TAG-IT PACIFIC, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "AGREEMENT") is made and entered into as of this
15th day of December, 2000, by and among Tag-It Pacific, Inc., a Delaware
corporation (the "COMPANY"), Azteca Production International, Inc. ("AZTECA"),
Xxxxxx Xxxx, Xxxx Xxxx, Commerce Investment Group, LLC, Azteca Production
International, Inc., AZT International SA D RL and all other affiliates of these
entities (collectively, the "GUEZ GROUP") and Xxxxx Xxxx ("DYNE").
WITNESSETH
WHEREAS, upon consummation of the transactions contemplated by that certain
Supply Agreement, dated as of the date hereof (the "SUPPLY AGREEMENT"), the Guez
Group has acquired 1,000,000 shares of common stock of the Company par value
$.001;
WHEREAS, Dyne is the beneficial owner of [ ] shares of the Company's Common
Stock, par value $.001 (the "DYNE SHARES").
WHEREAS, as incentive to the consummation of the transactions contemplated
by the Supply Agreement, the Company, Dyne, and Guez Group have agreed to
provide for the future voting of their shares of the Company's capital stock as
set forth below.
WHEREAS, any capitalized term not defined herein shall be as defined in the
Investor Rights Agreement executed as of this date.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. VOTING.
1.1 GUEZ SHARES; VOTING.
(a) Each member of the Guez Group agrees to hold all shares of Common Stock
registered in its respective name or beneficially owned by them (as of the date
hereof and including any other shares of Common Stock of the Company legally or
beneficially acquired by them after the date hereof (hereinafter collectively
referred to as the "GUEZ SHARES") subject to, and to vote the Guez Shares in
accordance with, the provisions of this Agreement.
(b) In the event that the shareholders of the Company are asked to take any
action or vote on any issue or proposal (a "VOTE") each member of the Guez Group
agrees (i) prior to any Vote, to provide Dyne with five days written notice of
such Vote, specifying the relevant provisions and terms of such Vote and (ii) to
vote all Guez Shares, and cause all Guez Shares which
each beneficially holds to be voted, in accordance with the express instructions
of Dyne with respect to such Vote.
1.2 LEGEND.
(a) Concurrently with the execution of this Agreement, there shall be
imprinted or otherwise placed, on certificates representing the Guez Shares, the
following restrictive legend (the "LEGEND"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A VOTING AGREEMENT WHICH PLACES CERTAIN
RESTRICTIONS ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY
PERSON ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO
AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH
AGREEMENT. A COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO
THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN
REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS."
(b) The Company agrees that, during the term of this Agreement, it will not
remove, and will not permit to be removed (upon registration of transfer,
reissuance of otherwise), the Legend from any such certificate and will place or
cause to be placed the Legend on any new certificate issued to represent Guez
Shares represented by a certificate carrying the Legend.
1.3 SUCCESSORS. The provisions of this Agreement shall be binding upon the
successors in interest to any of the Guez Shares. Except in the event of (i) a
sale for value of Guez Shares to a bona fide third party purchaser which is not
an Affiliate of the Guez Group which sale occurs twenty-four months after the
issuance of the Guez Shares or (ii) a sale of Guez Shares following a
foreclosure on the entire business of one of the principal entities of the Guez
Group resulting from a bona fide pledge of the Guez Shares to a financial
institution so long as the financial institution complies with the Company's
first refusal right in that certain Right of First Refusal and Sale Agreement
dated the date hereof (the "Right of First Refusal Agreement"), the Company
shall not permit the transfer of the Guez Shares on its books or issue a new
certificate representing any of the Guez Shares unless and until the person to
whom such security is to be transferred shall have executed a written agreement,
substantially in the form of this Agreement, pursuant to which such person
becomes a party to this Agreement and agrees to be bound by all the provisions
hereof as if such person were a member of the Guez Group. However, in the case
of a transferee of the Guez Group in a private sale pursuant to Section 2.2(a)
of Right of First Refusal Agreement, such voting obligation shall end
twenty-four months from the date of original share issuance.
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2. TERMINATION.
2.1 This Agreement shall continue in full force and effect from the date
hereof through the earliest of the following dates, on which date it shall
terminate in its entirety:
(a) ten (10) years from the date of this Agreement; or
(b) the date as of which the parties hereto terminate this Agreement by
written consent of Dyne and Xxxxxx Xxxx.
3. MISCELLANEOUS.
3.1 OWNERSHIP. Each member of the Guez Group represents and warrants to
Dyne that (a) subsequent to the consummation of the transactions contemplated by
the Supply Agreement, it will own the Guez Shares, free and clear of liens or
encumbrances, and has not, prior to or on the date of this Agreement, executed
or delivered any proxy or entered into any other voting agreement or similar
arrangement other than one which has expired or terminated prior to the date
hereof, and (b) it has full power and capacity to execute, deliver and perform
this Agreement, which has been duly executed and delivered by, and evidences the
valid and binding obligation of it enforceable in accordance with its terms.
3.2 SPECIFIC PERFORMANCE. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Agreement and agree that the terms
of this Agreement shall be specifically enforceable. If any party hereto or his
heirs, personal representatives, or assigns institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein that
such party or such personal representative has an adequate remedy at law, and
such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
3.3 GOVERNING LAW. This Agreement, and the rights of the parties hereto,
shall be governed by and construed in accordance with the laws of the State of
California as such laws apply to agreements among California residents made and
to be performed entirely within the State of California.
3.4 AMENDMENT OR WAIVER. This Agreement may be amended (or provisions of
this Agreement waived) only by an instrument in writing signed by the Company,
Dyne and Xxxxxx Xxxx on behalf of the Guez Group. Any amendment or waiver so
effected shall be binding upon the Company, each of the parties hereto and any
assignee of any such party.
3.5 SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
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3.6 SUCCESSORS. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
3.7 ADDITIONAL SHARES. In the event that subsequent to the date of this
Agreement any shares or other securities are issued on, or in exchange for, any
of the Guez Shares, by reason of conversion, exchange, any stock dividend, stock
split, combination of shares, reclassification or the like, such shares or
securities shall be deemed to be Guez Shares for purposes of this Agreement.
3.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same agreement.
3.9 WAIVER. No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
3.10 ATTORNEY'S FEES. In the event that any suit or action is instituted to
enforce any provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
3.11 NOTICES. Any notices required in connection with this Agreement shall
be in writing and shall be deemed effectively given: (i) upon personal delivery
to the party to be notified, (ii) when sent by confirmed facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written notification of receipt. All notices shall be addressed to the
holder appearing on the books of the Company or at such address as such party
may designate by ten (10) days advance written notice to the other parties
hereto.
3.12 ENTIRE AGREEMENT. This Agreement, along with the Supply Agreement, and
each of the Exhibits thereto and all transactions contemplated thereby,
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof and no party shall be liable or
bound to any other in any manner by any representations, warranties, covenants
and agreements except as specifically set forth herein and therein.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this VOTING AGREEMENT
as of the date first above written.
COMPANY:
TAG IT PACIFIC, INC.
/S/ XXXXX XXXX
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Xxxxx Xxxx, CEO
AZTECA PRODUCTION INTERNATIONAL, INC.
/S/ XXXXXX XXXX
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Xxxxxx Xxxx, CEO
XXXXXX XXXX
/S/ XXXXXX XXXX
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XXXX XXXX
/S/ XXXX XXXX
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COMMERCE INVESTMENT GROUP, LLC
/S/ XXXXXX XXXX
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AZT INTERNATIONAL SA D RL
/S/ XXXXXX XXXX
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