EXHIBIT 10.1
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (the "Agreement") is executed to be
effective as of February 15, 2006 (the "Effective Date") by and between Island
Pacific, Inc., a Delaware corporation ("Purchaser" or the "Company"), and The
Sage Group plc, a company organized under the laws of England and Wales
("Seller"), as follows:
1. RECITALS.
1.1. Seller is the owner of 141,000 of Series A Convertible
Preferred Stock, par value $0.0001 (the "Series A Stock"), 8,923,915 shares of
the common stock, par value $0.0001 (the "Common Stock") (the Common Stock
together with the Series A Stock, the "Shares") and an option to purchase 71,812
shares of Common Stock (the "Option") of the Company.
1.2. Upon the terms and conditions set forth in this
Agreement, Seller desires to sell and Purchaser desires to repurchase the Shares
and any shares of Common Stock issued upon conversion of the Series A Stock (the
"Conversion Shares") owned by Seller.
2. CONSIDERATION.
2.1. PURCHASE AND SALE. Seller agrees to sell and Purchaser
agrees to re-purchase from Seller the Shares and the Conversion Shares upon the
terms and conditions set forth in this Agreement.
2.2. PURCHASE PRICE AND PAYMENTS. Purchaser shall repurchase
the Shares, and the Conversion Shares from Seller, free and clear of security
interests, liens, encumbrances, liabilities or adverse claims (other than as may
have been created by or attached to Purchaser) for cash consideration of Seven
Hundred Fifty Thousand Dollars ($750,000) (the "Purchase Price"). The Purchase
Price shall be paid in monthly payments of One Hundred Thousand Dollars
($100,000) by the last day of each month for seven consequent months and in the
eighth month an additional payment of Fifty Thousand Dollars ($50,000) (the
"Payment" or the "Payments"). The Payments shall commence on the Effective Date.
Interest on the unpaid Payments shall accrue beginning on the Effective Date at
a rate of six percent (6%) per annum. Accrued interest shall be due and payable
on the date the last Payment is made by Purchaser to Seller in satisfaction of
the Purchase Price, as set forth in this Section 2.2. The Company has the right
from time to time to prepay, without premium or penalty; all or part of the
outstanding Payments and accrued interest to the date of prepayment on the
amount being prepaid. In consideration for the Purchase Price, Seller also
agrees to cancel the Option as set forth in Section 3 herein.
The Payments shall be paid by Company wire transfer to a bank
account designated by Seller at the Closing.
3. CLOSING AND CLOSING DATE. The closing for the transaction (the
"Closing") shall take place at the offices of the Xxxxxxx Xxxx Seidenwurm &
Xxxxx, LLP, 000 X Xxxxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx 00000 on the
Effective Date (the "Closing Date"). At the Closing, Purchaser shall deliver to
Seller the first Payment. Seller shall return the documentation for the Option
marked cancelled by Seller, if the Option is evidenced by a written instrument;
provided that, if the Option is not evidenced by a written instrument the Seller
shall execute an assignment separate from certificate in substantially the form
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attached hereto as EXHIBIT A (the "Assignment"). Upon receipt of either the
documentation for the Option or the Assignment, the Company shall be entitled to
cancel the Option in its books and records. Seller shall retain the share
certificates for the Shares and shall retain record title to the Shares as
security until all Payments, including accrued interest, are made. The Company
shall not transfer record title to the Shares in its books and records until the
last Payment is made. On the day the last Payment is paid, including all accrued
interest, Seller shall deliver the share certificates for the Shares executed
for transfer.
4. VOTING RIGHTS. Starting on the Closing Date, Seller will exercise
its voting rights in accordance with the voting agreement, dated as of the date
hereof, by and between Purchaser and Seller, attached to this Agreement as
EXHIBIT B (the "Voting Agreement").
5. COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER. Seller for the
benefit of Purchaser, warrants, represents and agrees as follows:
5.1. STOCK OWNERSHIP. Seller is the record and beneficial
owner of the Shares, any Conversion Shares and the Option which are free and
clear of all liens, encumbrances, security interests, options, equities and
restrictions on transfer and Seller has the legal power and authority to sell,
transfer and deliver the Shares, Conversion Shares and the Option pursuant to
this Agreement without the necessity of obtaining the consent of any person or
entity.
