EXHIBIT 10.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into 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").
RECITALS
WHEREAS, Seller is the owner of 141,000 shares of Series A Convertible
Preferred Stock, par value $0.0001 (the "Series A Stock"), 8,923,915 shares of
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.
WHEREAS, upon the terms and conditions set forth in the Stock
Repurchase Agreement, dated as of the date hereof, by and between Purchaser and
Seller, to which this Agreement is attached (the "Repurchase Agreement"), Seller
desires to sell and Purchaser desires to repurchase the Shares and the Option
from Seller.
WHEREAS, the obligations in the Repurchase Agreement are conditioned
upon the execution and delivery of this Agreement; and
WHEREAS, in connection with the consummation of the transactions
contemplated by the Repurchase Agreement, Seller has agreed to exercise its
future voting rights for the Shares as directed by the Company and to the extent
set forth herein.
NOW, THEREFORE, in consideration of these 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. During the Term (as defined below), at every meeting of
stockholders of Company, including every adjournment or postponement thereof,
and on every action or approval by written consent of stockholders of Company,
Seller shall vote and cause each of its proxies or attorneys-in-fact to vote,
the Shares and any shares of Common Stock issued on conversion of any Series A
Stock (the "Conversion Shares"), as directed in writing by Xxxxx Xxxxxxxxx not
later than 5 business days prior to the time of such vote or consent; provided,
however, that Seller shall not be obligated to vote the Shares and any
Conversion Shares in favor of any action (a) that would adversely affect the
rights, powers and privileges of Seller as a stockholder of the Company or the
value of Seller's interest in the Company, in either case, disproportionately
from any other stockholder of the Company or (b) in which Xxxxx Xxxxxxxxx or any
other officer or director of the Company or any of their respective affiliates,
directly or indirectly, has any interest other than as a stockholder of the
Company.
2. CONVERSION OF SHARES. During the Term, if requested by the Company
in writing in connection with, and not later than 10 business days prior to the
record date for, any required vote or consent pursuant to Section 1 above,
Seller will convert all of the Series A Stock to Common Stock. Seller will
execute the documentation and take all other steps necessary, as requested by
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the Company, to effect a conversion of the Series A Stock not later than five
(5) business days prior to the record date for any stockholder meeting or action
by written consent in which such stockholder vote or consent is required. Any
Common Stock issued to Seller upon conversion of Series A Stock will be subject
to Section 1 above and the Repurchase Agreement.
3. TERM. The term of this Agreement (the "Term") will commence on the
Effective Date and continue until (i) Purchaser makes the final payment due
under the Repurchase Agreement and transfers record title to the Shares to
Purchaser, and Seller delivers the stock certificates for the Shares to
Purchaser; provided, that this Agreement shall be suspended immediately upon the
Company's failure to make any payment when due in accordance with the Repurchase
Agreement until such time that the Company re-commences such payments and pays
in full any past-due amounts or (ii) the earlier termination of the Repurchase
Agreement (the "Expiration Date").
4. MISCELLANEOUS.
4.1. REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser that (a) Seller has not, prior to or on the date of this
Agreement, executed or delivered 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) Seller 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, Seller enforceable in accordance
with its terms.
4.2. 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
Purchaser shall be entitled to seek injunctive relief without bond to prevent
violation or continuing violation thereof.
4.3. 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.
4.4. 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.
4.5. SUCCESSORS; ASSIGNMENT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors, assigns, administrators, executors and/or other legal
representatives. 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.
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4.6. 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.
4.7. 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.
4.8. 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.
4.9. 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 under
his/her 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 (3) 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
notice of a change of address to the other party to this Agreement.
4.10. 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.
4.11. 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.
4.12. 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.
4.13. 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
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"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.
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IN WITNESS WHEREOF, the parties hereto have executed this VOTING
AGREEMENT as of the date first above written.
SELLER:
THE SAGE GROUP PLC,
a company organized under the laws of England and Wales
By: /S/ XXXX XXXXXXXX
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Group Financial 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, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
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