EXHIBIT 10.3
AMENDMENT AND WAIVER
This AMENDMENT AND WAIVER (this "AMENDMENT"), dated as of November 16,
2005, is entered into by and between ISLAND PACIFIC, INC., a Delaware
corporation (the "COMPANY"), and MIDSUMMER INVESTMENT, LTD., a Bermuda company
("MIDSUMMER"), for the purpose of amending and waiving certain terms of (i) the
9% Convertible Debenture, dated as of March 15, 2004 (as amended, modified
and/or supplemented from time to time, the "MARCH 2004 Debenture") issued by the
Company to Midsummer, (ii) the Securities Purchase Agreement, dated as of March
15, 2004 (as amended, modified or supplemented from time to time, the "March
2004 Purchase Agreement") by and between the Company and Midsummer, (iii) the
Registration Rights Agreement by and between the Company and Midsummer dated
March 15, 2004 (as amended, modified or supplemented from time to time, the
"MARCH 2004 REG. RIGHTS AGREEMENT"), (iv) the Secured Convertible Term Note,
dated as of June 15, 2005 (as amended, modified and/or supplemented from time to
time, the "JUNE 2005 TERM NOTE" and together with the March 2004 Debenture, the
"NOTES" and each, a "Note") issued by the Company to Midsummer, (v) the
Securities Purchase Agreement, dated as of June 15, 2005 (as amended, modified
or supplemented from time to time, the "JUNE 2005 PURCHASE AGREEMENT" and
together with the March 2004 Purchase Agreement, the "PURCHASE AGREEMENTS" and
each, a "PURCHASE AGREEMENT") by and between the Company and Midsummer and (vi)
the Registration Rights Agreement by and between the Company and Midsummer dated
June 15, 2005 (as amended, modified and/or supplemented from time to time, the
"JUNE 2005 REG. RIGHTS AGREEMENT" and together with the March 2004 Reg. Rights
Agreement, the "REG. RIGHTS AGREEMENTS" and each, a "REG. RIGHTS AGREEMENT").
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the applicable Note, Purchase Agreement or Reg. Rights
Agreement.
WHEREAS, the Company and Midsummer have agreed to make certain changes
to the Notes, Purchase Agreements and Reg. Rights Agreements as set forth
herein.
NOW, THEREFORE, in consideration of the above, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Midsummer and the Company hereby agree that the Company shall not
be required to pay the principal portion of any Monthly Redemption Amount (as
defined in the March 2004 Debenture) due on the first business day of November
2005, December 2005, January 2006 and February 2006 on such dates (collectively,
the "MARCH 2004 POSTPONED PRINCIPAL"); PROVIDED THAT, the March 2004 Postponed
Principal shall each be paid in full on the Maturity Date (as defined in the
March 2004 Debenture), together with all other amounts due and payable on such
date under the March 2004 Purchase Agreement and the Related Agreements referred
to in the March 2004 Purchase Agreement.
2. Midsummer and the Company hereby agree that the Company shall not be
required to pay the principal portion of any Monthly Amount (as defined in the
June 2005 Term Note) due on the first business day of November 2005, December
2005, January 2006 and February 2006 on such dates (collectively, the "JUNE 2005
POSTPONED PRINCIPAL"); PROVIDED THAT, the June 2005 Postponed Principal shall
each be paid in full on the Maturity Date (as defined in the June 2005 Term
Note), together with all other amounts due and payable on such date under the
June 2005 Purchase Agreement and the Related Agreements referred to in the June
2005 Purchase Agreement.
3. The last sentence of Section 10.4 set forth in the June 2005
Purchase Agreement is hereby deleted in its entirety and, in each case, the
following new sentence is hereby inserted in lieu thereof:
"Except upon the occurrence of an Event of Default (as defined
in the Note) and the continuance thereof, Purchaser may not assign its
rights hereunder to a competitor of the Company."
