Exhibit 4.17
PRIVATE &
CONFIDENTIAL
BETWEEN
SHANGHAI AIXUN SOFTWARE CO., LTD.
as Vendor
AND
ASIASOFT SYSTEM
(CHINA) LIMITED
as Purchaser
AGREEMENT
RELATING TO THE SALE AND PURCHASE OF 0.82% OF THE
REGISTERED CAPITAL OF SHANGHAI ASIASOFT
LTD.
CONTENTS
i
AGREEMENT
THIS AGREEMENT is entered into this
[12th] day of [June] 2007
BETWEEN:
| 1. |
Shanghai Aixun Software Co., Ltd. (in
Chinese  ;
Company Registration Number: 3101142019740), formerly known as Shanghai
Mingzhong Computer Network Co., Ltd. (in
Chinese  ),
is a company incorporated in the People’s Republic of China and having its
address at ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, (the ‘Vendor’);
and |
| 2. |
Asiasoft
System (China) Limited (Company Registration Number: 728971) is a company
incorporated in Hong Kong and having its address at ▇▇▇▇ ▇▇▇▇, Universal
Trade Centre, ▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the
‘Purchaser’); |
WHEREAS:
| (A) |
 Shanghai Asiasoft Ltd. (Company Registration Number: QI ZUO HU ZONG FU ZI DI
028477 HAO (▇▇ ▇▇▇)) (the ‘Company’) is a Sino-foreign
cooperative joint venture company incorporated in China and having its address
at Room 1608, ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ and has at the date of this
Agreement a registered capital of USD 1,220,000.00. Further particulars of the
Company are contained in Schedule 1. |
| (B) |
At
the date of this Agreement, the Vendor is the registered owner of USD
10,000.00 in the registered capital of the Company (equivalent to 0.82% of
the registered capital of Company). |
| (C) |
The
Vendor has agreed to sell, and the Purchaser has agreed to purchase, the
Sale Capital (as defined below) for the consideration, and on the terms
and subject to the conditions, contained in this Agreement (the
‘Acquisition’). |
NOW IT IS AGREED AS FOLLOWS:
| |
In
this Agreement and the Schedules, unless the context otherwise requires: |
| |
‘Amended
Business License’ means the business license of the Company to be issued by the
State Administration for Industry and Commerce of PRC or its designated local authorities
following the relevant approval of the Agreement; |
| |
‘Business
Day’ means a day (other than a Saturday or Sunday) on which commercial banks are
open for business in People’s Republic of China; |
| |
‘Completion’ means
the completion of the sale and purchase of the Sale Capital pursuant to Clause 5; |
1
| |
‘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; |
| |
‘Confidential
Information’ means any information relating to the transactions contemplated
under this Agreement received by one Party from the other; |
| |
‘Deal’ means
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 Capital; |
| |
‘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; |
| |
‘Group
Companies’ and ‘Group’ means the Company, and its subsidiaries
and associated companies, and ‘Group Company’ means any of them; |
| |
‘Parties’means
the Vendor and the Purchaser, and ‘Party’ means any of them; |
| |
‘PRC’ means
the People’s Republic of China, which, for the purposes of this Agreement, shall
exclude Hong Kong, Macao Special Administrative Region and Taiwan; |
| |
‘Purchase
Consideration’ has the meaning ascribed to it in Clause 4.1; |
| |
‘Purchaser
Warranties’ means the representations, warranties and undertakings on the part of
the Purchaser set out in Clause 7; |
| |
‘Renminbi’
or ‘RMB’ means the lawful currency of the PRC; |
| |
‘Sale
Capital’ means the portion of the registered capital of the Company referred to
in Recital (B) which is to be sold by the Vendor to the Purchaser on the terms
and subject to the conditions contained in this Agreement; |
| |
‘Stock
Purchase Agreement’ means the agreement dated [—] 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. |
| |
‘Third
Party Confidential Information’ means Confidential Information belonging to a
person who is not party to this Agreement; |
| |
‘Transaction’ includes
any transaction, act, event or omission of whatever nature; |
| |
‘USD’ means
the lawful currency of the United States of America; |
| |
‘Vendor
Warranties’ means the representations, warranties and undertakings on the part of the
Vendor set out in Clause 7; and |
| |
‘Warranties’ means,
collectively, the Vendor Warranties and the Purchaser Warranties, and ‘Warranty’ shall
mean any one of such Warranties. |
2
| |
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. |
| |
The
sale and purchase of the Sale Capital is conditional upon: |
| |
(a) |
no
material adverse change (as reasonably determined by the Purchaser in its sole
and absolute discretion prior to the Completion Date) in the prospects,
operations or financial conditions of the Group, taken as a whole, occurring on
or before the Completion Date; |
| |
(b) |
the
certificate of approval by the relevant authorities for the acquisition of the
Sale Capital and the Amended Business License of the Company being obtained and
not withdrawn, on or before Completion; |
| |
(c) |
the
completion of the Stock Purchase Agreement in according to the terms and
subject to the conditions therein; |
| |
(d) |
all
representations, undertakings and warranties of the Vendor under this Agreement
being complied with, are true, accurate and correct as at the Completion Date
in all material respects; |
| |
(e) |
the
relevant evidencing documents, to the satisfactory of the Purchaser, having
been provided by the Vendor to the Purchaser, evidencing that the Vendor was
formerly named as Shanghai Mingzhong Computer Network Co., Ltd; and |
| |
(f) |
The
termination of the Cooperative Contract dated 5 March 2001. |
| 2.2 |
Effect
Of Non-Fulfillment Of Conditions |
| |
If
any of the conditions in Clause 2.1 thatis capable of being waived by the
Purchaser is not waived by the Completion Date or otherwise fulfilled, the Purchaser
shall give a written notice to the Vendor, within ten (10) working days after the
