EXHIBIT 10.23
VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS PROXY IS IRREVOCABLE AND IS COUPLED WITH AN INTEREST.
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY (this "Agreement") is made
on or about March 6, 2002, by and among I.T. Technology, Inc., a Delaware
corporation ("Company"), Xxxx Xxxxxxx ("Mochkin"), Ledger Technologies Pty Ltd.
("Ledger"), Sunswipe Australasia Pty Ltd. ("Sunswipe), Daccar Pty Ltd.
("Daccar") and Nasdaq Australia Pty Ltd ("Nasdaq" who, together with Mochkin,
Ledger, Sunswipe and Daccar are referred to collectively herein as the
"Stockholders").
RECITALS
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WHEREAS, the Stockholders collectively own 70,802,053 shares (the
"Shares") of the Company's outstanding common stock, $0.0002 par value per share
(the "Company Stock"), in the amounts set forth on Exhibit A attached hereto, an
amount which, in the aggregate, represents approximately 49% of the outstanding
Company Stock; and
WHEREAS, in order to facilitate the listing of the Company Stock for
public trading and as consideration for the liquidity such listing will provide
the Stockholders with respect to their Shares, each of the Stockholders desires
to enter into this Agreement.
NOW, THEREFORE, in consideration of good and valuable consideration,
the adequacy of which is hereby acknowledged, and in further consideration of
the premises and the mutual agreements contained herein, and intending to be
legally bound, the parties hereby agree as follows:
1. Agreement to Vote and Proxy. Each of the Stockholders hereby agrees
that at any meeting of the Stockholders of the Company, however called, and in
any action by written consent of the Stockholders of the Company, such
Stockholder shall vote all Shares (including all shares of Company Stock to be
issued to the Stockholders with respect to the Shares as a result of a stock
dividend, stock split, reverse stock split, recapitalization, reorganization,
merger, consolidation, separation, or like change in the corporate or capital
structure of the Company, all of which shares are collectively referred to as
the "Shares"), in the manner determined by the holders of the majority of the
remaining shares of Company Stock not owned by the Stockholders. In furtherance
of the foregoing agreement to vote Shares, each of the Stockholders hereby
grants to the board of directors of the Company a proxy to vote such
Stockholder's Shares at any meeting of the Stockholders of the Company or in
connection with a written consent in lieu of a meeting:
THE PARTIES ACKNOWLEDGE THE PROXY GRANTED HEREIN, BEING COUPLED WITH AN
INTEREST, IS IRREVOCABLE AND SHALL BE VALID AND IN FULL FORCE AND EFFECT UNTIL
THIS AGREEMENT TERMINATES PURSUANT TO SECTION 3.
2. Representations and Warranties of the Stockholders. Each
Stockholder, severally and not jointly with the other Stockholders, represents
and warrants to the Company that:
a. Such Stockholder is the sole, true, lawful and beneficial
owner of the Shares listed opposite the name of such Stockholder on Exhibit A
attached hereto.
b. Such Stockholder has the power and authority to enter into
this Agreement, to perform such Stockholder's obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
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3. Termination. This Agreement shall terminate on the earlier of (a)
the third anniversary of the date of this Agreement, (b) the date on which the
total number of shares of Company Stock beneficially owned by the Stockholders
is equal to less than ten percent (10%) of the total number of shares of Company
Stock issued and outstanding, (c) a person or group unaffiliated with the
persons currently serving as the officers and directors of the Company acquires
beneficial ownership of at least fifty percent (50%) of the Company Stock then
outstanding, or (iv) one hundred and twenty (120) days from the date hereof in
the event that (y) the Company Stock has not been listed or approved for trading
on the NASDAQ over the counter bulletin board and (z) the Company has no Rule
15c-211 application filed in connection therewith pending before the NASD or (v)
solely with respect to the affected Shares, the sale or transfer of any shares
to an unaffiliated third party.