4. Section 4.8 of March 2004 Purchase Agreement and Section 6.4 of the
June 2005 Purchase Agreement are hereby deleted in their entirety and, the
following a new Section 4.8 and Section 6.4, respectively, are hereby inserted
in lieu thereof:
"Once the Company's revenue recognition investigation is
complete and the Company has filed its Form 10-K for the year ended
March 31, 2005 and the Forms 10-Q for quarters ended June 30, 2005 and
September 30, 2005 (the "Late Reports"), which Late Reports shall be
filed by January 23, 2005, and after the filing of the Late Reports,
the Company shall timely file with the SEC all reports required to be
filed pursuant to the Exchange Act and refrain from terminating its
status as an issuer required by the Exchange Act to file reports
thereunder even if the Exchange Act or the rules or regulations
thereunder would permit such termination. Promptly after (i) the filing
thereof, copies of the Company's most recent registration statements
and annual, quarterly, current or other regular reports which the
Company files with the Securities and Exchange Commission (the "SEC"),
and (ii) the issuance thereof, copies of such financial statements,
reports and proxy statements as the Company shall send to its
stockholders."
5. Midsummer understands that the Company has an affirmative obligation
to make prompt public disclosure of material agreements and material amendments
to such agreements. The Company hereby covenants to report the terms and
provisions of this Amendment on a current report on Form 8-K within four (4)
business days of the date hereof.
6. The first sentence of Section 4.5(c) of the March 2004 Purchase
Agreement shall be amended to state:
By February 1, 2006, the Company shall secure the listing of
the shares of Common Stock equal to the Required Minimum on
the NASD OTC Bulletin Board upon which shares of Common Stock
are listed and shall maintain such listing so long as any
other shares of Common Stock shall be so listed.
7. The first sentence of Section 6.2 of the Purchase Agreements shall
be amended to state:
By February 1, 2006, the Company shall secure the listing of
the shares of Common Stock issuable upon conversion of the
Note, upon the exercise of the Warrant and upon exercise of
the Option on the NASD OTC Bulletin Board (the "Principal
Market") upon which shares of Common Stock are listed and
shall maintain such listing so long as any other shares of
Common Stock shall be so listed.
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8. Midsummer consents to the Company issuing a Secured Term Note and
Option to Laurus Master Fund, Ltd. ("Laurus") on or around the date hereof on
terms no more favorable to Laurus than the terms of the Note and the Option are
to Midsummer.
9. Midsummer waives any and all rights to an adjustment of the
conversion price under the March 2004 Debenture, the warrant to purchase 434,783
shares of common stock issued to Midsummer on March 15, 2004, the warrant to
purchase 138,158 shares of common stock issued to Midsummer on July 1, 2003, the
warrant to purchase 629,143 shares of common stock issued to Midsummer on March
31, 2003, the warrant to purchase 200,000 shares of common stock issued to
Midsummer on November 30, 2004 or June 2005 Term Note triggered by the
consummation of the transactions contemplated by the Securities Purchase
Agreement between the Company and Midsummer dated as of the date hereof (the
"November 2005 Purchase Agreement") or triggered by the issuance of a Secured
Term Note and Option to Laurus dated as of the date hereof.
10. Section 3(a)(vii) of the Debenture is deleted in its entirety and
replaced as follows:
"(vii) At anytime after February 1, 2006, the Common Stock
shall not be eligible for quotation or quoted for trading on the Nasdaq
SmallCap Market, NASD OTC Bulletin Board, New York Stock Exchange,
American Stock Exchange, or Nasdaq National Market (each, a "Principal
Market") and shall not again be eligible for and quoted or listed for
trading thereon within five Trading Days;"
11. Section 4.7 of the Term Notes is deleted in its entirety and
replaced as follows:
"4.7 STOP TRADE. An SEC stop trade order or Principal Market
trading suspension of the common stock of the Borrower shall be in
effect for five (5) consecutive days or five (5) days during a period
of ten (10) consecutive days, excluding in all cases a suspension of
all trading on a Principal Market, provided that the Borrower shall not
have been able to cure such trading suspension within thirty (30) days
of the notice thereof or list the Common Stock on another Principal
Market within ninety (90) days of such notice. The "Principal Market"
for the Common Stock shall include the NASD OTC Bulletin Board, NASDAQ
SmallCap Market, NASDAQ National Market System, American Stock
Exchange, or New York Stock Exchange (whichever of the foregoing is at
the time the principal trading exchange or market for the Common
Stock)."
