As filed with the Securities and Exchange Commission on December 19, 2002
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
TOP IMAGE SYSTEMS LTD.
(Exact name of registrant as specified in its charter)
Israel Not Applicable
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2 Habarzel Street
Ramat Hahayel
Tel Aviv, Israel 69710
(Address of Principal Executive Offices) (Zip code)
TOP IMAGE SYSTEMS LTD. EMPLOYEE SHARE OPTION PLAN (2000)
SHARE PURCHASE AGREEMENT BY AND BETWEEN
TOP IMAGE SYSTEMS LTD., IZHAK NAKAR AND YEHEZKEL YESHURUN
LETTER OF APPOINTMENT OF THE CHAIRMAN OF THE BOARD
(Full title of the plan)
TIS America, Inc.
2231 Faraday Avenue
Carlsbad, CA 92008
Tel: (760) 918-1660
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------------
Copy to:
Stephen W. Rubin, Esq. Narda Ben Zvi, Adv.
Proskauer Rose LLP Ben Zvi Koren Law Offices
1585 Broadway 8 Ben Maimon St.
New York, New York 10036 Jerusalem 92261 Israel
(212) 969-3000 011-972-2-561-9111
---------------------------------
CALCULATION OF REGISTRATION FEE
=======================================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered Registered (1) offering price aggregate offering registration
per unit price fee
-------------------------------------------------------------------------------------------------------
Ordinary Shares,
nominal value NIS 201,500 (2) $0.51 (7) $102,765 (7) $30.60
0.04 per share 38,500 (3) $0.51 (7) $ 19,635 (7)
50,000 (4) $2.00 $100,000
50,000 (5) $2.00 $100,000
20,000 (6) $0.51 (7) $ 10,200 (7)
------- -------
360,000 $332,600
=======================================================================================================
(1) Excludes such additional indeterminate number of shares as may be
issuable pursuant to the anti-dilution provision of the Top Image
Systems Ltd. Employee Share Option Plan (2000) (the "Plan").
(2) The number of ordinary shares as to which awards have been granted
under the Plan.
(3) The remaining number of ordinary shares as to which awards may be
granted under the Plan. Pursuant to Rule 416 under the Securities Act
of 1933, as amended (the "Securities Act"), there are also being
registered such additional indeterminate number of ordinary shares as
may be required to cover possible adjustments under the Plan.
(4) Represents shares reserved for issuance pursuant to options previously
granted to Izhak Nakar under the Share Purchase Agreement dated
November 8, 2001, by and between Top Image Systems Ltd. (the
"Company"), Izhak Nakar and Yehezkel Yeshurun (the "Share Purchase
Agreement").
(5) Represents shares reserved for issuance pursuant to options previously
granted to Yehezkel Yeshurun under the Share Purchase Agreement.
(6) Represents shares reserved for issuance pursuant to options granted to
Thomas C. Lavey under the Letter of Appointment of the Chairman of the
Board, effective as of November 26, 2002 (the "Letter of
Appointment").
(7) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended,
and based upon the average of the bid and asked prices of the Ordinary
Shares on December 16, 2002, as reported by the NASDAQ SmallCap
Market.
1
TOP IMAGE SYSTEMS, LTD. HAS RECEIVED FROM THE SECURITIES AUTHORITY OF THE
STATE OF ISRAEL AN EXEMPTION FROM THE OBLIGATION TO PUBLISH REPORTS REGARDING
OFFERING OF SECURITIES TO EMPLOYEES BASED ON ITS OBLIGATION TO FILE REPORTS TO
U.S. AUTHORITIES AND SUBJECT TO VARIOUS CONDITIONS AS DETAILED IN THE EXEMPTION
LETTER, INCLUDING ALLOWING EMPLOYEES ACCESS TO FORM S-8 AND PROVIDING COPIES TO
THE AUTHORITIES. THE COMPANY ALSO RECEIVED AN EXEMPTION FROM FILING A PROSPECTUS
REGARDING OFFERING THE COMPANY'S SECURITIES TO THE PUBLIC ABROAD AND FROM THE
FILING OF OTHER REPORTS SUBJECT TO VARIOUS CONDITIONS AS DETAILED IN THE
EXEMPTION LETTER, INCLUDING THE COMPANY'S DUTY TO REPORT TO U.S. AUTHORITIES IN
ACCORDANCE WITH THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED AND TO REFERENCE
TO THE EXEMPTION IN ANY PROSPECTUS AND ALLOWING THE PUBLIC ACCESS TO SUCH
PROSPECTUS AT THE OFFICES OF THE COMPANY. NOTHING IN SUCH EXEMPTION OF THE
SECURITIES AUTHORITY OF THE STATE OF ISRAEL SHALL BE CONSTRUED AS AUTHENTICATING
THE MATTERS CONTAINED IN THIS PROSPECTUS OR AS AN APPROVAL OF THEIR RELIABILITY
OR ADEQUACY OR AS AN EXPRESSION OF OPINION AS TO THE QUALITY OF THE SECURITIES
OFFERED HEREBY.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to participants in the
Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended
(the "Securities Act"). Such documents are not required to be, and are not
being, filed by Top Image Systems, Ltd. with the Securities and Exchange
Commission, either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act. Such
documents, together with the documents incorporated by reference herein pursuant
to Item 3 of Part II of this Registration Statement on Form S-8, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the Plan and its administrators are available
without charge by contacting:
2
TOP IMAGE SYSTEMS, LTD.
