EXHIBIT 10.21
FIFTH AMENDMENT
THIS FIFTH AMENDMENT (this "Amendment") is entered into as of June 27,
2003 by and among SVI SOLUTIONS, INC., a Delaware corporation (the "Company"),
KOYAH LEVERAGE PARTNERS, L.P., a Delaware limited partnership ("Koyah
Leverage"), KOYAH PARTNERS, L.P., a Delaware limited partnership ("Koyah") and
RAVEN PARTNERS, L.P., a Delaware limited partnership ("Raven").
WHEREAS, pursuant to the Amendment Agreement dated as of July 15, 2002
by and among the Company, Koyah Leverage, Koyah, Raven and certain other parties
(the "Amendment Agreement"), (i) the Company made a Convertible Promissory Note
dated July 19, 2002 in the principal amount $937,500 in favor of Koyah Leverage,
a Convertible Promissory Note dated July 19, 2002 in the principal amount of
$187,500 in favor of Koyah and a Convertible Promissory Note dated July 19, 2002
in the principal amount of $125,000 in favor of Raven (collectively, the
"Original Notes") and (ii) the Company entered into an Investors' Rights
Agreement dated as of July 19, 2002 with Koyah Leverage, Koyah, Raven and
certain other parties (the "Original Investors' Rights Agreement");
WHEREAS, pursuant to the First Amendment dated as of December 5, 2002,
the Second Amendment dated as of March 14, 2003, the Third Amendment dated as of
March 28, 2003 and the Fourth Amendment dated as of April 3, 2003 among the
Company, Koyah Leverage, Koyah and Raven (the "Prior Amendments"), the Company
was granted certain extensions under the Original Notes and the Original
Investors' Rights Agreement (the Original Notes and the Original Investors'
Rights Agreement, as so amended, being referred to herein as the "Notes" and the
"Investors' Rights Agreement");
WHEREAS, the Company has requested that Koyah Leverage, Koyah and Xxxxx
xxxxx the Company certain further extensions under the Notes and the Investors'
Rights Agreement;
WHEREAS, in connection therewith, the parties desire to make certain
amendments to the Notes and Investors' Rights Agreement on the terms and
conditions set forth herein;
WHEREAS, the Investors' Rights Agreement may be amended with the
consent of the Company and the holders of 50% of the Registrable Securities (as
defined in the Investors' Rights Agreement) under Section 3.7 of the Investors'
Rights Agreement and Koyah Leverage, Koyah and Raven are holders of more than
50% of the Registrable Securities;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties, the parties do hereby agree as follows:
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1. EXTENSION OF REGISTRATION STATEMENT EFFECTIVE DATE UNDER THE NOTES.
The date contained in Section 13(d) of each Note for effectiveness of the
registration statement contemplated by Section 1.3 of the Investors' Rights
Agreement hereby is extended to July 31, 2003.
2. EXTENSION OF REGISTRATION STATEMENT EFFECTIVE DATE UNDER THE
INVESTORS' RIGHTS AGREEMENT. The date contained in Section 1.3(c) of the
Investors' Rights Agreement for effectiveness of the registration statement
contemplated by Section 1.3 of the Investors' Rights Agreement hereby is
extended to July 31, 2003.
3. EXTENSION OF RELATED DATES UNDER THE INVESTORS' RIGHTS AGREEMENT.
The dates contained in Section 1.3(d) and (e) of the Investors' Rights Agreement
for effectiveness of the registration statement contemplated by Section 1.3 of
the Investors' Rights Agreement hereby are correspondingly extended as a result
of the extension set forth above in Section 2 of this Amendment.
4. SECTION 16 MATTERS. The Company hereby represents and warrants to
Koyah Leverage, Koyah and Raven that this Amendment, the Prior Amendments and
the transactions contemplated hereby and thereby (the "Amendments and
Transactions") do not result in any purchase or sale or other acquisition or
disposition of an equity security or a derivative security (each, a "Section 16
Event") within the meaning of, and for purposes of, Section 16 of the Securities
Act of 1934, as amended, and the rules and regulations promulgated thereunder
("Section 16").
5. EXPENSES. Koyah Leverage, Koyah and Raven shall be entitled to
reimbursement of, and promptly upon request the Company shall pay, the legal
fees and expenses of Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx LLP as counsel for
ICM (as defined in the Amendment Agreement) incurred in connection with the
preparation and negotiation of this Amendment. Such legal fees of Xxxxx Xxxxxxx
Xxxxxx Xxxxxx & Xxxxxx LLP payable by the Company shall be charged at the same
hourly rate as the legal fees of such firm normally charged to ICM on other
matters. In addition, Koyah Leverage, Koyah and Raven and their affiliates, as
well as the partners, directors, officers, shareholders, members, employees or
agents thereof (the "Koyah Parties"), shall be entitled to reimbursement of, and
promptly upon request the Company shall pay, the legal fees and expenses
incurred by the Koyah Parties in connection with any threatened or actual
action, suit, claim, proceeding or investigation arising out of any assertion
that the Amendments and Transactions result in a Section 16 Event, unless it
shall ultimately be determined by final judicial decision (from which there is
no further right of appeal) that the Amendments and Transactions did result in a
Section 16 Event and in liability under Section 16 ("Section 16 Liability") on
the part of the Koyah Party as a result thereof. Furthermore, the Koyah Parties
shall be entitled to receive, and promptly upon request the Company shall pay,
an advancement of expenses (based on a reasonable estimate) in advance of the
final disposition of any such action, suit, claim, proceeding or investigation.
In order to obtain an advancement of expenses, a Koyah Party shall deliver to
the Company an undertaking on the part of the Koyah Party to repay the amounts
so advanced if it shall ultimately be determined by final judicial decision
(from which there is no further right of appeal) that the Amendments and
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Transactions did result in a Section 16 Event and in Section 16 Liability on the
part of the Koyah Party as a result thereof.
6. CONTINUED FORCE AND EFFECT. Except as specifically amended or
modified by this Amendment, the Notes and the Investors' Rights Agreement shall
remain unchanged. The Notes and the Investors' Rights Agreement, as amended or
modified by this Amendment, shall remain in full force and effect.
7. ENTIRE AGREEMENT. This Amendment contains the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
negotiations, understandings, agreements or arrangements with respect to such
subject matter.
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ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE
NOT ENFORCEABLE UNDER WASHINGTON LAW.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers or agents thereinto duly authorized, as of
the date first above written.
"COMPANY"
SVI HOLDINGS, INC.
By:
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Name: Xxxxx Xxxxxxxxx
Title: Chairman of the Board
"INVESTORS"
KOYAH LEVERAGE PARTNERS, L.P.
By: Koyah Ventures LLC, its general partner
By:
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Name: Xxxxxx Xxx
Title: Vice President
KOYAH PARTNERS, L.P.
By: Koyah Ventures LLC, its general partner
By:
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Name: Xxxxxx Xxx
Title: Vice President
RAVEN PARTNERS, L.P.
By: Koyah Ventures LLC, its general partner
By:
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Name: Xxxxxx Xxx
Title: Vice President
[Signature Page to Fifth Amendment]