12. The definition of Filing Date in Section 1 of the March 2004 Reg.
Rights Agreements is deleted in its entirety and replaced as follows:
"FILING DATE" means, with respect to the initial Registration
Statement to be filed hereunder, a date no later than March 15, 2006
and, with respect to any additional Registration Statements which may
be required pursuant to Section 3(c), the 30th day following the date
on which the Company first knows, or reasonably should have known that
such additional Registration Statement is required hereunder but in no
event before March 15, 2006."
13. The definition of Filing Date in Section 1 of the June 2005 Reg.
Rights Agreement is deleted in its entirety and replaced as follows:
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"FILING DATE" means, with respect to (i) the Registration Statement
required to be filed hereunder in respect of the shares of Common
Stock issuable upon conversion of the Note, March 15, 2006 and (ii)
with respect to shares of Common Stock issuable to the Holder as a
result of adjustments to the Fixed Conversion Price made pursuant to
Section 3.4 of the Secured Convertible Term Note, Section 4 of the
Warrant or Section 4 of the Option or otherwise, thirty (30) days
after the occurrence of such event or the date of the adjustment of
the Fixed Conversion Price but in no event before March 15, 2006.
14. The definition of Effectiveness Date in Section 1 of the Reg.
Rights Agreements is deleted in its entirety and replaced as follows:
"EFFECTIVENESS DATE" means with respect to the initial
Registration Statement to be filed hereunder, the 135th calendar day following
the Filing Date and, with respect to any additional Registration Statements
which may be required pursuant to Section 3(c), the 60th calendar day following
the date on which the Company first knows, or reasonably should have known, that
such additional Registration Statement is required hereunder; provided, however,
in the event the Company is notified by the Commission that one of the above
Registration Statements will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth Trading Day following the date on which the Company is so
notified if such date precedes the dates required above."
15. The definition of Effectiveness Date in Section 1 of the Reg.
Rights Agreements is deleted in its entirety and replaced as follows:
"EFFECTIVENESS DATE" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later
than one hundred thirty five (135) days following the Filing Date and
(ii) with respect to each additional Registration Statement required to
be filed hereunder, a date no later than thirty (30) days following the
applicable Filing Date."
16. Section 2(b)(iv) of the June 2005 Reg. Rights Agreements is deleted
in its entirety and replaced as follows:
"(iv) after the Company's Common Stock is listed on the NASD
OTC Bulletin Board as required pursuant to Section 7 below, the Common Stock is
not listed or quoted, or is suspended from trading on any Trading Market for a
period of three (3) consecutive Trading Days (provided the Company shall not
have been able to cure such trading suspension within 30 days of the notice
thereof or list the Common Stock on another Trading Market) . . ."
17. Section 6(b) of the June 2005 Reg. Rights Agreements is deleted in
its entirety.
18. A new Section 7 that provides as follows is inserted into the June
2005 Reg. Rights Agreement:
"7. "Quotation on NASD OTC Bulletin Board. As of February 1,
2006, the Common Stock shall be quoted on the NASD OTC Bulletin Board
and satisfies all requirements for the continuation of such quotation.
From and after February 1, 2006 the Company shall notify the Purchaser
within two (2) days if it receives any notice that its Common Stock
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will no longer be quoted on the NASD OTC Bulletin Board or that the
Common Stock does not meet all requirements for the continuation of
such quotation."