2 Habarzel Street
Ramat Hahayal
Tel Aviv 69710, Israel
Attention: Chief Financial Officer
011-972-3-767-9100
3
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed with the Securities and Exchange Commission
(the "Commission") by Top Image Systems Ltd., a company organized under the laws
of Israel (the "Company" or the "Registrant"), are incorporated herein by
reference:
(1) the Company's Annual Report on Form 20-F for the year ended December
31, 2001;
(2) the Company's Reports of Foreign Private Issuer on Form 6-K filed on
January 15, 2002, May 2, 2002, August 13, 2002, September 9, 2002 and November
26, 2002;
(4) the description of the Company's Ordinary Shares, nominal value NIS
0.04 per share, contained in the Company's Registration Statement filed on Form
S-1 on October 2, 1996, including any amendment or report filed for the purpose
of updating such description; and
(5) all documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing such documents.
Any statement in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for the purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Companies Law, 5759-1999 (the "Companies Law") provides that an Israeli
company cannot exculpate an office holder from liability with respect to a
breach of his duty of loyalty, but may exculpate in advance (subject to the
existence of such instruction in the Articles of Association) an office holder
from his liability to the company, in whole or in part, with respect to a breach
of his duty of care. In addition a company, may also indemnify an office holder
subject to relevant provisions in the Articles of Association (either undertake
4
in advance to indemnify an office holder, provided that the undertaking is
limited to types of events which the board of directors deems to be anticipated
and limited to an amount determined by the board of directors to be reasonable
under the circumstances or authorize the company to indemnify the office holder
retroactively). The indemnification may be granted with regard to monetary
liability due to an action within the scope of his duty, towards another person
according to a judicial ruling and/or reasonable legal expenses in a procedure
brought against him by the company, or a criminal act from which he was
acquitted or a criminal offense that does not require mens rea.
A company may further, subject to the appropriate provision in the Articles
of Association, insure an office holder for monetary liability imposed on him
due to an action taken by him as an office holder with regard to: (i) breach of
his duty of care to the company or any third party; or (ii) breach of his duty
of loyalty to the company subject to the office holder acting in good faith and
having reasonable basis to assume that the act would not prejudice the company;
or (iii) monetary liability that might be imposed on him towards a third party.
These provisions are specifically limited in their scope by the Companies
Law, which provides that a company may not exculpate an office holder from his
duty toward the company, indemnify an office holder whether by board resolution
or according to the Articles of Association, nor enter into an insurance
contract which would provide coverage for any monetary liability incurred as a
result of any of the following: (i) a breach by the office holder of his duty of
loyalty unless the office holder acted in good faith and had a reasonable basis
to believe that the act would not prejudice the company; (ii) a breach by the
office holder of his duty of care is such breach was done intentionally or in
disregard of the circumstances of the breach or its consequences; (iii) any act
or omission done with the intent to derive an illegal personal benefit; or (iv)
any fine levied against the office holder as a result of a criminal offense.
The Articles of Association of the Company provides as follows:
(a) The Company is authorized to procure director's and officer's
liability insurance for the following:
(1) the breach of the duty of care by any director or officer
towards the Company or any other person;
(2) the breach of the fiduciary duty by any director or officer
towards the Company, but only in the event that such director or
officer acted in good faith and had a reasonable basis to assume that
the action would not prejudice the Company; and
(3) a monetary obligation placed on an office holder for the
benefit of a third party by reason of an act or omission of such
person in his capacity as an office holder.
