Exhibit 8
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of May
31, 2004 by and among Retail Technologies International, Inc. a California
corporation ("RTI"), Island Pacific Inc., a Delaware corporation ("IPI"), and
the undersigned stockholder (the "Stockholder") of IPI.
RECITALS
A. On March 12, 2004, RTI, IPI, IPI Merger Sub, Inc., a Delaware
corporation, and Xxxxxxx Xxxxxxx and Xxxxxxx Xxxxx entered into an Agreement
and Plan of Reorganization dated as of March 12, 2004 (the "Merger
Agreement"), which provides for the merger of the RTI into IPI (the "Merger")
in which the shareholders of RTI contemplated exchanging their shares of RTI
capital stock for cash and shares of IPI common stock.
B. Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
the number of shares of outstanding capital stock of IPI and other securities
convertible into, or exercisable or exchangeable for, shares of capital stock
of IPI, all as set forth on the signature page of this Agreement
(collectively, the "Shares").
C. Stockholder acknowledges it is in its best interest that the
Merger be consummated.
D. RTI and IPI would now like to amend the Merger Agreement ("Amended
Merger Agreement") so that the RTI shareholders would receive, in exchange for
their RTI capital stock, shares of IPI preferred stock that would be
convertible into IPI common stock ("Merger Consideration") after IPI amends
its certificate of incorporation to increase the authorized number of shares
of IPI common stock to 200,000,000 (the "Certificate Amendment").
E. RTI is willing to enter into the Amended Merger Agreement provided
that the Stockholder agrees to vote its Shares to adopt the Certificate
Amendment, the Amended Merger Agreement, and the transactions contemplated
thereby.
F. In consideration of the execution of the Merger Agreement by RTI,
Stockholder is willing to restrict the transfer or disposition of any of the
Shares, or any other shares of capital stock of IPI acquired by Stockholder
hereafter and prior to the Expiration Date (as defined in Section 1(a)
hereof), and desires to vote the Shares and any other such shares of capital
stock of IPI so as to facilitate the consummation of the Merger.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Agreement to Retain Shares.
(a) Transfer and Encumbrance. Stockholder agrees, during the
period beginning on the date hereof and ending on the Expiration Date, not to
transfer, sell, exchange, pledge (except as may be specifically required by
law or court order) or otherwise dispose of or encumber (collectively,
"Transfer") any of the Shares or any New Shares (as defined in Section 1(b)
hereof), or to make any offer or agreement relating thereto, without the prior
written consent of RTI, unless each person to which any Shares or New Shares,
or any interest in such Shares or New Shares, is or may be transferred shall
have: (i) executed a counterpart of this Agreement; and (ii) agreed to hold
such Shares or New Shares (or such interest in such Shares or New Shares)
subject to all of the terms and provisions of this Agreement. As used herein,
the term "Expiration Date" shall mean the earlier to occur of (i) such date
and time as the meeting of the stockholders of IPI at which the IPI
stockholders approve the Certificate Amendment, (ii) if the Stockholder is an
employee of IPI, the date that the Stockholder ceases to be an employee of
IPI, or (iii) September 15, 2004.
(b) New Shares. Stockholder agrees that any shares of
capital stock of IPI that Stockholder purchases, or with respect to which
Stockholder otherwise acquires beneficial ownership, after the date of this
Agreement and prior to the Expiration Date, including, without limitation,
shares issued or issuable upon the conversion, exercise or exchange, as the
case may be, of all securities held by Stockholder which are convertible into,
or exercisable or exchangeable for, shares of capital stock of IPI ("New
Shares"), shall be subject to the terms and conditions of this Agreement to
the same extent as if they constituted Shares.
