to be exclusive of
any other remedy which is otherwise available at law, in equity, by statute or otherwise,
and each and every other remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law, in equity, by statute or
otherwise. The election of any one or more of such remedies by any Party shall not
constitute a waiver by such Party of the right to pursue any other available remedies. |
| 10.9 |
Severability
Of Provisions |
| |
If
any provision of this Agreement is held to be illegal, invalid or unenforceable in whole
or in part in any jurisdiction, this Agreement shall, as to such jurisdiction, continue to
be valid as to its other provisions and the remainder of the affected provision; and the
legality, validity and enforceability of such provision in any other jurisdiction shall be
unaffected. |
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(a) |
Notices
To Be In Writing |
| |
All
notices, demands or other communications required or permitted to be given or made
hereunder shall be in writing and delivered personally or sent by facsimile or by prepaid
registered post with recorded delivery, addressed to the intended recipient thereof at its
address set out at the front of this Agreement (or such other address as is notified by a
Party from time to time), and marked for the attention of such person. |
| |
Any
such notice, demand or communication shall be deemed to have been duly served (if
delivered personally or given or made by facsimile) immediately or (if given or made by
letter) five Business Days after posting and in proving the same it shall be sufficient to
show that personal delivery was made or that the envelope containing such notice was
properly addressed, and duly stamped and posted or that according to the transmission
report the facsimile transmission was properly addressed and despatched. |
| 10.11 |
Governing
Law And Jurisdiction |
| |
This
Agreement shall be governed by, and construed in accordance with, the laws of Israel and
the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of
Israel and waive any objection to proceedings in any such court on the grounds of venue or
on the grounds that the proceedings have been brought in an inconvenient forum. The
submission by the Parties herein shall not affect the right of any Party to take
proceedings in any other jurisdiction nor shall the taking of proceedings in any
jurisdiction preclude any Party from taking proceedings in any other jurisdiction. |
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SCHEDULE 1
PARTICULARS OF THE
COMPANY
Company registration
number: 1003170
Registered office: Unit B, 13/F., Empire Land Xxxxxxxxxx Xxxxxx, 00-00 Xxxxxxxx Xxxx, Xxx Xxxx, Xxxx Xxxx
Date and place of incorporation: 25 October 2006, Hong Kong,
Authorised share capital: 10,000 shares of HK$1.00 each
Issued and fully paid-up share capital: 10,000 shares of HK$1.00 each
Directors: Xxx Xxxxx Tai
and Kian Hong Toh
Secretary: X.X. Xxx
Secretarial Services Limited
Auditors: X.X. Xxx & Co. (Certified Public Accountants)
Accounting reference
date: NIL
11
SCHEDULE 2
Declaration of Trust
12
IN WITNESS WHEREOF this Agreement has been
entered into on the date stated at the beginning.
The Vendor
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| SIGNED by XXX XXXXX TAI in the |
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| presence of: |
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| Signature of witness |
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| Name of witness (block letters) |
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Signature of XXX XXXXX TAI |
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The Purchaser
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| SIGNED by |
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| for and on behalf of |
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| ASIASOFT GLOBAL PTE. LTD. |
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| in the presence of: |
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| Signature of witness |
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—————————————— |
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By executing this agreement the |
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signatory warrants that the signatory is |
| —————————————— |
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duly authorised to execute this |
| Name of witness (block letters) |
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agreement on behalf of Asiasoft Global |
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) |
Pte. Ltd. |
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