(b) The Company is authorized to indemnify its directors and officers
for the following:
(1) a monetary obligation imposed on an office holder for the
benefit of a third party by judgment, including any settlement with
the force of a judgment and the decision of an arbitrator certified by
the court by reason of an act or omission done by him in his capacity
as an office holder; and
5
(2) reasonable litigation expenses, including legal fees actually
incurred by the office holder or which he is obligated to pay by court
order for a proceeding brought against him by the Company, on its
behalf or by a third party, or for a criminal proceeding in which he
is acquitted in connection with acts or omissions done by him in his
capacity as an office holder.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
4.1 Company's Share Plan Option Plan (2000) (incorporated by reference
to Exhibit 3.2 to the Company's Form 20-F, for the year ended
December 31, 2001)
5.1 Opinion of Ben Zvi Koren Law Offices
10.1 Share Purchase Agreement dated November 8, 2001, by and between the
Company, Izhak Nakar and Yehezkel Yeshurun
10.2 Letter of Appointment of the Chairman of the Board, effective
November 26, 2002
23.1 Consent of Somekh Chaikin - member of KPMG International
23.2 Consent of Kost, Forer and Gabbay
23.3 Consent of Ben Zvi Koren Law Offices (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page to this
Registration Statement)
Item 9. Undertakings.
------------
A. The undersigned registrant hereby undertakes:
(1) to file during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
6
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof, and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
7
EXHIBIT INDEX
Exhibit Page
No. Description No.
--------- ----------- ---
4.1 Company's Share Plan Option Plan (2000) (incorporated
by reference to Exhibit 3.2 to the Company's Form 20-F,
for the year ended December 31, 2001)
5.1 Opinion of Ben Zvi Koren Law Offices
10.1 Share Purchase Agreement dated November 8, 2001,
by and between the Company, Izhak Nakar and Yehezkel
Yeshurun
10.2 Letter of Appointment of the Chairman of the Board,
effective November 26, 2002
23.1 Consent of Somekh Chaikin - member of KPMG International
23.2 Consent of Kost, Forer and Gabbay
23.3 Consent of Ben Zvi Koren Law Offices (included in
Exhibit 5.1)
24.1 Power of Attorney (included on the signature page to
this Registration Statement)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tel Aviv, State of Israel, on this 19th day of
December, 2002.
TOP IMAGE SYSTEMS LTD.
By /s/ Ido Schechter
-----------------------
Chief Executive Officer
8
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each director and officer whose
signature appears below hereby constitutes and appoints Ido Schechter, and Arie
Rand or any of them, as his true and lawful attorney-in-fact and agent, with
full power of substitution, to sign on his behalf individually and in any and
all capacities any and all amendments (including post-effective amendments) to a
Registration Statement on Form S-8 relating to the registration under the
Securities Act of 1933 of Ordinary Shares of Top Image Systems Ltd. under the
Employee Share Option Plan (2000), and to file the same with all exhibits
thereto and all other documents in connection therewith with the Securities and
Exchange Commission, granting to such attorneys-in-fact and agents, and each of
them, full power and authority to do all such other acts and things requisite or
necessary to be done, and to execute all such other acts and things requisite or
necessary to be done, and to execute all such other documents as they, or any of
them, may deem necessary or desirable in connection with the foregoing, as fully
as the undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys-in-fact and agents, or any of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Ido Schechter Chief Executive December 19, 2002
----------------------------- Officer (Principal
Ido Schechter Executive Officer)
/s/ Arie Rand Chief Financial Officer December 19, 2002
----------------------------- (Principal Financial and Accounting
Arie Rand Officer)
/s/ Thomas C. Lavey Chairman of the Board of December 19, 2002
------------------------- Directors
Thomas C. Lavey
/s/ Rami Lazar External Director December 19, 2002
-----------------------------
Rami Lazar
9
/s/ Ofir Zemer External Director December 19, 2002
-----------------------------
Ofir Zemer
/s/ Izhak Nakar Director December 19, 2002
-----------------------------
Izhak Nakar
/s/ A. Lawrence Fagan Director December 19, 2002
-----------------------------
A. Lawrence Fagan
/s/ Elie Housman Director December 19, 2002
-----------------------------
Elie Housman
/s/ Phyllis Haberman Director December 19, 2002
-----------------------------
Phyllis Haberman
AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
TIS AMERICA INC.
By: /s/ Ido Schechter December 19, 2002
-------------------------
Name: Ido Schechter
10
EXHIBIT 5.1
[Letterhead of Ben Zvi Koren Law Offices]
December 19, 2002
To:
Top Image Systems Ltd.
2 HaBarzel St.
Ramat Hahayal,
Tel Aviv
Israel
Ladies and Gentlemen,
As Israeli counsel of Top Image Systems Ltd., an Israeli company (the "Company")
we have reviewed the Top Image Systems Employee Share Option Plan (2000) (the
"Plan") authorizing the issuance of up to 240,000 additional Ordinary Shares, at
par value NIS 0.04 per share, the Share Purchase Agreement by and between Top
Image Systems Ltd., Izhak Nakar, and Yehezkel Yeshurun effective as of November
8, 2001 (the "Share Purchase Agreement"), granting Mr. Nakar and Mr. Yeshurun an
option to purchase up to 100,000 additional Ordinary Shares at par value NIS
0.04 per share and the Letter of Appointment of the Chairman of the Board,
effective as of November 26, 2002 (the "Letter of Appointment"), granting Mr.
