EXHIBIT 10.29
OPTION AGREEMENT
This Option Agreement (the "Agreement") is effective April 25, 2003
(the "Grant Date") between Softline Ltd., a South African company (the
"Grantor"), and ▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇"), as trustee of a certain management group
of Island Pacific, Inc., a Delaware corporation formerly known as SVI Solutions,
Inc. ("IPI"), identified on the attached EXHIBIT A (the "Optionees"). EXHIBIT A
may be amended from time to time by IPI to reflect changes in the management
group.
1. RECITALS
1.1 Grantor is the holder of shares of common stock ("Common Stock") of
IPI and shares of Series A Preferred Stock of IPI (the "Preferred Stock"), which
are convertible into shares of Common Stock in accordance with the Amended and
Restated Certificate of Incorporation filed by IPI with the Delaware Secretary
of State on July 11, 2003 (the "Certificate of Incorporation");
1.2 Grantor and IPI desire to provide management incentives to the
Optionees for the benefit of Grantor and IPI; and
1.3 As an inducement to the Optionees, Grantor shall authorize ▇▇▇▇ to
grant the Optionees from time to time the right to purchase a certain number of
shares of the Common Stock and Preferred Stock held by Grantor (collectively,
"Option Shares") on the terms and conditions set forth in this Agreement.
2. OPTION
2.1 GRANT. The Grantor hereby grants to ▇▇▇▇, as trustee of the
Optionees, and or to the Optionees, in such numbers as the Board of Directors of
IPI may determine in writing from time to time, during the Term (as defined
below) the option (this "Option") to purchase from the Grantor the following
Option Shares: (a) 8,000,000 shares of Common Stock held by the Grantor; and (b)
such number of shares of Preferred Stock that are convertible into 17,625,000
shares of Common Stock as of the Grant Date. This Option does not apply to other
any capital stock or other securities of IPI beneficially owned by Grantor.
Notwithstanding anything herein to the contrary, none of the Option Shares shall
be shares that have been held for a period of less than 12 months by Softline,
it being the intention of the parties that the shares that Softline continues to
hold (assuming all Options exercised) are the initial shares issued to Softline
more than 12 months prior to the Grant Date.
2.2 OPTION PRICE. The price (the "Option Price") for each Option Share
shall be Eighty-Cents ($.80) per share of Common Stock represented by such
Option Share.
2.3 CHANGES IN EQUITY STRUCTURE; RECAPITALIZATION. If any change is
made in the Option Shares such as through a merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise, this Option will be
appropriately adjusted in the number of shares and price per Option Share.
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2.4 NO STOCKHOLDER RIGHTS. No Optionee shall have rights as a
stockholder with respect to any Option Shares he or she is entitled to purchase
under this Option until the date of the issuance of a certificate for the Option
Shares. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such certificate is issued,
except as provided in this Agreement. This Option and all Option Shares acquired
hereunder are subject to IPI's Certificate of Incorporation, as amended, IPI's
Bylaws, and the Investor Rights Agreement dated January 1, 2002 between IPI and
Softline (the "Investor Rights Agreement"), and any other agreement to which
Softline and/or IPI are bound, copies of which ▇▇▇▇ acknowledges having received
and shall make available to the Optionees.
2.5 JOINDER. Upon the grant or exercise of an Option to or by an
Optionee, each Optionee shall execute such instruments reasonably satisfactory
to Softline and ▇▇▇▇ agreeing to be bound to the terms of this Agreement and
confirming the accuracy of the representations and warranties made by Optionee
herein.
3. EXERCISE
3.1 OPTION TERM. During the term (the "Term") commencing on the Grant
Date and ending on either March 24, 2004 or the date on which an Optionee's
Continuous Status (as defined below) is terminated, whichever occurs earliest
(the "Expiration Date"), Optionee shall be entitled to exercise all or any part
of the Option granted to him or her at any time. For purposes of this paragraph,
"Continuous Status" means the full-time employment of Optionee as an officer or
director of IPI not interrupted or terminated for any reason whatsoever, whether
voluntarily, by the Optionee or IPI, or involuntarily.
3.2 EXPIRATION OF EXERCISE RIGHTS. In no event shall this Option be
exercisable after the Expiration Date.
3.3 EXERCISE PROCEDURE. The Option shall be exercised by the giving of
written notice to the Grantor in the form attached as EXHIBIT B, specifying the
number and type of Option Shares to be purchased, accompanied by the payment of
the aggregate Option Price for the Option Shares being purchased, such payment
to be made in any combination of:
(a) United States cash currency;
(b) a cashier's or certified check to the order of the
Grantor; or
(c) a personal check acceptable to the Grantor.
3.4 LEGENDS. Certificates representing Option Shares acquired upon
exercise of this Option may contain such legends and transfer restrictions as
IPI and/or Softline may deem necessary or desirable to assure the satisfaction
of any liability that either or both may or will have incurred for any
withholding of federal, state or local income, employment or other taxes, to
facilitate compliance by either or both with any federal or state laws or
regulations, including, without limitation, legends restricting transfer of the
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Option Shares until there has been compliance with federal and state securities
laws or such other restrictions as may be imposed on the Stock under the terms
of this Agreement, IPI's Certificate of Incorporation, as amended, the
Certificate of Incorporation, IPI's Bylaws, the Investor Rights Agreement, or
any other agreement to which Softline and/or IPI are bound.
