EXHIBIT 4.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
June 1, 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 approve 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 desires 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 court order)
or otherwise dispose of or encumber (collectively, "TRANSFER") any of the Shares
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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) December 31, 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 approval of the Merger, the Merger Agreement, the
transactions contemplated thereby and any matter that could reasonably be
expected to facilitate the Merger; and
(b) in favor of approval of the Certificate Amendment.
This agreement is intended to bind Stockholder only with respect to the
specific matters set forth herein.
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.
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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 for and on behalf of all
beneficial owners of the Shares.
(b) 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 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.
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(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 RTI will be irreparably harmed and that there will 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 RTI upon any such violation, RTI shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to RTI 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.
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(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]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
RETAIL TECHNOLOGIES
INTERNATIONAL, INC. STOCKHOLDER:
By:_________________________________ ___________________________________
Name:_______________________________ Signature
Title:______________________________ ___________________________________
Print Name
ISLAND PACIFIC, INC.
Address:
By:_________________________________ ___________________________________
Name:_______________________________ ___________________________________
Title:______________________________ ___________________________________
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
_____________, ____________ and _____________, each officers of IPI, and each 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 June 1, 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 approval of the Merger, the Merger Agreement,
the transactions contemplated thereby and any matter that could reasonably be
expected to facilitate the Merger; and
(b) in favor of approval 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: June __, 2004
_______________________________________
(Signature of Stockholder)
_______________________________________
(Print Name of Stockholder)
COMPANY CAPITAL STOCK
---------------------
Common Stock:__________________________
Preferred Stock: ______________________
Options to Purchase
Common Stock: ________________________