Thomas C. Lavey an option to purchase up to 20,000 Ordinary Shares at par value
NIS 0.04 per share.
We have examined copies of such corporate records, agreements, documents and
other instruments presented to us by the officers and representatives of the
company.
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of documents
submitted to us as certified conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied solely upon certificates or comparable documents of officers and
representatives of the Company. In making our examination of documents executed
by parties other than the Company, we have assumed that such parties had the
power, corporate or other to enter into and perform all obligations thereunder
and have also assumed the due authorizations by all requisite action, corporate
or other and due execution and delivery by such parties of such documents and
the validity and binding effect thereof.
Based on the forgoing and subject to the qualifications stated herein:
We are of the opinion that the Ordinary Shares, when issued and paid for in
accordance with terms of each of the Plan, the Share Purchase Agreement and the
Letter of Appointment (collectively, the "Company Option Agreements"), and
subject to payment of relevant taxes upon issuance thereof, will be, assuming no
change in the applicable law or pertinent facts, validly issued, fully paid and
non assessable.
This opinion is subject to the following qualifications:
This opinion is based on the facts existing on the date hereof and of which we
are aware without making any special investigation and we disclaim any
obligation to advise you of facts, circumstances, events or developments which
hereafter may be brought to our attention and which may alter, affect or modify
the opinion expressed herein.
We express no opinion as to any laws other than the laws of the State of Israel
as the same are in force on the date hereof and we have not, for the purpose of
giving this opinion, made any investigation of the laws of any other
jurisdiction, including, without limitation, the laws of the State of New York
and of the United States of America.
We render no opinion in relation to any representation made or given in the
Registration Statement.
This opinion is furnished solely to you in connection with the Registration
Statement and is not to be used, distributed, circulated, quoted or otherwise
referred to for any other purpose without our express written permission.
We hereby consent to the filing of this opinion as an exhibit to the Company's
Registration Statement on Form S-8 relating to the Company Option Agreements.
This consent is not to be construed as an admission that we are a party whose
consent is required to be filed with the Registration Statement under the
provisions of the Act.
Very truly yours,
/s/ Ben Zvi Koren Law Offices
BEN ZVI KOREN LAW OFFICES
EXHIBIT 10.1
Share Purchase Agreement
------------------------
Between Izhak Nakar, I.D. no. 50331339 from Tel Aviv, Israel and Yehezkel
Yeshurun, I.D. no. from Tel Aviv (each of them "Transferor" jointly:
"Transferors") and Top Image Systems Ltd., a company incorporated in Israel with
offices at 2 HaBarzel St., Ramat Hachayal, Tel Aviv, Israel (hereinafter: "TiS"
or the "Company") effective as of November 8, 2001 (the "Effective Date").
Whereas Each of the Transferors is a holder of 495,000 shares in
Emobilis Ltd. (hereinafter: "Emobilis" and "Emobilis
Shares"), a private company incorporated in Israel: and
Whereas Both Transferors wish to transfer all of their Emobilis
Shares to the Company; and
Whereas TiS wishes to purchase the Emobilis Shares from the
Transferors;
NOW, THEREFORE, in consideration of the mutual promises and conditions herein
contained, the parties hereto hereby agree as follows:
1. The Transferors hereby sell, transfer, convey and deliver
(collectively: "Sell") to TiS all of their holdings in Emobilis Ltd.
which include an aggregate of 990,000 (nine hundred and ninety
thousand) ordinary shares and any and all accompanying rights,
preferences and privileges and any and all obligations that they have
as holders of such Emobilis Shares and rights.
2. Transferors hereby deliver to TiS all certificates registered in their
names representing all of the rights, accompanied by share transfer
deeds signed by them evidencing all of the shares sold.
3. In consideration for the Sale of the shares and all rights attached
thereto TiS hereby grants each of the Transferors options to purchase
50,000 TiS ordinary shares for an exercise price of $2 (two US
Dollars) each, under the terms and conditions defined in the Option
Terms attached herein as Exhibit A.
4. With respect to the Shares sold hereunder, the Transferors hereby
represent and warrant that they have good and valid title to, and are
the lawful holders of record and beneficial owners of the Emobilis
Shares and all the rights attached thereto, free and clear of any and
all encumbrances, liens, mortgages and other third party rights of any
nature whatsoever (collectively: "Encumbrances") and that the delivery
by them of the share transfer deeds duly executed will transfer legal,
good, valid and full title to all of the shares sold, free and clear
of any Encumbrances.
