EXHIBIT 2.12
This Agreement (this "AGREEMENT") is dated as of May 5, 2003, among SVI
Solutions, Inc., a Delaware corporation (the "COMPANY"), Crestview Capital Fund
I, LP ("One"), Crestview Capital Fund II, LP ("Two") and Crestview Capital
Offshore Fund, Inc. ("Offshore") (One, Two and Offshore are collectively
referred to as the "Purchasers").
WHEREAS, the Company and the purchasers signatory thereto
(collectively, the "Original Purchasers") are parties to that certain Securities
Purchase Agreement dated as of March 31, 2003 (the "Purchase Agreement");
WHEREAS, defined terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement;
WHEREAS, subject to the terms and conditions set forth in this
Agreement and the Purchase Agreement, the Company desires to issue and sell to
the Purchasers, and the Purchasers, severally and not jointly, desire to
purchase from the Company, securities of the Company as more fully described in
this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the Purchasers hereto
agree as follows:
1. INVESTMENT. (i) Within two (2) Trading Days from the date hereof,
each of One, Two and Offshore shall deliver to the Company via wire transfer
their respective amounts of the Purchase Price as set forth on the signature
pages hereto and labeled as the subscription amount, and the Company shall
deliver to the Purchasers the Debentures evidencing said principal amount and
the Warrants issuable at the Closing, except that the Purchaser shall receive
30% Warrant coverage rather than 40% Warrant coverage under Section 2.2(a)(ii)
of the Purchase Agreement.
(ii) Upon satisfaction or waiver of the conditions set forth in Section
2.2 of the Purchase Agreement and receipt of the written consent of the Original
Purchasers to the transactions contemplated by this Agreement, except the
conditions set forth in subsections 2.2(iii)[legal opinion of Company Counsel],
2.2(a)(iv)[Shareholder Approval], 2.2(a)(vii)[lock-up agreements], the First and
Second Closings shall occur at the offices of the Company, or such other
location as the parties shall mutually agree.
2. DOCUMENTS. The form of the Debentures and the Warrants to be issued
pursuant to this Agreement shall be identical in all respects to the form of the
Debentures and Warrants issued to the purchasers pursuant to the Purchase
Agreement, except as follows: (a) interest on the Debentures being issued to the
Purchasers shall only accrue from Tuesday, May 6, 2003, notwithstanding any
different provision in the Debentures; (b) any references to the Original Issue
Date in the Debentures and the Initial Exercise Date in the Warrants for
purposes of purchase, and the Closing Date for determining "Filing Date" and
"Effectiveness Date" under the Registration Rights Agreement for purposes of
accruing liquidated damages, shall be deemed to mean May 6, 2003, but all
maturity, interest payment or warrant termination dates set forth in such
respective instruments shall remain as written in such instruments in order that
the Debentures and Warrants issued for the First Closing under this Agreement
shall be treated as if they were issued on March 31, 2003 except with respect
the accrual of interest and the Filing Date and Effectiveness Date under the
Registration Rights Agreement; (c) with respect to the Purchasers, the Monthly
Redemption Amount (as defined in the Debenture) shall be $18,750 for the initial
amount and the increased amount on the occurrence of the Second Closing shall be
$32,727 (in the aggregate as to the amounts in the First and Second Closings).
With respect to the Registration Statement for the initial issuance of
debentures and warrants to each Purchaser for the First Closing, each Purchaser
waives Sections 2(b) and 3(a) of the Registration Rights Agreement with respect
to the right to review and comment thereon. Notwithstanding anything herein to
the contrary, nothing in this Agreement shall be construed to modify the rights
of the Original Purchasers under the Purchase Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as set forth
under the corresponding section of the disclosure schedules attached to the
Purchase Agreement, if any, all representations and warranties of the Company
contained in Section 3.1 of the Purchase Agreement were true and correct as of
March 31, 2003, and remain true and correct as of the date hereof, as though
made at and as of the date hereof, except the Company has filed a proxy
statement with the Securities & Exchange Commission to, among other things,
solicit the approval of the shareholders of the transactions contemplated under
the Purchase Agreement and this Agreement. The Company has performed all of the
covenants of the Company contained in the Purchase Agreement to be performed by
the Company through the date hereof, except as follows: (i) the Company filed a
proxy statement with the Securities & Exchange Commission on May 2, 2003 in lieu
of the information statement required under Section 4.5(c) of the Agreement; and
(ii) the Company issued a press release on April 2, 2003 under Section 4.8
announcing the transactions consummated under the Purchase Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby represents and warrants to the Company, severally and not jointly, that
the representations and warranties of the Purchasers listed in Section 3.2 of
the Purchase Agreement are true and correct with respect to such Purchaser as of
the date hereof.
5. INCORPORATION BY REFERENCE. Except as set forth in this Agreement,
each of the Purchase Agreement and the Registration Rights Agreement (with all
exhibits attached thereto) are hereby incorporated by reference and made a part
hereof. Execution of the signature page to this Agreement shall constitute the
execution of each of the Purchase Agreement and the Registration Rights
Agreement, and each Purchaser shall be bound to their terms and conditions as
set forth in this Agreement.
6. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
7. AMENDMENT AND WAIVER. Neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated, except by a written instrument
signed by all the parties hereto.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together,
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
WIRE INSTRUCTIONS: SVI SOLUTIONS, INC.
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By:________________________
Name: Xxxxx Xxxxxxxxx
Title: Chairman and Chief Executive
Officer
CRESTVIEW CAPITAL FUND I, LP
By:__________________________
Name: Xxxxxxx Xxxx
Title: Managing Partner
First Closing Subscription: $100,000
Second Closing Subscription: $100,000
CRESTVIEW CAPITAL FUND II, LP
By:__________________________
Name: Xxxxxxx Xxxx
Title: Managing Partner
First Closing Subscription: $175,000
Second Closing Subscription: $175,000
CRESTVIEW CAPITAL OFFSHORE FUND, INC.
By:__________________________
Name: Xxxxxxx Xxxx
Title: Secretary
First Closing Subscription: $25,000
Second Closing Subscription: $25,000
Address for all notices:
Xxxxxxx Xxxx
Crestview Capital Funds
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
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