Completion Date, indicating that the Agreement shall ipso facto terminate, and
none of the Parties shall have any claim against the other for costs, damages,
compensation or otherwise, save that the Parties’ obligation of confidentiality
under Clause 9 shall survive the termination of this Agreement. Or else, all the
conditions specified in Clause 2.1 shall deem to be fulfilled. |
| 3 |
SALE
AND PURCHASE OF SALE CAPITAL |
| |
Subject
to the terms and conditions of this Agreement, the Vendor shall sell the Sale Capital,
and the Purchaser, relying on inter alia the several representations, warranties
and undertakings contained in this Agreement, shall purchase the Sale Capital, free from
all Encumbrances and together with all rights attached thereto as at the Completion Date
and thereafter attaching thereto. |
3
| 4.1 |
Purchase
Consideration |
| |
The
consideration for the purchase of the Sale Capital (the ‘Purchase Consideration’)
shall be RMB 4,000,000.00 in total. The Purchaser will pay 60% of the Purchase
Consideration to the bank account designated by the Vendor in writing within 20 working
days after all the conditions specified in Clause 2.1 being fulfilled or otherwise waived
by the Purchaser. The Purchaser shall pay the remaining 40% of the Purchase Consideration
to the bank account designated by the Vendor in written before 31 December 2007. |
| |
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. |
| 5.2 |
Vendor’s
Obligations on Completion |
| |
On
the Completion Date, the Vendor shall deliver to the Purchaser the certificate of
approval from the Commission of Commerce and Amended Business License of the Company. |
| |
(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): |
| |
(i) |
to
elect to terminate this Agreement; |
| |
(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). |
| |
(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 the termination, this Agreement
shall ipso facto terminate and none of the Parties shall have any claim
against the other for costs, damages, compensation or otherwise. |
4
| |
The
Vendor represents and warrants to and undertake 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: |
| |
(a) |
it
is and will on Completion be entitled to and is able to transfer the Sale
Capital to the Purchaser and under this Agreement; |
| |
(b) |
the
Sale Capital is fully paid-up; |
| |
(c) |
the
Vendor is the registered owner of the Sale Capital; |
| |
(d) |
the
Sale Capital is 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 Capital; |
| |
(e) |
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 |
| |
(f) |
the
execution and delivery of, and the performance by the Vendor of its obligations
under, this Agreement will not:- |
| |
(i) |
result
in a breach of any provision of any agreement to which the Vendor is a party;
or |
| |
(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. |
| 6.3 |
Warranties
To Be Separate And Independent |
| |
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. |
| 6.4 |
Updating
To Completion |
| |
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. |
| |
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. |
5
| |
The
Vendor and the Company undertakes with the Purchaser that after this Agreement comes into
effect, it 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
Capital as expeditiously as practicable. |
| |
The
Vendor covenants not to Deal with the Sale Capital prior to Completion. |
| 9.1 |
Confidential
Information To Be Kept Confidential |
| |
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. |
| |
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. |
| |
9.1.3 |
The
restrictions above shall not apply to any Confidential Information: |
| |
(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. |
| |
9.1.4 |
Any
Confidential Information imparted hereunder shall remain in the property of the
originating Party. |
| 9.2 |
Obligations
In This Clause To Endure |
| |
The
obligations contained in this clause shall inure, even after the termination of this
Agreement, without limit in point of time. |
| |
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. |
6
| |
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. |
| |
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 |
| |
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 |
| |
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. |
| |
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. |
| |
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. |
| |
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. |
7
| 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. |
| |
(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 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 (if any). |
| |
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) two 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 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 [the People’s
Republic of China] and the Parties hereby irrevocably submit to the non-exclusive
jurisdiction of the courts of the People’s Republic of China 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. 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. |
8
SCHEDULE 1
PARTICULARS OF THE
COMPANY
Registration Number: QI ZUO HU ZONG FU ZI DI 028477 HAO (▇▇ ▇▇▇)
Registered Office: ▇▇▇▇
▇▇▇▇, ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Date and Place of
Incorporation: 12 April 2001, Shanghai
Issued and Fully Paid-Up Capital: USD
1,220,000.00
Legal Representative: He
Peiqi 
Directors: [—]
Secretary: [—]
Auditors: [—]
Accounting Reference
Date: [—]
9
IN WITNESS WHEREOF this Agreement has
been entered into on the date stated at the beginning.
|
|
| The Vendor |
|
| |
| Signed by |
) |
| for and on behalf of |
) |
| [—] |
) |
| in the presence of: |
) |
| |
| |
| The Purchaser |
| |
| Signed by |
) |
| for and on behalf of |
) |
| [—] |
) |
| in the presence of: |
) |
10