5. The Transferors hereby conform their full, irrevocable and
unconditional waiver of any and all rights they have or will have,
with respect to the sale of Emobilis Shares by any other shareholder
of Emobilis, as may be set or granted to them under the corporate
documents of Emobilis, or any other rights under any agreement or
instrument to which they are party, including any rights in any
property, tangible or intangible, of Emobilis or any other rights
whatsoever.
6. The Transferors hereby waive any right, remedy, claim, suit or action
that they now have or might have in the future against Emobilis or any
of its shareholders, arising out of or in connection with the
corporate documents and/or the sale of Emobilis Shares hereunder.
7. All tax liability relating to the grant of and/or the exercise of the
TiS options and the sale of the option shares shall be borne by
Transferors - each for the options received by him. The Company may
make such provisions and take such steps as it may deem necessary or
appropriate for the withholding of all taxes required by law to be
withheld with respect to such grant, exercise or sale, including but
not limited to (i) deducting the amount so required to be withheld
from any amount then or thereafter payable to transferor, and/or (ii)
requiring transferor to pay to the Company the amount to be withheld
as a condition of the issuance and delivery of such Option Shares.
8. Each of the Parties agree to execute all such further instruments and
documents and to take all such further action as any other party may
reasonably require in order to effectuate the terms and purposes of
this Agreement.
9. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If the
final judgment of a court of competent jurisdiction declares that any
term or provision hereof is invalid or unenforceable, the Parties
agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration or
area of the term or provision, to delete specific words or phrases, or
to replace any invalid or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified
after the expiration of the time within which the judgment may be
appealed.
10. This Agreement shall be governed by and construed according to the
laws of the State of Israel. Any dispute arising under or in relation
to this Agreement shall be resolved exclusively by the competent court
in Tel Aviv, Israel and each of the parties hereby irrevocably submits
to the exclusive jurisdiction of such court.
IN WITNESS WHEREOF:
------------------- ------------------------- ----------------------------
/s/ Izhak Nakar /s/ Dan Inbar
------------------- ------------------------- ----------------------------
Izhak Nakar Yehezkel Yeshurun Top Image Systemes
------------------- ------------------------- ----------------------------
By: Dan Inbar
------------------- ------------------------- ----------------------------
Office: President
------------------- ------------------------- ----------------------------
9. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If the
final judgment of a court of competent jurisdiction declares that any
term or provision hereof is invalid or unenforceable, the Parties
agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration or
area of the term or provision, to delete specific words or phrases, or
to replace any invalid or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified
after the expiration of the time within which the judgment may be
appealed.
10. This Agreement shall be governed by and construed according to the
laws of the State of Israel. Any dispute arising under or in relation
to this Agreement shall be resolved exclusively by the competent court
in Tel Aviv, Israel and each of the parties hereby irrevocably submits
to the exclusive jurisdiction of such court.
IN WITNESS WHEREOF:
------------------- ------------------------- ----------------------------
/s/ Dan Inbar
------------------- ------------------------- ----------------------------
Izhak Nakar Yehezkel Yeshurun Top Image Systemes
------------------- ------------------------- ----------------------------
/s/ Yehezkel Yeshurun By: Dan Inbar
Feb. 28 2002
------------------- ------------------------- ----------------------------
Office: TiS
------------------- ------------------------- ----------------------------
Option Terms
------------
Pursuant to the Share Transfer Agreement executed between Top image System Ltd.
(the "Company") and Mr. Izhak Nakar ("Option Holder") and pursuant to the
resolution of the Company's Board of Directors on November 8, 2001, the Company
grants the Option Holder Options according to the following terms and
conditions:
1. Total number of options to be allocated - Fifty Thousand (50,000)
Options each for the purchase of one ordinary share (nominal value NIS
0.01 per share) of the Company.
2. The Exercise Price of each option will be two US dollars ($2). At the
time of any exercise, and as a precondition to such exercise, the full
Exercise Price of the ordinary shares as to which the Option has been
exercised shall be paid to the Company in cash.
3. All of the options shall be vested immediately upon November 8, 2001
(the "Effective Date").
4. The options shall expire three (3) years from the Effective Date and
shall be cancelled and returned to the Company if not exercised by
November 7, 2004 (the "Expiration Date").
5. The options granted herein shall be exercisable in whole or in part at
any time prior to the Expiration Date according to the discretion of
the Option Holder.
6. Options granted herein shall not be assignable or transferable other
than by will or the laws of descent and distribution and shall be
exercisable during the lifetime of the Opinion Holder only by him.