5.2. OTHER AGREEMENTS. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby, nor
compliance by Seller with any of the provisions hereof, will:
5.2.1. violate, conflict with, result in a breach of
any provisions of, constitute a default (or prevent a default which, with notice
or lapse of time or both, would constitute a default) under, or result in the
termination of, accelerate the performance required by or result in the creation
of any lien, security interest, charge or encumbrance upon any of the Shares
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease or other instrument or obligation to
which any Seller is a party, or by which Seller or any of Seller's properties or
assets may be bound or affected, other than any consent required to be obtained
from Midsummer Investments Limited; or
5.2.2. violate any order, writ, injunction, decree,
or any statute, rule or regulation, applicable to Seller or any of Seller's
properties or assets.
5.3. ENFORCEABILITY. This Agreement, and the agreements and
instruments referred to in this Agreement, each constitute valid and legally
binding obligations of Seller and are enforceable in accordance with their
respective terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
6. COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
for the benefit of Seller, warrants, represents, covenants and agrees as
follows:
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6.1. AUTHORITY AND VALIDITY. Purchaser has the corporate power
and authority to execute, deliver and perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement has been
duly authorized by the Board of Directors of Purchaser and no further corporate
action on the part of Purchaser is necessary to authorize this Agreement and the
performance of the transactions contemplated hereby.
6.2. OTHER AGREEMENTS; CONSENTS. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby, nor compliance by Purchaser with any of the provisions hereof, will:
6.2.1. violate any order, writ, injunction, decree,
or any statute, rule or regulation, applicable to Purchaser or any of
Purchaser's properties or assets;
6.2.2. require the approval or consent of any third
party or governmental entity;
6.2.3. contravene any provision of Purchaser's
Certificate of Incorporation or Bylaws; or
6.2.4. violate or conflict with any provision of an
agreement or other instrument or obligation to which Purchaser is a party or by
which it may be bound or affected.
6.3. NO IMPAIRMENT. The capital of Purchaser is not impaired
and will not become impaired as a result of the purchase of the Shares by
Purchaser, within the meaning of Section 160(a) (1) of the Delaware General
Corporation Law, as amended (the "DGCL") and the capital of Purchaser would not
become impaired, within the meaning of Section 160(a) (1) of the DGCL, in the
event the obligations of Purchaser to purchase the Shares under this Agreement
were accelerated and Purchaser purchased all Shares owned by Seller at the
applicable purchase price specified in Section 2.2 on the date hereof.
6.4. ENFORCEABILITY. This Agreement, and the agreements and
instruments referred to in this Agreement, each constitute valid and legally
binding obligations of Purchaser and are enforceable in accordance with their
respective terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
6.5. NO ACTION. There is no action, suit, proceeding or to the
knowledge of Purchaser, investigation pending or currently threatened against
Purchaser that questions the validity of this Agreement and the agreements and
instruments referred to in this Agreement, or the right of Purchaser to enter
into this Agreement, or to consummate the transactions contemplated hereby or
thereby, nor is Purchaser aware that there is any basis for the foregoing.
7. ANCILLARY COVENANTS.
7.1. CONFIDENTIAL INFORMATION. For a period of two (2) years
beginning on the Effective Date, Seller agrees that Seller will not disclose to
any unauthorized persons or use for his own account or for the benefit of any
third party any Confidential Information, without the Company's written consent.
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As used herein Confidential Information means any material, information or data
which the Company has identified as "confidential" or which a reasonable person
being apprised of all relevant facts would conclude is intended to be
confidential, including but not limited to: (a) proprietary, technical,
developmental, marketing, sales, operating, planning, cost, pricing, customer or
supplier information, methodologies, employee information; (b) business
practices or relationships; (c) products, systems, discoveries, designs, ideas,
concepts, inventions, technical know-how, software source codes and all
record-bearing media containing such information; provided, however, that
Confidential Information shall not include any information which (i) is in the
public domain and is readily available as of the Closing Date or which hereafter
enters the public domain and becomes readily available, through no improper
action by Seller, (ii) was in the possession of Seller or known by Seller prior
to receipt from Purchaser, (iii) was rightfully disclosed to Seller by a third
party without restriction, (iv) is independently developed by Seller without use
of or reliance on Confidential Information disclosed by Purchaser or (v) is
required to be disclosed by law, valid legal process or by any listing agreement
with or listing rules of a national securities exchange or trading market or
inter-dealer quotation system or by the listing rules of The London Stock
Exchange.
7.2. INJUNCTIVE RELIEF. Without limiting the right of
Purchaser to pursue all other legal and equitable rights available for violation
of Section 7.1 by Seller, it is agreed that other remedies cannot fully
compensate Purchaser for such a violation and that Purchaser shall be entitled
to seek injunctive relief without bond to prevent violation or continuing
violation thereof.