4. Assignment. No party hereto may assign any of its rights or
obligations hereunder. Subject to the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors, assigns, heirs, administrators, executors and representatives.
5. Specific Performance. Each Stockholder recognizes that, in the event
a Stockholder defaults in the performance of such Stockholder's respective
obligations hereunder, monetary damages will not be an adequate remedy for the
Company. Therefore, the Company shall be entitled to obtain specific performance
of the terms of this Agreement. In any action to enforce specifically the
performance of this Agreement, each Stockholder waives the defense that there is
another adequate remedy at law or equity and agrees that the Company shall have
the right to obtain specific performance of each Stockholder's respective
obligations under the terms of this Agreement without being required to prove
actual damages, post bond or furnish other security.
6. Miscellaneous
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a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to principles of conflicts of laws.
b. Severability. If any term, provision, covenant or condition of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the rest of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
c. Headings and Language. The various headings herein are
inserted for convenience only and shall not be deemed a part of or in any manner
affect the terms of this Agreement or their provisions. As used in this
Agreement, the masculine, feminine or neuter gender and the singular and plural
shall be deemed to include the other whenever the context so indicates.
d. Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement among the parties pertaining to the subject
matter contained in it and supercedes all prior and contemporaneous agreements,
representations, warranties and understandings of the parties. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by all of the parties affected by such supplement, modification or
amendment. No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
e. Survival of Representations and Warranties. All
representations, warranties, covenants and agreements shall survive the
execution and delivery of this Agreement.
f. Parties in Interest. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any person other than the parties to this Agreement
and their respective successors and assigns, and nothing in this Agreement is
intended to relieve or discharge the obligations or liabilities of any third
person to any party to this Agreement and no provision should give any third
person any right of subrogation or action over or against any party to this
Agreement.
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g. Successors and Assigns. This Agreement shall be binding on and
shall inure to the benefit of the parties to it and their respective successors
and assigns.
h. Expenses. Except as otherwise specifically provided herein,
each party hereto shall pay its own expenses incurred in connection with this
Agreement.
i. Recovery of Litigation Costs. If any legal action or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, in addition to any other relief to which he or it may be
entitled.
j. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
k. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if personally served on the party to
whom the notice is to be given, or on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, to the party at its
principal office or his residence address set forth below, or at such other
address as any party shall give to the other parties for purposes of notice, in
accordance with the foregoing.
If to the Company or Trustees:
I.T. Technology, Inc.
00-00 Xxxx Xxxx
Xxxxxxx, Xxxxxxxx 0000
Xxxxxxxxx
If to the Mochkin or Stockholders:
Xxxx Xxxxxxx
10 Bickhams Court
East Kilder
Melbourne, Victoria
Australia 3183
[Signatures continued on next page]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
I.T. TECHNOLOGY, INC.,
A DELAWARE CORPORATION
By: /s/ Yam-Hin Tan
--------------------------------
Its: YAM-HIN TAN
-------------------------------
C.F.O/DIRECTOR
/s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx, individually
LEDGER TECHNOLOGIES PTY LTD. SUNSWIPE AUSTRALASIA PTY LTD.
By /s/ X. Xxxxxxx By /s/ X. Xxxxxxx
--------------------------------- -------------------------------
Its: XXXX XXXXXXX Its: XXXX XXXXXXX
------------------------------- -------------------------------
DACCAR PTY LTD. NASDAQ AUSTRALIA PTY LTD.
By /s/ Xxxx Xxxxxxx By /s/ Xxxx Xxxxxxx
--------------------------------- -------------------------------
Its: XXXX XXXXXXX Its: XXXX XXXXXXX
------------------------------- -------------------------------
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EXHIBIT A
Stockholder Number of Shares
----------- ----------------
Ledger Technologies Pty Ltd. 54,783,356
Sunswipe Australasia Pty Ltd. 9,000,000
Daccar Pty Ltd. 6,704,521
Nasdaq Australia Pty Ltd. 314,176
Total: 70,802,053