7. The Option Holder, by accepting these options, represents and agrees,
for himself and his transferees by will or the laws of descent and
distribution, that all ordinary shares purchased upon exercise of the
option will be acquired and held in accordance with the restrictions
of the securities laws and regulations prevailing in the United States
as amended and shall not be further transferred except as permitted by
such laws and regulations, that the Company may instruct its transfer
agent to restrict further transfer of said ordinary shares in the
Company's records except upon receipt of satisfactory evidence that
such restrictions have been satisfied, that upon each exercise of any
portion of an option the certificates evidencing said ordinary shares
shall bare an appropriate legend on the face thereof evidencing such
restrictions and that the person entitled to exercise the same shall
furnish evidence satisfactory to the Company to the effect that the
shares of stock are being acquired subject to such restrictions.
8. The transfer of stock received pursuant to the exercise of an option
granted herein is prohibited unless such transfer is exempt from
registration under the Securities Act of 1933, as amended, or a Rule
of Regulation of the Securities and Exchange Commission thereunder, or
unless a registration statement covering such transfer is in effect at
the time the transfer is to occur. The certificates evidencing said
stock shall bear an appropriate legend on the face thereof evidencing
such restrictions.
9. The Option Holder shall not be and shall not have any of the rights or
privileges of a shareholder of the Company with respect to any
Ordinary Shares issuable upon the exercise of such Option unless and
until a certificate or certificates representing such shares shall
have been issued and delivered. No adjustment shall be made for
dividends or other rights for which the record date is prior to the
date such Ordinary Shares certificates are issued. No Ordinary Shares
shall be issued and delivered upon exercise of any Option if, in the
opinion of counsel for the Company, any applicable registration
requirements of the United States Securities Act of 1993, as amended,
and of any rules and regulations of the United States Securities and
Exchange Commission thereunder, any applicable listing requirements of
any securities exchange on which stock of the same class is then
listed, and any other requirements of law or of any regulatory bodies
having jurisdiction over such issuance and delivery, shall not have
been fully complied with.
10. All tax liability relating to the grant and/or exercise of the Options
and the sale of the Option Shares shall be borne by the Option Holder.
The Company may make such provisions and take such steps as it may
deem necessary or appropriate for the withholding of all taxes
required by law to be withheld with respect to such grant, exercise or
sale, including but not limited to (i) deducting the amount so
required to be withheld from any amount then or thereafter payable to
the Option Holder, and/or (ii) requiring the Option Holder to pay to
the Company the amount so be withheld as a condition of the issuance
and delivery of such Option Shares.
SHARE TRANSFER DEED
-------------------
The undersigned Yehezkel Yeshurun (the "Transferor"), for consideration detailed
in the share purchase agreement executed between Transferor and Top Image
Systems Ltd. (the "Agreement"), hereby transfers to Top Image Systems Ltd., a
public company registered in Israel (the "Transferee") [495,000] Ordinary
Shares, par value NIS 0.01 per share, of Emobilis Ltd. (the "Company"), free and
clear of all claims, pledges, encumbrances and restrictions, with no personal
liability attaching to the ownership thereof, and in respect of which the
Transferor is the sole record and beneficial owner, to be held unto the said
Transferee, the beneficiaries of the trust, their executors, administrators,
heirs and assigns, upon all of the terms and conditions subject to which the
Transferor held such shares, and the said Transferee does hereby agree to take
such shares subject to the above terms and conditions.
AS WITNESS our hand as of February 27, 2002
TRANSFEROR:
/s/ Yehezkel Yeshurun
By: Yehezkel Yeshurun
Witness to Signature:
TRANSFEREE:
Top Image Systems Ltd.
/s/ Dan Inbar
Witness to signature
----------------
SHARE TRANSFER FEED
-------------------
The undersigned, Izhak Nakar (the "Transferor"), for consideration detailed in
the share purchase agreement executed between Transferor and Top Image Systems
Ltd. (the "Agreement"), hereby transfers to Top Image Systems Ltd., a public
company registered in Israel (the "Transferee") [495,000] Ordinary Shares, par
value NIS 0.01 per share, of Emobilis Ltd. (the "Company"), free and clear of
all claims, pledges, encumbrances and restrictions, with no personal liability
attaching to the ownership thereof, and in respect of which the Transferor is
the sole record and beneficial owner, to be held unto the said Transferee, the
beneficiaries of the trust, their executors, administrators, heirs and assigns,
upon all of the terms and conditions subject to which the Transferor held such
shares, and the said Transferee does hereby agree to take such shares subject to
the above terms and conditions.
AS WITNESS our hand as of ____________________
TRANSFEROR:
/s/ Izhak Nakar
By: Izhak Nakar
Witness to signature:
TRANSFEREE:
Top Image Systems Ltd.
/s/ Dan Inbar
Witness to signature:
-----------------
EXHIBIT 10.2
Top Image Systems Ltd.
Date:
To: Mr. Thomas C. Lavey,
Re: Chairman Of The Board Appointment
---------------------------------
Dear Mr. Lavey,
This is to set forth the agreement between yourself and Top Image Systems Ltd.
