Exhibit 10
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
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.
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
"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.
[Remainder of Page Intentionally Left Blank.]
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 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, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