4. REPRESENTATIONS AND WARRANTIES. Optionee represents and warrants to Grantor
the following: (a) This Option and the Option Shares are/will be acquired for
investment purposes and not with a view to resale or distribution; (b) Optionee
qualifies as an "Accredited Investor," as such term is defined in Rule 501(a) of
Regulation D under the Act; (c) Optionee has such knowledge and experience in
financial, tax, and business matters in order to enable Optionee to use the
information made available to Optionee to fully evaluate the risks associated
with an investment in the Option Shares, to evaluate the merits and risks of
Optionee's prospective investment in the Option Shares, to make an informed
investment decision, and to protect Optionee's interests in connection with an
investment in the Option Shares; (d) Optionee is a sophisticated investor and
has access to information regarding an investment in the Option Shares as would
be available if the Option Shares were registered in a registration statement;
and (e) Optionee has consulted with a tax advisor with respect to the Option
and/or Option Shares, including, without limitation, the applicability of
Section 83 of the Internal Revenue Code and any appropriate filings and/or
notices thereunder. Furthermore, Optionee understands some of the Option Shares
have not been registered under the Securities Act of 1933 (the "Act") in
reliance upon an exemption from registration for non-public, offerings and
certain related factors, and such Option Shares may not be sold and must be held
indefinitely unless subsequently registered under the Act (and qualified under
any applicable state securities laws) or IPI receives the written opinion of
counsel acceptable to IPI that an exemption from registration (and
qualification) is available.
5. NOTICES.
5.1 IN WRITING. All notices, demands, requests, or other communications
permitted or required under this Agreement or applicable law shall be in
writing.
5.2 DELIVERY. All such communications may be served personally or may
be sent by registered or certified mail, return receipt requested, postage
prepaid and addressed to either Optionee or the Grantor at the addresses
appearing beneath the respective party's signature to this Agreement, or at such
other address as either party shall have communicated to the other pursuant to
this Section. All such communications shall be deemed effectively delivered upon
personal service or three (3) days after deposit in the United States Mail.
6. MISCELLANEOUS.
6.1 SUCCESSORS AND ASSIGNS. This Option may not be transferred by
Optionee to any other person or entity and may be exercised only during
Optionee's lifetime and only by Optionee; provided, however, that this Option
may be transferred to a trust for the benefit of the Optionee or members of his
immediate family. Subject to the foregoing limitations, this Agreement shall
inure to the benefit of the Grantor and Optionee and their respective successors
or assigns.
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6.2 SEVERABILITY. If any provision or provisions of this Agreement are
adjudged to be for any reason unenforceable, illegal or void, the remainder of
its provisions shall remain in full force and effect.
6.3 INTEGRATION. This Agreement constitutes the entire understanding of
the parties concerning the Option granted hereby. Except as otherwise provided,
any changes, modifications, or variations to this Agreement or the Option are
invalid unless stated in writing and executed by the Grantor and Optionee.
6.4 GOVERNING LAW. This Agreement and the Option granted hereby shall
be governed by the laws of the State of California. Any action to enforce or
interpret this Agreement shall be brought in the federal or state courts
situated in San Diego County, State of California,
6.5 ATTORNEYS FEES. If either party brings an action or seeks to
enforce or interpret any of the terms or provisions of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs in addition to any other remedy it may be awarded.
6.6 COUNTERPARTS. This Agreement may be executed in counterparts which
shall constitute the whole instrument.
6.7 FURTHER ASSURANCES. Each party to this Agreement shall execute and
deliver all instruments and documents and take all actions as may be reasonably
required or appropriate to carry out the purposes of this Agreement.
6.8 LEGAL REPRESENTATION. Each of the parties to this Agreement
acknowledges that in connection with the preparation of this Agreement ▇▇▇▇▇▇▇
▇▇▇▇ Seidenwurm & ▇▇▇▇▇, LLP: (a) represented IPI exclusively in this matter,
and SWSS represented neither Softline nor ▇▇▇▇; (b) represents Softline in
matters unrelated to IPI, but that Softline was represented in this matter by
separate counsel and has waived any conflicts in connection herewith; (c) after
execution of this Agreement, IPI may continue to retain SWSS as its legal
counsel.
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6.9 INDEMNIFICATION. ▇▇▇▇ shall indemnify Softline against all Claims
(as defined below) and all costs, expenses and attorney's fees incurred in the
defense of any of such Claims or any action or proceeding brought on any of such
Claims, to the extent not covered by any applicable insurance or to the extent
of any liability in excess of the policy limits of such insurance. For purposes
of this Paragraph, "Claims" shall mean all liabilities, damages, losses, costs,
expenses, attorney's fees and claims (except to the extent caused by the other
party's negligent act, willful misconduct or breach under this Agreement)
incurred by Softline arising under Section 16 of the Securities Act of 1934, as
amended, and the rules and regulations promulgated thereunder. If any action or
proceeding is brought against Softline by reason of any such Claims, ▇▇▇▇ upon
notice from Softline shall defend such action or proceeding at the Softline's
sole cost by legal counsel reasonably satisfactory to Softline. Nothing in this
Paragraph creates any rights to which any insurance company may be subrogated
and no person who is not a party to this Agreement may enforce, directly or
indirectly, this Paragraph.
SOFTLINE LTD.,
a South African company
By:______________________________________
Name:____________________________________
Title:___________________________________
Address:_________________________________
_________________________________________
▇▇▇▇▇▇ ▇▇▇▇
Address:_________________________________
_________________________________
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