19. Midsummer hereby agrees to waive its rights under Section 4.3 of
the March 2004 Purchase Agreement, and Sections 3(a)(ii), 3(a)(v), 3(a)(vii),
3(a)(viii) and 4(c)(viii) of the March 2004 Debenture and Section 2 of the March
2004 Reg. Rights Agreement and any other rights under the foregoing agreements
resulting from: (1) the Company's failure to file Registration Statement by the
Filing Date or have such Registration Statement declared effective by the
Effectiveness Date, (2) the Company's Common Stock being delisted from the
American Stock Exchange, (3) the Company's failure to timely file its Form 10-K
for the year ended March 31, 2005 or its Forms 10-Q for the quarters ended June
30, 2005 and September 30, 2005 and (4) the Company's failure to seek
shareholder approval for the consummation of the transactions contemplated by
the March 2004 Purchase Agreement prior to entering into securities purchase
agreements with Midsummer and Laurus on or November 15, 2005, which, without
this Amendment, would result in a reset to the conversion price under the March
2004 Debenture.
20. Each amendment and waiver set forth herein shall be effective as of
the date first above written (the "AMENDMENT EFFECTIVE DATE") on the date when
each of the Company and Midsummer shall have executed and the Company shall have
delivered to Midsummer its respective counterpart to this Amendment.
21. Except as specifically set forth in this Amendment, there are no
other amendments, modifications or waivers to the Notes, Purchase Agreements or
Reg. Rights Agreements, and all of the other forms, terms and provisions of the
Notes, Purchase Agreements and Reg. Rights Agreements remain in full force and
effect.
22. The Company hereby represents and warrants to Midsummer that after
giving effect to this Amendment and the Amendment and Waiver between the Company
and Laurus dated on or around the date hereof: (i) no Event of Default exists
under Sections 4.2 and 4.9 of the June 2005 Term Note or Sections 3(a)(ii),
3(a)(v), 3(a)(vii), 3(a)(viii) or 4(c)(viii) of the March 2004 Debenture on the
date hereof resulting from (A) the Company's failure to file a Registration
Statement as of the date hereof or have such Registration Statement declared
effective as of the date hereof, (B) the delisting of the Company's Common Stock
from AMEX, or (C) the Company's failure, as of the date hereof, to file its
Annual Report on Form 10-K for the fiscal year ended March 31, 2005 or its
Quarterly Reports on Forms 10-Q for the fiscal quarters ended June 30, 2005 and
September 30, 2005; (ii) on the date hereof, all representations, warranties and
covenants made by the Company in connection with the Notes and the Purchase
Agreements are true, correct and complete except as qualified or limited in any
manner by the information set forth in the disclosure schedule delivered by the
Company to Midsummer pursuant to Section 4 of the November 2005 Purchase
Agreement or the SEC Reports and except for the representation in Section 3(ee)
of the March 2004 Purchase Agreement (regarding the Company's S-3 eligibility);
and (iii) on the date hereof, all of the Company's and its Subsidiaries'
covenant requirements set forth in the Notes, the Purchase Agreements, the Reg.
Rights Agreements and Related Agreements (as defined or referred to in the
respective Purchase Agreements) have been met.
23. From and after the Amendment Effective Date, all references to the
Notes, the Purchase Agreements and the Reg. Rights Agreements shall be deemed to
be references to the Notes, Purchase Agreements and Reg. Rights Agreements as
modified hereby.
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24. This Amendment shall be binding upon the parties hereto and their
respective successors and permitted assigns and shall inure to the benefit of
and be enforceable by each of the parties hereto and their respective successors
and permitted assigns. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This Amendment
may be executed in any number of counterparts, each of which shall be an
original, but all of which shall constitute one instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the Company and Midsummer has caused this
Amendment to be signed in its name effective as of this ____ day of November
2005.
ISLAND PACIFIC, INC.
By: ________________________________
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
MIDSUMMER INVESTMENT, LTD.
By: ________________________________
Name:
Title:
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