EXHIBIT 99.1
VOTING AGREEMENT
This Voting Agreement (this "Agreement") dated the 20th day of
November, 2003, by and among Island Pacific, Inc., a Delaware corporation
("IPI"), Xxxxxxxx Xxxx and Xxxxx Xxxxxx (collectively, the "Stockholders").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Agreement and Plan of Merger (the "Merger Agreement"), dated November 20,
2003, among IPI, IPI Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of IPI ("Merger Sub"), and Page Digital Incorporated, a Colorado
corporation ("Page").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Stockholders "beneficially own" (as
such term is defined in Rule 13d-3 promulgated under the Exchange Act)
(including entitlement to dispose of (or to direct the disposition of) and to
vote (or to direct the voting of)) 4,811,760 shares of common stock, par value
$0.01 per share (the "Common Stock"), of Page (such shares of Common Stock,
together with any other shares of Common Stock the voting power over which is
directly or indirectly acquired by any Stockholder until the termination of this
Agreement pursuant to the terms hereof, are collectively referred to herein as
the "Subject Shares");
WHEREAS, IPI, Merger Sub, and Page have entered into the Merger
Agreement, pursuant to which Page will merge with and into Merger Sub, with
Merger Sub surviving as a wholly-owned subsidiary of IPI (the "Merger"); and
WHEREAS, as a condition to the willingness of IPI to close the Merger,
and as an inducement and in consideration therefor, the Stockholders are
executing this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.1 OTHER DEFINITIONS. For purposes of this Agreement:
(a) "AFFILIATE" means, with respect to any specified Person,
any Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified.
(b) "PERSON" means an individual, corporation, limited
liability company, general or limited partnership, association, trust,
unincorporated organization, other entity or group.
(c) "REPRESENTATIVE" means, with respect to any particular
Person, any director, officer, employee, accountant, consultant, legal counsel,
investment banker, advisor, agent or other representative of such Person.
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ARTICLE II
VOTING AGREEMENT
Section 2.1 AGREEMENT TO VOTE THE SUBJECT SHARES.
(a) From and after the date hereof, at any meeting of Page's
stockholders (or any adjournment or postponement thereof), however called, or in
connection with any action by written consent or other action of Page's
stockholders, the Stockholders shall vote (or cause to be voted) all of the
Subject Shares:
(i) in favor of the adoption and approval of the
terms of the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement (and any actions required in furtherance
thereof);
(ii) against any action, proposal, transaction or
agreement that would directly or indirectly result in a breach of any covenant,
representation, warranty or other obligation or agreement of Page set forth in
the Merger Agreement or of the Stockholders set forth in this Agreement; and
(iii) except with the prior written consent of IPI,
against the following actions or proposals (other than the transactions
contemplated by the Merger Agreement): (a) any Alternative Proposal; (b) any
change in the persons who constitute the board of directors of Page; (c) any
material change in the present capitalization of Page or any amendment of Page's
certificate of incorporation or bylaws; (d) any other material change in Page's
corporate structure or business; or (e) any other action or proposal involving
Page or any of its subsidiaries that is intended, or would reasonably be
expected, to prevent, impede, interfere with, delay, postpone or adversely
affect the transactions contemplated by the Merger Agreement.
(b) Any such vote shall be cast or consent shall be given in
accordance with such procedures relating thereto so as to ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Each Stockholder agrees not to
enter into any agreement or commitment with any Person the effect of which would
violate or be inconsistent with the provisions and agreements set forth in this
Article II.
