EXHIBIT 10.31
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (this "Amendment") is entered into as of April 3,
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 and the Third Amendment dated as
of March 28, 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 3.07 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:
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 June 30, 2003.
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2. EXTENSION OF REGISTRATION STATEMENT FILING DATE UNDER THE INVESTORS'
RIGHTS AGREEMENT. The date contained in Section 1.3(a) of the Investors' Rights
Agreement for filing of the registration statement contemplated by Section 1.3
of the Investors' Rights Agreement hereby is extended to April 15, 2003, subject
however to such registration statement becoming effective by the date set forth
below in Section 3 of this Amendment.
3. 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 June 30, 2003.
4. 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 3 of this Amendment.
5. 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").
6. 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 and Xxxxx &
Xxxxxxx 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 Transactions did result in a Section 16 Event and in Section 16
Liability on the part of the Koyah Party as a result thereof.
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7. EFFECTIVENESS OF AMENDMENT. The effectiveness of this Amendment
shall be conditioned upon the Company paying by April 4, 2003 a total of $6,000,
as partial payment of legal fees and expenses of Paine, Hamblen, Xxxxxx, Xxxxxx
& Xxxxxx LLP and Xxxxx & Xxxxxxx LLP which are payable by the Company under the
Amendment Agreement, the Investors' Rights Agreement, the Prior Amendments or
this Amendment.
8. 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.
9. 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: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
"INVESTORS"
KOYAH LEVERAGE PARTNERS, L.P.
By: Koyah Ventures LLC, its general partner
By: /s/ Xxxxxx Xxx
---------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
KOYAH PARTNERS, L.P.
By: Koyah Ventures LLC, its general partner
By: /s/ Xxxxxx Xxx
---------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
RAVEN PARTNERS, L.P.
By: Koyah Ventures LLC, its general partner
By: /s/ Xxxxxx Xxx
---------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
[Signature Page to Fourth Amendment]