("Company") regarding your appointment to the position of Chairman of the
Company's Board of Directors (the "Board"), as follows:
1. You will serve as the Chairman of the Board (the "Chairman") until
either party terminates this agreement by giving the other party a 90
days' prior written notice; and in any event, only as long as you
shall serve as a member of the Board. Your responsibilities encompass
all of the functions normally expected of a chairman of the board of a
publicly traded company, including but not limited to assisting the
Company in technical and business issues and overseeing preparation of
budgets, ensuring compliance with the Company's By-Laws, SEC and
listing stock exchange regulations; you may be requested to travel
outside your country, on behalf of the Company, to participate in
meetings and negotiations; and in general, to take an active role and
contribute your skills and experience to the furtherance of the
Company and its businesses (hereinafter -"Assistance").
2. In consideration for your Assistance, the Company shall remunerate you
as follows, subject to the approval of the Audit Committee, the Board,
and the Shareholders Assembly:
2.1. An annual amount of $24,000 (twenty four thousand US
Dollars)to be paid in equal installments on a quarterly
basis. You shall be entitled to payment commencing on August
7, 2002.
2.2. An option, exercisable immediately on the Date of Grant, to
purchase 20,000 fully-vested ordinary shares of the Company
at a purchase price equal to the market price of the
Company's shares on the Date of Grant (the "Option"). The
Option shall be subject to and governed by the terms and
conditions, including the date of grant of the Option as
defined in the Option Terms attached hereby as Exhibit A.
2.3. You shall be entitled to reimbursement of all reasonable out
of pocket expenses incurred by you in the performance of
your services hereunder, subject to presenting the Company
with appropriate receipts, and provided further that with
respect to expenses exceeding US $500, you shall obtain the
prior written approval of the Company.
3. All taxes due and payable in connection with the issuance of the
Option and/or of the shares issued thereunder shall be borne by you.
Notwithstanding the above, the Company shall bear any stamp duty
payable with respect to the issuance of such shares.
4. During the term of this Agreement and for a period of 6 months from
the date of termination, for any reason, of your service as Chairman,
you shall not, directly or indirectly:
4.1. carry on or hold an interest in any company, venture, entity
or other business that competes with the Company (a
"Competing Business"), including without limitation as
shareholder, provided however that this provision shall not
preclude you from owning up to five percent (5%) of the
securities of a publicly traded entity that is a Competing
Business; and/or
4.2. serve as a director, consultant, employee or officer or in
any other managerial capacity in a Competing Business.
5. You shall refrain, at all times (including after termination of your
service as Chairman), from disclosing or allowing to be disclosed any
of the Company's confidential and proprietary information, other than
as required for rendering your Assistance and furthering the Company's
businesses;
6. This Agreement and any Exhibits attached hereto, shall constitute the
only agreement between the parties hereto, with regard to the subject
matter hereof, and shall supersede and annul any other previous
written or oral agreements between the parties, with regard to the
subject matter hereof.
7. This Agreement is not an employment agreement and you will be acting
as an independent contractor.
8. Notwithstanding any provision of this Agreement, this Agreement is
subject to the approval of the Audit Committee, Board of Directors and
Shareholders Meeting. In the event that such approvals are not
obtained, this Agreement shall be null and void and neither party
shall be liable for such annulment.
If the foregoing accurately sets forth our agreement, please indicate so by
signing and returning to us the enclosed copy of this letter.
Very Truly yours,
Top Image Systems Ltd.
By: ______________
Title:_____________
Today, the ___ day of ______, 2002, I hereby confirm and approve:
Thomas C. Lavey _________________ I. D. no. ______________
Exhibit A
---------
To Letter of Appointment as Chairman of the Board
-------------------------------------------------
Option Terms
------------
Pursuant to the Letter of Appointment as Chairman of the Board (the
"Agreement"), executed between Top Image Systems Ltd. (the "Company")and Mr.
Thomas C. Lavey ("Option Holder") and subject to the approval of the Agreement
by the Audit Committee, Board of Directors and Shareholders of the Company, the
Company grants the Option Holder Options according to the following terms and
conditions:
1. Total number of options to be allocated -Twenty Thousand (20,000)
Options each for the purchase of one ordinary share (nominal value NIS
0.04 per share) of the Company.
2. The Exercise Price of each option will be the market price at the time
of grant. At the time of any exercise, and as a precondition to such
exercise, the full Exercise Price of the ordinary shares as to which
the Option has been exercised shall be paid to the Company in cash.
3. All of the options shall be granted and vested on November 26, 2002
(the "Effective Date").
4. The options shall expire seven (7) years from the Effective Date and
shall be cancelled and returned to the Company if not exercised by
November 26, 2009. Notwithstanding the aforesaid, in the event that
the services of Option Holder to the Company shall be terminated for
any reason, the Option shall expire ninety (90) days from the
termination date (the "Expiration Date").