ARTICLE III
STANDSTILL AND NO-SOLICITATION
Section 3.1 STANDSTILL. The Stockholders hereby agree that, from and
after the date hereof, the Stockholders and their Affiliates shall not, directly
or indirectly, unless (i) specifically requested by IPI or (ii) expressly
contemplated by the terms of this Agreement or the Merger Agreement:
(a) Sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of (collectively, a "Transfer"), or enter into any contract,
option or other agreement with respect to, or consent to, a Transfer of, any or
all of the Subject Shares;
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(b) Acquire, offer to acquire, or agree to acquire, directly
or indirectly, by purchase or otherwise, any securities or direct or indirect
rights to acquire Common Stock or any other securities of Page, or any assets of
Page or any subsidiary or division thereof;
(c) Make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are used in the rules
of the Securities and Exchange Commission) to vote (including by consent), or
seek to advise or influence any person or entity with respect to the voting of,
any voting securities of Page (including, without limitation, by making publicly
known your position on any matter presented to stockholders), other than to
recommend that stockholders of Page vote in favor of the Merger and the Merger
Agreement;
(d) Submit to Page any stockholder proposal under Rule 14a-8
under the Exchange Act;
(e) Make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any extraordinary
transaction involving Page or its securities or assets;
(f) Form, join or in any way participate in a "group" (as
defined in Section 13(d)(3) under the Exchange Act) in connection with any of
the foregoing;
(g) Seek in any way, directly or indirectly, to have any
provision of this Section 3.1 amended, modified or waived; or
(h) Otherwise take, directly or indirectly, any actions with
the purpose or effect of avoiding or circumventing any provision of this Section
3.1 or which could reasonably be expected to have the effect of preventing,
impeding, interfering with or adversely affecting the consummation of the
transactions contemplated by the Merger Agreement or its ability to perform its
obligations under this Agreement.
Section 3.2 DIVIDENDS, DISTRIBUTIONS, ETC. In the event of a stock
dividend or distribution, or any change in the Common Stock by reason of any
stock dividend or distribution, split-up, recapitalization, combination,
exchange of shares or the like, the term "Subject Shares" shall be deemed to
refer to and include the Subject Shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of the
Subject Shares may be changed or exchanged or which are received in such
transaction.
Section 3.3 ALTERNATIVE PROPOSALS.
(a) The Stockholders shall not, and they shall cause their
Representatives not to, directly or indirectly initiate, solicit, or knowingly
encourage any inquiries or the making or implementation of any Alternative
Proposal or participate in any discussions or negotiations concerning, or
provide any confidential information or data to, or have any discussions with,
any Person relating to an Alternative Proposal, or otherwise facilitate any
effort or attempt to make or implement an Alternative Proposal.
(b) The Stockholders shall promptly advise IPI of any request
for information or the submission or receipt of any Alternative Proposal, or any
inquiry with respect to or which could lead to any Alternative Proposal, the
material terms and conditions of such request, Alternative Proposal or inquiry,
and the identity of the Person making any such request, Alternative Proposal or
inquiry and its response or responses thereto. The Stockholders shall keep IPI
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fully informed on a prompt basis of the status and details (including amendments
or proposed amendments) of any such request, Alternative Proposal or inquiry, to
the extent such Stockholders have knowledge thereof. The Stockholders shall
promptly provide to IPI copies of all written correspondence or other written
material, including material in electronic form, between the Stockholders and
any Person making any such request, Alternative Proposal or inquiry. The
Stockholders will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
The Stockholders hereby represent and warrant, jointly and severally,
to IPI as follows:
Section 4.1 DUE ORGANIZATION, ETC. Each Stockholder has all necessary
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
Section 4.2 OWNERSHIP OF SHARES. The Stockholders beneficially own
4,811,760 shares of Common Stock as of the date hereof, of which Xxxxxxxx Xxxx
is the record owner of 4,212,760 shares and Xxxxx Xxxxxx is the owner of 599,000
shares. The Stockholders have the sole power to vote (or cause to be voted) such
shares of Common Stock. Xxxxxxxx Xxxx and Xxxxx Xxxxxx have good and valid title
to the Subject Shares, free and clear of any and all pledges, mortgages, liens,
charges, proxies, voting agreements, encumbrances, adverse claims, options,
security interests and demands of any nature or kind whatsoever, other than
those created by this Agreement.