7.3. RELEASE. Beginning on the day that all Payments,
including accrued interest, required hereunder have been paid in full by
Purchaser to Seller and record title to the Shares and Conversion Shares has
been transferred to the Purchaser by Seller, Seller and Purchaser shall release
each other and their respective officers, directors, shareholders, agents,
attorneys, representatives, employees, affiliated entities, successors and
assigns from any and all claims or liabilities whether known or unknown,
existing or pre-existing arising directly or indirectly from any omissions, acts
or facts that have occurred up until and including the date the last Payment is
made, including, without limitation, in any manner related to the Shares and the
Option including, with respect to Seller, related to Seller's rights as a
shareholder of the Company or otherwise.
7.4. SECTION 1542 WAIVER. Each of Seller and the Company
understand and acknowledge that after execution of this Agreement it may incur
or suffer loss, damage or injuries which are in some way caused by or related to
the matters released in this Agreement, but which are unknown or unanticipated
at the time this Agreement is executed. Further there is a risk that loss or
damage presently known may be or become greater than any party now expects or
anticipates. Seller and the Company therefore expressly waive all rights under
Section 1542 of the California Civil Code which provides as follows and any
similar state or federal law which may be applicable:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with debtor.
8. ACTIONS PRIOR TO CLOSING. The parties each agree and covenant to use
their best efforts and to cooperate fully to assure that all actions which are
necessary or appropriate in order to consummate the transaction contemplated by
this agreement are accomplished in the manner and at the times set forth in this
Agreement.
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9. DEFAULT; TERMINATION
9.1. DEFAULT. If either party materially defaults in the
performance of any provision of this Agreement, then the non-defaulting party
may give written notice to the defaulting party that if the default is not cured
within thirty (30) days, the Agreement will be terminated. If the defaulting
party fails to cure the default within such thirty (30) day period and (a)
Seller is the defaulting party, Purchaser may terminate this Agreement and shall
be deemed to have purchased and Seller shall be deemed to have sold and shall
deliver to Purchaser share certificates representing the number of Shares
determined by multiplying (w) the total number of Shares (treating the Series A
Stock as if it has been converted to Common Stock for the purposes of the
calculation) by (x) the quotient determined by dividing (y) the total of the
Payments made at the time of termination of this Agreement by (z) the Purchase
Price; or (b) Purchaser is the defaulting party, Seller shall have the option to
either (i) rescind the sale and return the total Payments received by Seller at
the time of termination less an amount equal to Seller's reasonable costs
incurred in connection with the Agreement plus a termination payment equal to
thirty percent (30%) of the total Payments received by Seller at the time of
termination or (ii) to retain all of the Payments received by Seller at the time
of termination and deliver to Purchaser share certificates representing the
number of Shares determined by multiplying (w) the total number of Shares
(treating the Series A Stock as if it has been converted to Common Stock for the
purposes of the calculation) by (x) the quotient determined by dividing (y) the
total of the Payments made at the time of termination of this Agreement by (z)
the Purchase Price.
9.2. TERMINATION. The parties shall be entitled to terminate
this Agreement by mutual agreement of the parties.
10. MISCELLANEOUS PROVISIONS.
10.1. GOVERNING LAW; JURISDICTION. This Agreement is governed
by and construed in accordance with the laws of the State of California,
irrespective of California's choice-of-law principles. The parties irrevocably
consent to the exclusive jurisdiction of the state and federal courts located in
San Diego County, California for the purpose of any action brought in connection
with this Agreement.
10.2. COUNTERPARTS AND EXHIBITS. This Agreement may be
executed in counterparts, each of which is deemed an original and all of which
together constitute one document. All exhibits attached to and referenced in
this Agreement are incorporated into this Agreement.
10.3. MODIFICATION. This Agreement may be modified only by a
contract in writing executed by the party to this Agreement against whom
enforcement of the modification is sought.
10.4. HEADINGS. The section headings in this Agreement: (a)
are included only for convenience, (b) do not in any manner modify or limit any
of the provisions of this Agreement, and (c) may not be used in the
interpretation of this Agreement.
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10.5. PRIOR UNDERSTANDINGS. This Agreement and all documents
specifically referred to and executed in connection with this Agreement: (a)
contain the entire and final agreement of the parties to this Agreement with
respect to the subject matter of this Agreement, and (b) supersede all
negotiations, stipulations, understandings, agreements, representations and
warranties, if any, with respect to such subject matter, which precede or
accompany the execution of this Agreement.