2. Agreement to Vote Shares. Until the Expiration Date, at every
meeting of stockholders of IPI called with respect to any of the following,
and at every adjournment or postponement thereof, and on every action or
approval by written consent of stockholders of IPI with respect to any of the
following, Stockholder shall vote the Shares and any New Shares (to the extent
any such New Shares may be voted), and, to the extent applicable, cause
holders of record of such Stockholder's Shares or New Shares to vote:
(a) in favor of adoption of the Amended Merger Agreement and
approval of the Merger and the transactions contemplated thereby; and
(b) in favor of adoption of the Certificate Amendment.
This agreement is intended to bind Stockholder only with respect to the
specific matters set forth herein and shall not restrict the Stockholder from
voting the Shares and any New Shares on matters other than as set forth in
this Section 2. Prior to the Expiration Date, Stockholder shall not enter into
any agreement or understanding with any person to vote or give instructions in
any manner inconsistent with this Section 2.
3. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to IPI an irrevocable proxy in the
form attached hereto as Exhibit A (the "Proxy"), which shall be irrevocable to
the extent provided in Section 212 of the Delaware General Corporation Law
until the Expiration Date, covering the total number of Shares and New Shares
of capital stock of IPI beneficially owned (as such term is defined in Rule
13d-3 under the Exchange Act) by Stockholder as set forth therein.
4. Representations, Warranties and Covenants of Stockholder.
Stockholder represents, warrants and covenants to RTI as follows:
(a) Stockholder is the beneficial owner of the Shares, with
full power to vote or direct the voting of the Shares.
(b) Except to the extent provided herein, as of the date
hereof the Shares are, and at all times up until the Expiration Date the
Shares will be, free and clear of any rights of first refusal, co-sale rights,
security interests, liens, pledges, claims, options, charges or other
encumbrances.
(c) Stockholder has full power and authority to make, enter
into and carry out the terms of this Agreement.
5. Additional Documents. RTI, Stockholder and IPI hereby covenant and
agree to execute and deliver any additional documents reasonably necessary or
desirable to carry out the purpose and intent of this Agreement.
6. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
7. Legending of Shares. If so requested by RTI, Stockholder agrees
that the Shares and any New Shares shall bear a legend stating that they are
subject to this Agreement and to an irrevocable proxy. Subject to the terms of
Section 1 hereof, Stockholder agrees that Stockholder will not transfer the
Shares or any New Shares without first having the aforementioned legend
affixed to the certificates representing the Shares or any New Shares.
8. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, then the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor
any of the rights, interests or obligations of the parties hereto may be
assigned or waived by any of the parties without the prior written consent of
the other parties.
(c) Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and
delivery of a written agreement executed by the parties hereto. Any amendment
effected in accordance with this Section 8(c) shall be binding on the parties
and their respective successors and assigns.
(d) Waiver. No waiver by any party hereto of any condition
or of any breach of any provision of this Agreement shall be effective unless
in writing. Any amendment effected in accordance with this Section 8(d) shall
be binding on the parties and their respective successors and assigns.
(e) Specific Performance; Injunctive Relief. The parties
acknowledge that the parties may be irreparably harmed and that there may be
no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to the non-breaching
parties upon any such violation, the non-breaching parties may have the right
to enforce such covenants and agreements by specific performance, injunctive
relief or by any other means available to the non-breaching parties at law or
in equity.
(f) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
commercial messenger or courier service, or mailed by registered or certified
mail (return receipt requested) or sent via facsimile (with acknowledgment of
complete transmission) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice); provided,
however, that notices sent by mail will not be deemed given until received:
If to RTI: Retail Technologies International, Inc.
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
With a copy to: Xxxxxxxx & Xxxxxxxx, LLP
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
If to IPI: Island Pacific, Inc.
00000 XxxXxxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Stockholder: To the address for notice set forth on the
signature page hereof.
(g) Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware.
(h) Attorneys' Fees and Expenses. If any action or other
proceeding relating to the enforcement of any provision of this Agreement is
brought by either party, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
(i) Entire Agreement. This Agreement and the Proxy contain
the entire understanding of the parties in respect of the subject matter
hereof, and supersede all prior negotiations and understandings between the
parties with respect to such subject matter.