Section 4.3 NO CONFLICTS. (i) No filing with any Governmental Entity
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by the Stockholders and the consummation by the
Stockholders of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Stockholders, the consummation
by any Stockholder of the transactions contemplated hereby or compliance by any
Stockholder with any of the provisions hereof shall (a) result in, or give rise
to, a violation or breach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation to which
any Stockholder is a party or by which any Stockholder or any of the Subject
Shares or the Stockholder's assets may be bound, or (b) violate any applicable
Law, except for any of the foregoing as does not and could not reasonably be
expected to impair any Stockholder's ability to perform his obligations under
this Agreement.
Section 4.4 RELIANCE BY IPI. Each Stockholder understands and
acknowledges that IPI is entering into the Merger Agreement in reliance upon the
execution and delivery of this Agreement by such Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF IPI
IPI hereby represents and warrants to the Stockholders as follows:
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Section 5.1 DUE ORGANIZATION, ETC. IPI is a company duly organized and
validly existing under the Laws of the jurisdiction of its incorporation. IPI
has all necessary corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by IPI have been duly authorized by all necessary action on
the part of IPI.
Section 5.2 CONFLICTS. (i) No filing with any governmental authority,
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by IPI and the consummation by IPI of the
transactions contemplated hereby and (ii) neither the execution and delivery of
this Agreement by IPI nor the consummation by IPI of the transactions
contemplated hereby shall (a) conflict with or result in any breach of the
organizational documents of IPI, (b) result in, or give rise to, a violation or
breach of or a default under any of the terms of any material contract,
understanding, agreement or other instrument or obligation to which IPI is a
party or by which IPI or any of its assets may be bound, or (c) violate any
applicable Law, except for any of the foregoing as does not and could not
reasonably be expected to impair IPI's ability to perform its obligations under
this Agreement.
ARTICLE VI
TERMINATION
Section 6.1 TERMINATION.
(a) Subject to Section 6.1(b), this Agreement shall terminate
and none of IPI or any Stockholder shall have any rights or obligations
hereunder upon the earliest to occur of: (i) the termination of this Agreement
by mutual written consent of IPI and the Stockholders, (ii) the Closing Date,
and (iii) the termination of the Merger Agreement in accordance with its terms.
(b) Notwithstanding the foregoing, (i) termination of this
Agreement shall not prevent any party hereunder from seeking any remedies (at
Law or in equity) against any other party hereto for such party's breach of any
of the terms of this Agreement, and (ii) Section 7.1 and Sections 7.3 through
7.15, inclusive, of this Agreement shall survive the termination of this
Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 APPRAISAL RIGHTS. To the extent permitted by applicable
Law, each Stockholder hereby waives any rights of appraisal or rights to dissent
from the Merger that it may have under applicable Law.
Section 7.2 PUBLICATION. The Stockholders hereby permit IPI to publish
and disclose in an Information Statement (including all documents and schedules
filed with the SEC) their identity and ownership of shares of Common Stock and
the nature of their commitments, arrangements and understandings pursuant to
this Agreement; provided, however, that such publication and disclosure shall be
subject to the prior review and comment by the Stockholders and their advisors.
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Section 7.3 FURTHER ACTIONS. Each of the parties hereto agrees that it
will use its reasonable best efforts to do all things necessary to effectuate
this Agreement.
Section 7.4 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing (including facsimile or similar writing) and
shall be deemed to have been duly given or made as of the date of receipt and
shall be delivered personally or mailed by registered or certified mail (postage
prepaid, return receipt requested), sent by overnight courier or sent by
facsimile (but only if the appropriate facsimile transmission confirmation is
received), to the applicable party at the following addresses or facsimile
numbers (or at such other address or telecopy number for a party as shall be
specified by like notice):
If to IPI to:
Island Pacific, Inc.