10.6. INTERPRETATION. Whenever the context of this Agreement
requires, all words used in the singular shall be construed to have been used in
the plural, and vice versa, and the use of any gender specific pronoun shall
include any other appropriate gender. The term "person" shall refer to any
individual, corporation or legal entity having standing to bring an action in
its own name under applicable state law. The conjunctive "or" shall mean
"and/or" unless otherwise required by the context in which the conjunctive "or"
is used. Each party has had the opportunity to be represented by independent
legal counsel and hereby waives any benefit under any rule of law or legal
decision that would require interpretation of any ambiguities in this Agreement
against the party drafting it. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the purposes of the parties and
this Agreement.
10.7. PARTIAL INVALIDITY. Each provision of this Agreement is
valid and enforceable to the fullest extent permitted by law. If any provision
of this Agreement (or the application of such provision to any person or
circumstance) is or becomes invalid or unenforceable, the remainder of this
Agreement, and the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected by such invalidity or unenforceability.
10.8. SUCCESSORS-IN-INTEREST AND ASSIGNS; ASSIGNMENT. This
Agreement is binding upon and inures to the benefit of the
successors-in-interest and assigns of each party to this Agreement. This
Agreement and the rights, interests and obligations hereunder may not be
assigned by either party without the prior written consent of the other party
hereto.
10.9. NOTICES. All notices or other communications required or
permitted to be given to a party to this Agreement shall be in writing and shall
be personally delivered, sent by fax, or sent by an express courier service that
provides written confirmation of delivery, such as United Parcel Service,
Federal Express or DHL, to such party at its address as set forth below its
signature to this Agreement. Each such notice or other communication shall be
deemed given, delivered and received upon its actual receipt, except that if it
is sent by express courier service in accordance with this Section, then it
shall be deemed given, delivered and received three days after the date such
notice or other communication is deposited with the express courier service in
accordance with this Section. Any party to this Agreement may give a notice of a
change of its address to the other party to this Agreement.
10.10. WAIVER. Any waiver of a default or provision under this
Agreement must be in writing. No such waiver constitutes a waiver of any other
default or provision concerning the same or any other provision of this
Agreement. No delay or omission by a party in the exercise of any of its rights
or remedies constitutes a waiver of (or otherwise impairs) such right or remedy.
A consent to or approval of an act does not waive or render unnecessary the
consent to or approval of any other or subsequent act.
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10.11. SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS,
ETC. All representations, warranties, covenants and agreements of the parties
contained in this Agreement, or in any instrument, certificate or other writing
provided for in it, shall survive the Closing.
10.12. FURTHER ACTS. Following the Closing, each party agrees
to perform such further acts and execute, acknowledge and deliver such further
instruments as may be reasonably requested by any other party to further
document or effectuate the transactions contemplated by this Agreement.
10.13. ATTORNEY'S FEES. In the event any litigation,
arbitration, mediation, or other proceeding ("Proceeding") is initiated by any
party against any other party to enforce, interpret or otherwise obtain judicial
or quasi judicial relief in connection with this Agreement, the prevailing party
in such Proceeding shall be entitled to recover from the unsuccessful party all
costs, expenses, reasonable attorney's and expert witness fees, relating to or
arising out of (1) such Proceeding (whether or not such Proceeding proceeds to
judgment), and (2) any post judgment or post award proceeding including without
limitation one to enforce any judgment or award resulting from any such
Proceeding.
[Signatures on following page]
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SELLER:
THE SAGE GROUP PLC
a company organized under the laws of England and Wales
By: /S/ XXXX XXXXXXXX
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Finance Director
Address: Attn: General Counsel
Xxxxx Xxxx
Xxxxxxxxx xxxx Xxxx
XX00 0XX
Xxxxxxx
Facsimile: x00 (000) 000-0000
PURCHASER:
ISLAND PACIFIC, INC.
a Delaware corporation
/S/ XXXXX XXXXXXXXX
----------------------------------------
Xxxxx Xxxxxxxxx, Chief Executive Officer
Address: Attn: Xxxxx Xxxxxxxxx
00000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
ASSIGNMENT SEPARATE FROM CERTIFICATE
For value received, The Sage Group, plc, a company organized under the
laws of England and Wales ("Sage"), assigns and transfers to Island Pacific,
Inc., a Delaware corporation (the "Company"), its option to purchase Seventy-One
Thousand Eight Hundred Twelve (71,812) shares of the Company's Common Stock (the
"Option"), standing in Sage's name on the books of the Company and does hereby
irrevocably constitute and appoint each and every officer of the Company, as
attorney-in-fact solely for purposes of recording the transfer and/or
cancellation of the Option on the books of the Company with full power of
substitution.
THE SAGE GROUP, PLC
a company organized under the laws
of England and Wales
Dated Effective: ________________ By:
--------------------------------
Name:
------------------------
Title:
------------------------
EXHIBIT B
VOTING AGREEMENT