5. The options granted herein shall be exercisable in whole or in part at
any time prior to the Expiration Date according to the discretion of
the Option Holder.
6. Options granted herein shall not be assignable or transferable other
than by will or the laws of descent and distribution and shall be
exercisable during the lifetime of the Option Holder only by him.
7. The Option Holder, by accepting these options, represents and agrees,
for himself and his transferees by will or the laws of descent and
distribution, that all ordinary shares purchased upon exercise of the
option will be acquired and held in accordance with the restrictions
of the securities laws and regulations prevailing in the United States
as amended and shall not be further transferred except as permitted by
such laws and regulations, that the Company may instruct its transfer
agent to restrict further transfer of said ordinary shares in the
Company's records except upon receipt of satisfactory evidence that
such restrictions have been satisfied, that upon each exercise of any
portion of an option the certificates evidencing said ordinary shares
shall bare an appropriate legend on the face thereof evidencing such
restrictions and that the person entitled to exercise the same shall
furnish evidence satisfactory to the Company to the effect that the
shares of stock are being acquired subject to such restrictions.
8. The transfer of stock received pursuant to the exercise of an option
granted herein is prohibited unless such transfer is exempt from
registration under the Securities Act of 1933, as amended, or a Rule
of Regulation of the Securities and Exchange Commission thereunder, or
unless a registration statement covering such transfer is in effect at
the time the transfer is to occur. The certificates evidencing said
stock shall bear an appropriate legend on the face thereof evidencing
such restrictions.
9. The Option Holder shall not be and shall not have any of the rights or
privileges of a shareholder of the Company with respect to any
Ordinary Shares issuable upon the exercise of such Option unless and
until a certificate or certificates representing such shares shall
have been issued and delivered. No adjustment shall be made for
dividends or other rights for which the record date is prior to the
date such Ordinary Shares certificates are issued. No Ordinary Shares
shall be issued and delivered upon exercise of any Option if, in the
opinion of counsel for the Company, any applicable registration
requirements of the United States Securities Act of 1933, as amended,
and of any rules and regulations of the United States Securities and
Exchange Commission thereunder, any applicable listing requirements of
any securities exchange on which stock of the same class is then
listed, and any other requirements of law or of any regulatory bodies
having jurisdiction over such issuance and delivery, shall not have
been fully complied with.
10. All tax liability relating to the grant and/or exercise of the Options
and the sale of the Option Shares shall be borne by the Option Holder.
The Company may make such provisions and take such steps as it may
deem necessary or appropriate for the withholding of all taxes
required by law to be withheld with respect to such grant, exercise or
sale, including but not limited to (i) deducting the amount so
required to be withheld from any amount then or thereafter payable to
the Option Holder, and/or (ii) requiring the Option Holder to pay to
the Company the amount so be withheld as a condition of the issuance
and delivery of such Option Shares.
EXHIBIT 23.1
[Letterhead of Somekh Chaikin]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Top Image Systems Ltd.
Tel Aviv
Israel
We hereby consent to the incorporation by reference in the Registration
statement of Top Image Systems Ltd. on Form S-8 of our report dated March 5,
2002, relating to the consolidated balance sheet of Top Image Systems Ltd. and
its consolidated subsidiaries as of December 31, 2000 and 2001 and the related
consolidated statements of operations, shareholders' equity and cash flows for
each of the years in the three-year period ended December 31, 2001, which report
appears in the Annual Report on Form 20-F of Top Image Systems Ltd. for the
fiscal year ended December 31, 2001.
/s/ Somekh Chaikin
------------------
Somekh Chaikin
Certified Public Accountants (Isr.)
(A member firm of KPMG International)
December 19, 2002
EXHIBIT 23.2
[Letterhead of Kost, Forer and Gabbay]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Top Image Systems Ltd.
Tel Aviv
Israel
We consent to the incorporation by reference of our report dated February 12,
2002, relating to the balance sheets of E-Mobilis Ltd as of December 31, 2001
and the related statements of operations, changes in shareholders' deficiency
and cash flows for the year ended December 31, 2001, included in Top Image
Systems Ltd.'s Annual Report on Form 20-F for the fiscal year ended December 31,
2001, into this Registration Statement relating to the Top Image Systems Ltd.
Employee Share Option Plan (2000) and the Share Purchase Agreement dated
November 8, 2001, by and between Top Image Systems Ltd., Izhak Nakar and
Yehezkel Yeshurun and the Letter of Appointment of the Chairman of the Board,
effective November 26, 2002.
/s/ Kost, Forer and Gabbay
--------------------------
Kost, Forer and Gabbay
Tel Aviv, Israel
December 19, 2002