0000 Xxxxxxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Attention:
Telephone:
Facsimile:
with a copy to:
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Stockholders, to:
Xxxxxxxx Xxxx and Xxxxx Xxxxxx
c/o Page Digital Incorporated
0000 X. Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman
Telephone:
Facsimile:
with a copy to:
Xxxxxxxxxx & Xxxxx, LLP
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Section 7.5 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto, in whole or in part (whether by operation of Law or
otherwise), without the prior written consent of the other parties. Any attempt
to make any such assignment without such consent shall be null and void, except
that IPI may assign, in its sole discretion, any or all of its rights, interests
and obligations under this Agreement to any direct or indirect wholly owned
subsidiary of IPI without the consent of Page, but no such assignment shall
relieve IPI of its obligations hereunder. Subject to the preceding sentences,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by, the parties and their respective successors and permitted assigns.
Section 7.6 THIRD PARTY BENEFICIARIES. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to or shall confer on any Person other than
the parties hereto or their respective permitted successors and assigns any
rights, benefits, remedies, obligations or liabilities whatsoever under or by
reason of this Agreement.
Section 7.7 ENTIRE AGREEMENT. This Agreement and the Merger Agreement
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect thereto.
Section 7.8 GOVERNING LAW. This Agreement shall be governed by and must
be construed in accordance with the laws of the State of California.
Section 7.9 FEE AND EXPENSES. Except as otherwise provided herein,
whether or not the Merger is consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
Section 7.10 HEADINGS. Headings of the articles and sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
Section 7.11 INTERPRETATION. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, words denoting any gender shall include all genders and
words denoting natural Persons shall include corporations and partnerships and
vice versa. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be understood to be followed by the words "without
limitation."
Section 7.12 WAIVERS. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
nor any failure or delay on the part of any party hereto in the exercise of any
right hereunder, shall be deemed to constitute a waiver by the party taking such
action of compliance of any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any party hereto of a breach of any
provision hereunder shall not operate or be construed as a waiver of any prior
or subsequent breach of the same or any other provision hereunder.
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Section 7.13 SEVERABILITY. Any term or provision of this Agreement that
is invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 7.14 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any California Court,
this being in addition to any other remedy to which they are entitled at Law or
in equity.
Section 7.15 COUNTERPARTS. This Agreement may be executed by the
parties hereto in two or more separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original. All such counterparts
shall together constitute one and the same instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
Section 7.16 VENUE AND JURISDICTION. For purposes of venue and
jurisdiction, this Agreement shall be deemed made and to be performed in the
City of San Diego, California.
Section 7.17 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, actual attorney's and expert witness fees, relating to or arising out
of (a) such Proceeding (whether or not such Proceeding proceeds to judgment),
and (b) any post judgment or post award proceeding including without limitation
one to enforce any judgment or award resulting from any such Proceeding. Any
such judgment or award shall contain a specific provision for the recovery of
all such subsequently incurred costs, expenses, actual attorney's and expert
witness fees.
Section 7.18 MODIFICATION. This Agreement may be modified only by a
contract in writing executed by the party to this Agreement against whom
enforcement of such modification is sought.
Section 7.19 WAIVER. Any waiver of a default under this Agreement must
be in writing and shall not be a waiver of any other default concerning the same
or any other provision of this Agreement. No delay or omission in the exercise
of any right or remedy shall impair such right or remedy or be construed as a
waiver. A consent to or approval of any act shall not be deemed to waive or
render unnecessary consent to or approval of any other or subsequent act.
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Section 7.20 DRAFTING AMBIGUITIES. Each party to this Agreement and its
legal counsel have reviewed and revised this Agreement. The rule of construction
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or of any amendments or
exhibits to this Agreement.
IN WITNESS WHEREOF, each of IPI and each Stockholder has caused this
Agreement to be duly executed as of the day and year first above written.
ISLAND PACIFIC, INC.
By: //SS
---------------------------------
Name: Ran Xxxxxx
Title: Chief Financial Officer
//SS
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XXXXXXXX XXXX
//SS
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XXXXX XXXXXX
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