(j) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(k) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date
first above written.
RETAIL TECHNOLOGIES
INTERNATIONAL, INC. Stockholder:
By: /s/ Xxxxxxx Xxxxxxx /s/ X.X. Xxxxxxx
-------------------------------- --------------------------------
Signature
Name: Xxxxxxx Xxxxxxx
------------------------------
Title: Chief Executive Officer
------------------------------
Print Name: Xxxx X. Xxxxxxx,
Director of The Sage Group plc
ISLAND PACIFIC, INC. Address:
The Sage Group plc
By: /s/ Ran Xxxxxx Xxxxxx Park Road
-------------------------------- Xxxxxxxxx xxxx Xxxx XX0 0XX, XX
Name: Ran Xxxxxx
------------------------------
Title: Chief Financial Officer
----------------------------
Company Capital Stock
---------------------
Common Stock:
--------------
Preferred Stock:
--------------
Options to Purchase
Common Stock:
--------------
EXHIBIT A
PROXY TO VOTE STOCK
OF ISLAND PACIFIC, INC.
The undersigned stockholder of Island Pacific Inc., a Delaware
corporation ("IPI"), hereby irrevocably (to the full extent permitted by
Section 212 of the Delaware General Corporation Law, except as provided below)
appoints Ran Xxxxxx, Xxxxxx Skoda and Xxxxxxx Xxxxxxx, each an officer of
IPI, and each of them individually, and any successor in any office of IPI
held by either of them, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of IPI that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of IPI issued,
issuable, exchanged or exchangeable in respect thereof on or after the date
hereof (collectively, the "Securities") in accordance with the terms of this
Proxy. The Securities beneficially owned by the undersigned stockholder of IPI
as of the date of this Proxy are listed on the final page of this Proxy. Upon
the undersigned's execution of this Proxy, any and all prior proxies given by
the undersigned with respect to any Securities are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Securities until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law), is coupled with an interest and is
granted pursuant to that certain Voting Agreement dated as of May 31, 2004, by
and among Retail Technologies International, Inc. a California corporation
("RTI"), Island Pacific Inc., and the undersigned stockholder (the "Voting
Agreement"), and is granted in consideration of RTI and IPI entering into that
certain Amended Merger Agreement dated as of the date hereof (the "Amended
Merger Agreement") by and among RTI, IPI, IPI Merger Sub, Inc., a Delaware
corporation, and Xxxxxxx Xxxxxxx and Xxxxxxx Xxxxx. As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the meeting of the stockholders of IPI at which the IPI stockholders approve
the Certificate Amendment or (ii) December 31, 2004.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Securities, and to exercise all voting and other rights of the undersigned
with respect to the Securities (including, without limitation, the power to
execute and deliver written consents pursuant to Section 228 of the Delaware
General Corporation Law), at every annual, special or other meeting or action
of the stockholders of IPI, as applicable, or at any postponement or
adjournment thereof and in every written consent in lieu of such meeting:
(a) in favor of adoption of the Amended Merger Agreement and
approval of the Merger and the transactions contemplated thereby; and
(b) in favor of adoption of the Certificate Amendment.
The attorneys and proxies named above may not exercise this Proxy
on any other matter except as provided above. The undersigned stockholder may
vote the Securities on all other matters. Any obligation of the undersigned
hereunder shall be binding upon the successors and assigns of the undersigned.
This Proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law). This Proxy shall terminate, and be of no
further force and effect, automatically upon the Expiration Date.
Dated: May 31, 2004
THE SAGE GROUP PLC
/s/ X.X. Xxxxxxx
-----------------------------------------------
(Signature of Stockholder)
Xxxx X. Xxxxxxx, director of The Sage Group plc
-----------------------------------------------
(Print Name of Stockholder)
Company Capital Stock
---------------------
Common Stock:
----------------------------------
Preferred Stock:
-------------------------------
Options to Purchase
Common Stock:
----------------------------------
